IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 760 of 2005 Date of Decision : September 11, 2009 Karnail Singh ....Appellant Versus Paramdeep Singh and another ....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. P.K. Gupta, Advocate Mr. Salil Sagar, Senior Advocate with Ms. Lovejinder Kaur, Advocate T.P.S. MANN, J. Suit for declaration filed by the respondents was decreed by Additional Civil Judge (Senior Division), Hoshiarpur on 29.4.2002 which judgment and decree was upheld by Additional District Judge, Hoshiarpur on 8.10.2004 by dismissing the first appeal filed by the appellant, who is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiffs-respondents, one Suhel Singh was the owner of land measuring 10 kanals 12 marlas. After his death, the estate devolved upon his three daughters, namely Beant Kaur, Jito and Bachni in equal shares. The share of Bachni was purchased by Satnam Kaur. Jito, daughter of Suhel Singh, sold her share to the R.S.A. No. 760 of 2005 -2- plaintiffs vide registered sale deed dated 26.6.1987. Beant Kaur, the third daughter of Suhel Singh, appointed her son Harbhajan Singh as general attorney vide registered power of attorney dated 24.4.1986, whereas Satnam Kaur appointed her husband Surjit Singh as her general attorney vide registered power of attorney dated 24.4.1986. Both Harbhajan Singh and Surjit Singh, attorneys of Beant Kaur and Satnam Kaur, respectively, executed registered sale deed dated 29.7.1987 in favour of the plaintiffs regarding the share of their principals in the disputed land. Thus, the plaintiffs became owners in possession of the entire suit land on the strength of the sale deeds in their favour. Mutation of the sale deed dated 29.7.1987 was dismissed for non- prosecution. Taking undue advantage of the said fact, the defendant/ appellant procured registered sale deeds from Beant Kaur on 16.10.1989 and 2.2.1996. These sale deeds relating to the suit land were illegal, null and void and not binding upon the rights of the plaintiffs because Beant Kaur was not having any saleable interest in the suit land. The defendant had notice of the sale deeds in favour of the plaintiffs, the sale deeds being registered documents. Therefore, the subsequent mutation sanctioned in favour of the defendant on the basis of the aforesaid sale deeds was not binding upon the plaintiffs. On the basis of those sale deeds, the defendant tried to interfere in the possession of the plaintiffs over the suit land and, therefore, they filed suit for declaration so as to claim title over the suit property with consequential relief of injunction R.S.A. No. 760 of 2005 -3- so as to restrain the defendant from dispossessing them from the suit land. The plaintiffs had earlier filed a suit for permanent injunction which was dismissed by the trial Court. In the first appeal, the appellate Court set aside the judgment impugned therein and granted permission to the plaintiffs to file a fresh suit on the same subject matter by way of challenging the sale deeds by Beant Kaur in favour of the defendant. subject to payment of Rs.3,000/- as costs. Armed with the necessary permission, the plaintiffs filed fresh suit for declaration and consequential relief. It was also pleaded that in case it was found that the defendant was successful in taking forcible possession of any portion of the suit land on the basis of wrong revenue entries, relief of possession qua the said portion be granted. In his written statement, the defendant admitted that the estate of Suhel Singh devolved upon his three daughters. Gurbachan Kaur @ Bachani had died and her son Budh Singh succeeded to her estate. The total land owned by Suhel Singh was 90 kanals. Budh Singh entered into an agreement to sell 29 kanals of land in favour of the defendant. He, however, sold 14 kanals of the land in favour of the defendant but refused to execute the sale deed for the remaining land in favour of the defendant. Beant Kaur was admittedly owner of 1/3rd share in the disputed land but she executed sale deed dated 16.10.1989 of 8 kanals 4 marlas of the land for a consideration of Rs.38,350/- in favour of the defendant and he was put in possession of the land on the same R.S.A. No. 760 of 2005 -4- day. Similarly, Beant Kaur also sold 2 kanals 13 marlas out of the total land measuring 7 kanals 18 marlas vide registered sale deed dated 2.2.1996 for a consideration of Rs.34,000/-. Sale deeds relied upon by the plaintiffs were forged and fictitious documents. It was denied that the plaintiffs entered into possession of any portion of the suit land. The defendant was a bonafide purchaser of the land in dispute. The possession of the defendant had already been upheld in the previous suit decided by Sub Judge 2nd Class, Hoshiarpur, wherein the sale deeds set up by the plaintiffs were found to be fictitious documents. The suit was also barred by the principle of res judicata. After filing of the replication by the plaintiffs wherein they denied execution of any agreement to sell by Budh Singh in favour of the defendant, learned trial Court framed the following issues:- 1. Whether the plaintiff has no locus standi to file the present suit? OPD. 2. Whether the suit is barred by principles of res judicata? OPD. 3. Whether the plaintiffs are owners in possession of the suit land? OPP. 4. Whether the sale deeds dated 16.10.1989 and 2.2.1996 executed by Beant Kaur in favour of the defendant are illegal, null and void and not binding on the rights of the plaintiffs? OPP. 5. Whether the plaintiffs are entitled to the R.S.A. No. 760 of 2005 -5- declaration and injunction as prayed for? OPP. 5A. Whether the plaintiffs are entitled to the possession, in alternative relief, as prayed for? OPP. 6. Relief. After hearing learned counsel for the parties, learned trial Court held that the principle of res judicata was not applicable to the facts of the present case as vide judgment Ex.P11 passed by Additional District Judge, Hoshiarpur, the plaintiffs had been granted permission to file fresh suit on the same cause of action. The plaintiffs were successful in proving that Beant Kaur had no right and share in the property in dispute in the years 1989 and 1996 when she sold the suit property in favour of the defendant. Therefore, the sale deeds dated 2.2.1996 and 16.10.1989 were illegal, null and void and not binding on the rights of the plaintiffs. However, as they were not in possession over the property in dispute they were not entitled to the injunction as prayed for. Accordingly, suit filed by the plaintiffs was decreed and they were declared exclusive owners of the land measuring 10 kanals 12 marlas and, therefore, entitled to take possession of the same from the defendant. The sale deeds dated 16.10.1989 and 2.2.1996 executed by Beant Kaur in favour of the defendant were declared null and void and, therefore, illegal. As mentioned above, the findings arrived at by the R.S.A. No. 760 of 2005 -6- trial Court were upheld in appeal by the first appellate Court. I have heard learned counsel for the parties and perused the impugned judgments. It is true that the present suit was filed by the plaintiffs on 20.1.1998 so as to challenge the sale deeds executed by Beant Kaur on 16.10.1989 and 2.2.1996. Regarding the second sale deed apparently the suit was within limitation. As regards the first sale deed, the suit had been filed after more than nine years. Despite the same, neither in his written statement nor at the time of framing of the issues, the defendant asserted that the suit be dismissed on the ground of limitation. Even before the Courts below, no plea of limitation had been raised by the defendant. While filing the present appeal against the judgments and decrees passed by the two Courts below, the defendant no where raised the plea of limitation. Under these circumstances, the defendant in his second appeal cannot be heard saying that the suit filed by the plaintiffs especially in regard to sale deed dated 16.10.1989 was beyond the prescribed period of limitation. Admittedly, Beant Kaur had 1/3rd share in the property in dispute. She had executed registered power of attorney in favour of her son Harbhajan Singh on 24.4.1986. On the basis of registered power of attorney Ex.P7, Harbhajan Singh executed the sale deed belonging to the share of his mother Beant Kaur in favour of the plaintiffs vide R.S.A. No. 760 of 2005 -7- registered sale deed Ex.P14 on 29.7.1987. As mutation of the sale deed dated 29.7.1987 was dismissed for non-prosecution, the defendant took undue advantage of the said fact and was able to procure registered sale deeds from Beant Kaur on 16.10.1989 and 2.2.1996 regarding the suit property. Though the defendant stepped into the witness box and deposed that Beant Kaur executed the sale deeds in his favour yet he claimed to be a bonafide purchaser without notice of previous sale deed alleged to have been executed by Beant Kaur in favour of the plaintiffs. He simply stated that mutation proceedings were dismissed. He, however, did not examine any evidence to prove that the power of attorney executed by Beant Kaur in favour of Harbhajan Singh was a fictitious document. Beant Kaur was very much alive and the defendant could have produced her as his witness to prove that the power of attorney executed by her in favour of Harbhajan Singh was forged document and instead, she had sold the land in dispute in favour of the defendant. Once it is admitted that the mutation on the basis of the sale deed dated 29.7.1987 was dismissed for want of prosecution, the defendant cannot be heard saying that the plaintiffs had not become owner of the suit property on the basis of the said sale deed. Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value of title. At the most, it enables the person in whose favour mutation is ordered, to pay the land revenue. However, on account of the fact that mutation on the basis of sale deed dated R.S.A. No. 760 of 2005 -8- 29.7.1987 had not been entered, the defendant jumped to grab an opportunity by getting sale deeds executed by Beant Kaur in his favour on 16.10.1989 and 2.2.1996. The concurrent findings of facts arrived at by the learned Courts below are based upon proper appreciation of the evidence available on the record. Therefore, these findings cannot be upset and, that too, in a second appeal which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as framed by learned counsel for the defendant- appellant, arises for determination. Accordingly, there is no merit in the appeal, which is, therefore, dismissed. ( T.P.S. MANN ) Septembr 11, 2009 JUDGE satish