RSA No.4528 of 2010 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4528 of 2010 (O & M) Date of Decision: 28.02.2011 Noor Mohd. ……Appellant Versus Mehboob Khan and others …... Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Kanwaljit Singh, Sr. Advocate with Mr. Puneet Kumar Bansal, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.13476-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 47 days in filing the appeal is condoned. CM No.13477-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 62 days in re-filing the appeal is condoned. Main appeal. Noor Mohd., who is son and legal representative of Mehtab Khan-defendant No.1 since deceased, has filed the instant second appeal, having remained unsuccessful in both the Courts below. Suit was filed by Mehboob Khan-respondent No.1-plaintiff against Mehtab Khan-defendant No.1 (represented by the appellant) and respondent Nos.2 and 3 as defendant Nos.2 and 3. Defendant RSA No.4528 of 2010 (O & M) - 2 – Nos.2 and 3 are daughters of Chau Khan whereas defendant No.1 was brother of Chau Khan. The plaintiff’s case is that he purchased the suit land from Chau Khan vide two sale deeds dated 16.05.1994 and 17.05.1994. Accordingly, the plaintiff claimed that he is owner in possession of the suit land and the judgment and decree dated 21.01.1999 obtained by defendant No.1 in counter-claim in some previous suit are null and void and not binding on the plaintiff. Defendant Nos.2 and 3 were given up in the trial Court. Defendant No.1 contested the suit and inter alia pleaded that by way of judgment and decree dated 21.01.1999 in the counter- claim in the previous suit, he is owner in possession of the suit land. It was alleged that Chau Khan died on 17.05.1995. He was old and ill and had no sense of good and bad. The plaintiff in collusion with defendant Nos.2 and 3 got the alleged sale deeds executed during the pendency of the counter-claim of defendant No.1 in the previous suit so as to defeat the rights of defendant No.1 and to grab the suit land. The said sale deeds are null and void and plaintiff has no right, title or interest in the suit land. It was also alleged that defendant No.1 has challenged the said sale deeds by way of separate suit. Various other pleas were also raised Learned Additional Civil Judge (Senior Division), Faridabad vide judgment and decree dated 29.07.2008 decreed the plaintiff’s suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 08.01.2010. Feeling aggrieved, legal representative of defendant No.1 has preferred the instant second appeal. RSA No.4528 of 2010 (O & M) - 3 – I have heard learned senior counsel for the appellant and perused the case file. Learned senior counsel for the appellant vehemently contended that in view of judgment and decree dated 21.01.1999 passed in counter-claim in favour of defendant No.1 in the previous suit, defendant No.1 is owner in possession of the suit land and the alleged sale deeds in favour of the plaintiff confer no right, title or interest on the plaintiff in the suit land. The contention is completely misconceived and untenable. The previous suit had been instituted by defendant Nos.2 and 3 herein against their father Chau Khan. Defendant No.1 herein became party to that suit as defendant No.2 and made counter-claim. The said counter-claim was decreed against defendant Nos.2 and 3 who were plaintiffs in that suit and not against Chau Khan, who himself was defendant No.1 in that suit. In addition to it, long before the said counter-claim was decreed, Chau Khan himself sold the suit land to the plaintiff and, therefore, the plaintiff became owner in possession of the suit land. Counter claim of defendant No.1 herein as made in the previous suit was on the basis that Chau Khan had no male issue and, therefore, he could not transfer the suit land to his daughters defendant Nos.2 and 3 herein, who were plaintiffs in the previous suit. The said claim of defendant No.1 herein was accepted. However, the said claim did not deprive Chau Khan himself of the ownership of the suit land during his life time. In other words, Chau Khan continued to be owner of the suit land during his life time. He sold the suit land to the plaintiff vide sale deeds dated 16.05.1994 and 17.05.1994. Consequently, the plaintiff became owner in possession of the suit land and no right, title or RSA No.4528 of 2010 (O & M) - 4 – interest in the suit land was left in the hands of Chau Khan so as to be inherited by defendant No.1 herein pursuant to his counter-claim in the previous litigation. From the aforesaid, it is manifest that suit of the plaintiff has been rightly decreed by the Courts below. As per admitted or established facts, defendant No.1 could have no right, title or interest in the suit land because Chau Khan himself had sold the same to the plaintiff. Pursuant to judgment and decree dated 21.01.1999 decreeing the counter-claim of defendant No.1 herein in the previous suit, defendant No.1 could have inherited the suit land from Chau Khan if Chau Khan had continued to remain owner thereof till his death. Since Chau Khan himself sold the suit land to the plaintiff, the question of inheritance of the suit land by defendant No.1 herein from Chau Khan did not arise. Consequently, there is no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. On the contrary, even separate suit filed by defendant No.1 herein to challenge the aforesaid sales, has been dismissed by both the Courts below and RSA No.1008 of 2011 preferred in the said suit is also being dismissed by separate order of even date after hearing learned counsel for the appellant in that case. For this reason as well, the instant second appeal has no merit. Accordingly, the appeal is dismissed in limine. 28.02.2011 (L. N. MITTAL) A.kaundal JUDGE