RSA No.1495 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1495 of 2010(O&M) Date of decision: 5.7.2010 Labh Singh etc. ......Appellant(s) Versus Santokh Singh & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Nagra, Advocate for the appellants. Rakesh Kumar Garg, J. The appellants, who were defendants No.2 to 6 and 13 before the trial Court, have filed the instant appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the plaintiff- respondent Santokh Singh was allowed and that of Swaran Kaur-defendant No.1 was dismissed against the decree dated 25.3.2002 of the trial Court. As per the averments made in the suit, the property in dispute was an ancestral property which vested in Santokh Singh and Ujjagar Singh in equal share. The said property was a joint property. The said Ujjagar Singh and defendants No.1 to 6 (who are his successors-in- interest), had sold the land, out of the suit property in excess of their share by way of sale of specific khasra numbers. The aforesaid Ujjagar Singh was having only half share in the suit property and had no right to sell specific khasra numbers and more than his share out of the suit property. Thus, in the suit, declaration was sought to the effect that the plaintiff was owner to the extent of half share of the land measuring 37 RSA No.1495 of 2010(O&M) 2 kanals 14 marlas situated in village Bhangwan, Tehsil and District Gurdaspur, as detailed in the head note of the suit and sale deeds executed by Ujjagar Singh and defendants No.1 to 6 in favour of the other defendants were illegal, null and void with consequential relief of permanent injunction restraining the defendants not to alienate and dispossess the plaintiff-Santokh Singh in any manner from the suit property. Upon notice, defendant No.1 to 6 and defendant No.13 Ajit Singh (the appellants), appeared in Court and filed joint written statement raising various preliminary objections. On merits, it was admitted that the property in dispute was ancestral but it was denied that the plaintiff and Ujjagar Singh were owners in the suit property in equal share. It was further stated that Sudha Singh was owner of the land measuring 8 kanals 1 marla situated in village Bholeke, Tehsil Batala District Gurdaspur. He died leaving behind his sons, namely, Ujjagar Singh, Munsha Singh and Kartar Singh. Kartar Singh also died and his share in the suit property devolved upon Ujjagar Singh and Munsha Singh. Ujjagar Singh also died on 10.7.1994 leaving behind defendants No.1 to 6 as his legal heirs. Munsha Singh died on 7.11.1988 and his estate devolved upon Santokh Singh- plaintiff and his mother Gurcharan Kaur. It was further stated that during the life time of Sudha Singh, Munsha Singh had executed an agreement on 8.8.1962 whereby he had agreed that he would claim land measuring 8 kanals less than his share out of joint khata. He also agreed that Sudha Singh may sell the land measuring 8 kanals 1 marla situated in village Bholeke. It was further stated that on the basis of the aforesaid agreement dated 8.8.1962, Sudha Singh, father of Ujjagar Singh and Munsha Singh, executed sale deed dated 3.12.1983 in favour of Bahadur Singh etc. regarding land measuring 8 kanals situated in village Bhokeke. Munsha RSA No.1495 of 2010(O&M) 3 Singh used the proceeds of the land measuring 8 kanals 1 marla as aforesaid and therefore, he was to claim the land measuring 8 kanals less than his share in the suit land situated in village Bhangwan and thus, in this way Ujjagar Singh and Munsha Singh were not having equal share in the suit property and on the basis of the family partition, the parties had come in possession of their respective share and plaintiff-respondent No.1 was left with no right or title in the suit property. It was further stated that defendants No.1 to 6 had further sold land measuring 5 kanals 9 marlas to Ajit Singh (defendant No.13) on 17.1.1997. Mutation was also sanctioned in his favour on the basis of the aforesaid sale deed and he was in cultivating possession of the suit property. It was further stated that the plaintiff and his mother had executed a sale deed with regard to specific khasra numbers, and, therefore, they had no locus standi to restrain the defendants from selling the specific khasra numbers out of suit property and thus, the plaintiff had no right to seek declaration as prayed. In the replication, the plaintiff controverted the averments as made in the written statement and reiterated the case as put forward in the plaint. From the perusal of the pleadings, the following issues were framed: “1.Whether the plaintiff is owner in possession of the suit property to the extent of ½ share in the same? OPP 2. Whether the sale deeds dated 17.6.1974, 17.12.1984, 17.12.1984, and 17.1.1997 executed by Ujjagar Singh as defendants No.1 to 6 in favour of defendants No.7 to 11 are null and void? OPP 3. If issues No.1 and 2 are proved, whether the plaintiff is entitled for permanent injunction? OPP RSA No.1495 of 2010(O&M) 4 4. Whether any agreement dated 8.8.1962 was executed between Ujjagar Singh, Munsha Singh and Kartar Singh, if so, its effect? OPD 5. Whether any sale deed dated 3.12.1963 was executed by Sudha Singh son of Natha Singh in favour of Bahadur Singh son of Kesar Singh and others of village Bholeke, on the basis of agreement dated 8.8.1962, and its effect? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD 8. Relief.” Thereafter, the trial Court, after hearing learned counsel for the parties, partly decreed the suit of the plaintiff-respondent holding that only the sale deed dated 17.1.1997 (Ex.D1) pertaining to the sale of the land measuring 5 kanals 9 marlas to Ajit Singh-defendant No.13 was void to the extent of 1 kanals 6 ½ marlas and the defendants were restrained from alienating the aforesaid land and from dispossessing the plaintiff- respondent from the same illegally and forcibly. It was further directed that the plaintiff-respondent shall file a petition for partition and possession of the aforesaid land before the Revenue Authorities. Not satisfied with the aforesaid judgment and decree of the trial Court, the plaintiff-respondent Santokh Singh filed Civil Appeal No.92 of 17.5.2002 before the Lower Appellate Court. Civil Appeal No.32 of 18.9.2006 was filed by the appellants also challenging the judgment and decree of the trial Court. The Lower Appellate Court vide impugned judgment and RSA No.1495 of 2010(O&M) 5 decree dated 15.12.2009, accepted the appeal filed by Santokh Singh plaintiff-respondent and dismissed the appeal filed by the appellants. While deciding the aforesaid appeals, it was held that the agreement dated 8.8.1962 was never acted upon between the parties and Ujjagar Singh was owner of the land measuring 18 kanals 17 marlas in village Bhangwan. He had sold the land measuring 18 kanals 15 marlas during his life time and was left with only 2 marlas of the suit land whereas his heirs executed the sale deed in favour of Ajit Singh to the extent of 5 kanals 9 marlas of land. Thus, the appellants had sold 5 kanals 7 marlas of the excess area, therefore, the sale deed dated 17.1.1997 was null and void to the extent of 5 kanals 7 marlas of land and the plaintiff-respondent and his mother were declared owners in possession of ½ share of the total land in village Bhangwan. Still not satisfied, defendants No.2 to 6 and 13 have filed the instant appeal raising the following substantial questions of law: “a) Whether the impugned judgment and decree dated 15.12.2009 and 25.3.2002 passed by the courts below are contrary to law, evidence and facts on the file? b) Whether the sale deed dated 17.1.97 made in favour of Ajit Singh has been wrongly set aside by the Courts below? c) Whether the appellant Ajit Singh is a bona fide vendee and protected U/s 41 of the Transfer of Property Act? d) Whether family settlement dated 8.8.62 was executed between Ujjagar Singh, Munsha Singh and Kartar Singh? e) Whether as per the family settlement dated 8.8.62 8 RSA No.1495 of 2010(O&M) 6 K-0 M area land was to be given to Munsha Singh father of the plaintiff? f) Whether the impugned Judgments and Decrees passed dated 15.12.09 and 25.03.02 by the courts below are against law as well as principle of natural justice?” In support of the appeal, learned counsel for the appellants has vehemently argued that there was sufficient documentary and oral evidence on record to prove the execution of agreement dated 8.8.1962 and therefore, the Lower Appellate Court erred at law while not relying upon the same. It has further argued that the Courts below have also failed to appreciate that the land situated in village Bholeke has been proved to be sold vide sale deed dated 3.12.1963 and thus, the Courts below should have determined the share of the parties after relying upon the aforesaid document and thus, the impugned judgment and decrees are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. The pith and substance of the argument raised by the learned counsel for the appellants is that the findings of the Courts below are perverse as the material evidence on record in the shape of agreement dated 8.8.1962 (Ex.D1) executed by Munsha Singh and the sale deed dated 3.12.1963 (Ex.D2) executed by Sudha Singh have been erroneously ignored. It is not in dispute that the original of the agreement dated 8.8.1962 (Ex.D1) is in Urdu script and a Punjabi Translation thereof was placed on the file to prove the same. However, it is not disputed that the aforesaid Punjabi translation of the document Ex.D1 was not certified and notarized as per the rules framed by this Court under the Civil Procedure RSA No.1495 of 2010(O&M) 7 Code. Not only this, the Lower Appellate Court has also recorded a finding of fact that the aforesaid alleged agreement was never acted upon between the parties. It may also be noticed that the sale deed dated 3.12.1963 (Ex.D2) was also not proved on record of the file in accordance with law. Admittedly, a certified copy of Ex.D2 has been placed on record instead of the original. It has not been explained as to how, in the absence of any permission of the Court, the said document could be proved by way of secondary evidence. Not only this, the sale deed executed by Sudha Singh, father of the parties, pertains to land measuring 8 kanals 1 marlas situated in village Bholeke whereas in the present suit, the appellants are claiming their right to the extent of half share qua the suit land i.e. 37 kanals 14 marlas situated in village Bhangwan Tehsil and Distt. Gurdaspur and thus, the aforesaid documents have been rightly discarded by the Courts below and no error can be found in the impugned judgment and decrees. In this view of the matter, I find no merit in this appeal. No substantial question of law, as argued, arises in this appeal. Dismissed. July 5, 2010 (RAKESH KUMAR GARG) ps JUDGE