RSA No.1335 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1335 of 2011 (O & M) Date of Decision: 21.03.2011. Sita Ram ……Appellant Versus Parveen Kumar and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. N. K. Malhotra, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.3736-C of 2011 Allowed as prayed for. CM No.3737-C of 2011 For reasons mentioned in the application which is accompanied by affidavit, delay of 54 days in filing the appeal is condoned. Main Appeal. Sita Ram-defendant No.1, having lost in both the Courts below, has filed the instant second appeal. RSA No.1335 of 2011 (O & M) - 2 - Respondent No.1-plaintiff –Parveen Kumar filed suit against defendant No.1-appellant and against proforma respondent Nos.2 and 3 as defendant Nos.2 and 3. The plaintiff alleged that defendant No.3-Bimla was owner in possession of the suit land measuring 7 kanals 9 marlas being 1/7th share of 52 kanals 3 marlas land having inherited it from her father Inder Singh. Plaintiff is brother’s son of defendant No.3. Defendant No.3 gifted the suit land to the plaintiff vide registered release deed dated 07.02.2003 and also delivered possession of the suit land to him. Since then he is owner in possession of the suit land. However, defendant Nos.1 and 2 by playing fraud upon defendant No.3 obtained release deed dated 08.09.2003 from defendant No.3 in favour of defendant No.2. Mutation thereof was sanctioned on 16.09.2003. Thereafter defendant No.2 sold the suit land to defendant No.1 vide sale deed dated 19.09.2003. The plaintiff alleged that defendant No.3 was not owner of the suit land when she executed release deed dated 08.09.2003 and consequently, defendant Nos.1 and 2 did not get any right in the suit and release deed dated 08.09.2003 and sale deed dated 19.09.2003 mentioned hereinbefore are null and void and not binding on the plaintiff. Defendant No.1 contested the suit and claimed himself to be owner in possession of the suit land in view of sale deed dated 19.09.2003. He also alleged to be bonafide purchaser of the suit land for consideration having purchased it after making inquiries from the plaintiff and also after seeing the revenue record. Plaintiff and RSA No.1335 of 2011 (O & M) - 3 - defendant Nos.2 and 3 belong to the same family and the suit has been filed in collusion with each other. Various other pleas were also raised. Learned Civil Judge (Junior Division), Bhiwani vide judgment and decree dated 23.07.2009 decreed the plaintiff’s suit. First appeal preferred by defendant No.1 had been dismissed by learned Additional District Judge, Bhiwani vide judgment and decree dated 21.09.2010. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant reiterated the plea of defendant No.1-appellant that he is bonafide purchaser of the suit land for consideration. The said plea has been negatived by both the Courts below and rightly so. Defendant No.3 had executed release deed dated 07.02.2003 of the suit land in favour of the plaintiff. Thereupon plaintiff became owner in possession of the suit land. Defendant No.3 was left with no right, title or interest therein. Consequently, subsequent release deed dated 08.09.2003 allegedly executed by defendant No.3 in favour of defendant No.2 is illegal, null and void and could not confer any right, title or interest in the suit land on defendant No.2. For the same reason, subsequent sale deed dated 19.09.2003 executed by defendant No.2 in favour of defendant No.1 is also illegal, null and void and not binding on the RSA No.1335 of 2011 (O & M) - 4 - plaintiff. It is highly significant to notice that everything regarding release deed dated 08.09.2003 and sale deed dated 19.09.2003 took place in quick succession and in tearing hurry. Defendant No.2 obtained release deed in his favour on 08.09.2003, got the mutation sanctioned immediately on 16.09.2003 and executed sale deed immediately thereafter on 19.09.2003 in favour of defendant No.1. This sequence of events by itself is sufficient to conclude that defendant No.1 is not bonafide purchaser of the suit land. In addition to the aforesaid, the plaintiff examined defendant No.3 Bimla as PW-3. She has stated that release deed dated 08.09.2003 was obtained from her by fraud on the pretext of getting pension sanctioned for her. Learned counsel for defendant No.1-appellant is not even aware if defendant No.1 has examined any attesting witness of release deed dated 08.09.2003 as witness in the instant lis or not. Moreover, defendant No.1 alleged in the written statement that he had made inquiries from the plaintiff before purchase of the suit land but there is no evidence to substantiate the said plea. On the other hand, the said plea is intrinsically and inherently unacceptable because if defendant No.1 had made inquiry from the plaintiff, the plaintiff would have immediately told defendant No.1 about the release deed dated 07.02.2003 already executed in his favour by defendant No.3 regarding the suit land. In addition to it, defendant No.1 should have inspected the record of registration which would have revealed that seven months before the release deed executed RSA No.1335 of 2011 (O & M) - 5 - by defendant No.3 in favour of defendant No.2, defendant No.3 had already executed registered release deedin favour of the plaintiff. Consequently, it cannot be said that defendant No.1-appellant made proper inquiries before purchasing the suit land. In other words, defendant No.1-appellant cannot be said to be bonafide purchaser of the suit land. It may also be added that defendant No.1 had earlier purchased some land from Balraj brother of defendant Nos.2 and 3. It would depict that defendant No.1 was very familiar with family members of plaintiff and defendant Nos.2 and 3. Consequently, defendant No.1 would not have been unaware of the release deed already executed by defendant No.3 in favour of the plaintiff. Defendant No.1 also belongs to the same village as plaintiff and defendant Nos.2 and 3. Defendant No.1 has examined Ujala DW-2, who belongs to family of plaintiff and defendant Nos.2 and 3. However, Ujala stated that he did not know if Bimla defendant No.3 had executed release deed in favour of plaintiff. The testimony of Ujala DW-2 is, therefore, not reliable. Moreover, Ujala also did not know if defendant No.3 had given her land to defendant No.2. It would depict that Ujala DW-2 is a procured witness and his testimony is completely incredible. Ujala DW-2 did not even know if defendant No.2 sold the suit land to defendant No.1. Consequently, testimony of Ujala DW-2 does not depict that defendant No.1 is bonafide purchaser of the suit land. RSA No.1335 of 2011 (O & M) - 6 - There is another significant circumstance depicting that defendant No.1 is not bonafide purchaser of the suit land. Defendant No.3 Bimla while appearing as PW-3 stated that plaintiff is in possession of the suit land since the very beginning. It is also recited in release deed dated 07.02.2003 that possession of the suit land has been delivered to the plaintiff. This fact is further fortified by the evidence of defendant No.1 himself. His witness Ujala DW-2 stated in cross-examination that plaintiff is in possession of the suit land. Yudhbir Singh DW-6 another witness of defendant No.1 expressed ignorance as to whether plaintiff or defendant No.1 is in possession of the suit land. On the other hand, Yudhbir Singh admitted that construction raised by defendant No.1 is in the land purchased by him from Balraj and not in the suit land. It is thus apparent that plaintiff was in possession of the suit land when subsequent release deed dated 08.09.2003 was executed by defendant No.3 in favour of defendant No.2 and when sale deed dated 19.09.2003 was executed by defendant No.2 in favour of defendant No.1. If defendant No.1 had been bonafide purchaser of the suit land, he would have immediately come to know about release deed dated 07.02.2003 in favour of the plaintiff because plaintiff was in possession of the suit land. Learned counsel for the appellant contended that mutation had not been sanctioned in favour of the plaintiff on the basis of release deed dated 07.02.2003. However, merely because mutation was not sanctioned for about seven months in favour of the RSA No.1335 of 2011 (O & M) - 7 - plaintiff, it cannot be said that defendant No.1 is bonafide purchaser of the suit land. On the other hand, keeping in view the circumstances noticed hereinbefore, defendant No.1 is not proved to be bonafide purchaser of the suit land. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below that defendant No.1-appellant is not bonafide purchaser of the suit land is fully justified by the evidence on record and is supported by various reasons recorded by the lower Courts. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 21.03.2011 A.kaundal