RSA No.1750 of 2005(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1750 of 2005(O & M) Date of Decision:27.07.2010 Satbir Singh & Ors. ....appellants Versus Satwanti & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Jagat Singh,Advocate for the appellants Mr.Vikram Punia, Advocate for the respondents **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby suit of the plaintiffs- respondents for declaration that they were owners to the extent of 1/9 share each with consequential relief of permanent injunction restraining the respondents from alienating the suit land to the aforesaid extent, was decreed. As per the facts mentioned in the plaint, parties to the litigation are legal heirs of Khema r/o village Jatola. After his death, parties stepped into his shoes and inherited the rights in his estate in equal shares. Appellants allegedly obtained a decree in their favour on 24.07.1999 from the Court of Ms.Poonam Suneja, the then Civil Judge (Jr.Divn.) Sonepat in Civil Suit No.423 of 1998. The plaintiffs-respondents RSA No.1750 of 2005(O & M) 2 averred that the aforesaid judgment and decree dated 24.07.1999 was false,fictitious, obtained by misrepresentation and playing fraud and the same was not having any effect on their rights, the aforesaid decree being a nullity. The plaintiffs-respondents also claimed that they were in joint possession of the suit land. On the basis of the aforesaid averments, the suit for declaration and permanent injunction was filed by the appellants for declaring them as owners in possession of the suit land to the extent of 1/9 share each with further prayer to restrain the appellants from alienating the suit land in any manner, whatsoever, and from disturbing the possession of the plaintiffs-respondents over the suit land. Upon notice, appellants contested the suit by filing written statement. Various legal objections were raised. It was further stated that the decree in question was suffered by the plaintiffs-respondents as well as proforma respondents in favour of appellants, validly. The allegations of impersonation and fraud were denied. It was further claimed that there was no necessity of registering the decree under the provisions of Indian Registration Act. Other averments of the plaint were controverted and dismissal of the suit was prayed. From the pleadings of the parties the trial court framed the following issues: 1. Whether the judgment/decree dated 24.07.1999 is liable to be set aside,as alleged?OPP 2. Whether the plaintiffs are entitled for injunction, as prayed for?OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form? 4. Whether the civil Court has no jurisdiction to try and entertain the present suit?OPD RSA No.1750 of 2005(O & M) 3 5. Relief. After hearing learned counsel for the parties, the trial Court dismissed the suit. Feeling aggrieved from the aforesaid judgment, plaintiffs- respondents filed an appeal before the Lower Appellate Court. During the pendency of the appeal before the Lower Appellate Court, an application for reframing the issues was moved on behalf of the plaintiffs-respondents which was allowed in view of the statement of the counsel for the appellants and following issues were reframed in substitution of issue No.1, framed earlier: 1. Whether the plaintiffs are co-owners in possession of 1/9 share each in the suit land as alleged?OPP 2. Whether the impugned judgment and decree dated 24.07.1999 is effectual on the rights of the plaintiffs on the grounds mentioned in the plaint? The remaining issues remained intact. No fresh evidence was led on the aforesaid issues. The plea of fraud etc.was not pressed by the plaintiffs-respondents before the Lower Appellate Court and the impugned decree dated 24.07.1999 was assailed only on the ground that the aforesaid decree was conditional to the effect that the aforesaid decree dated 24.07.1999 will not be effective unless and until it was registered. Admittedly, the aforesaid decree dated 24.07.1999 was never got registered by the appellants nor any payment for registration was ever made. The Lower Appellate Court accepted the aforesaid contention raised by the plaintiffs-respondents and decreed the suit. Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendants No.1 to 4 are in appeal before this Court. Learned counsel for the appellants has vehemently argued RSA No.1750 of 2005(O & M) 4 that the decree dated 24.07.1999 was based upon a family settlement and therefore the same do not require registration and thus Appellate Court committed an error of law by giving adverse finding against the appellants. Learned counsel for the appellants submitted that the following substantial questions of law arise in this appeal: 1. Whether the decree dated 24.07.1999 created no rights or extinguish no right of any of the party to that suit and it merely acknowledged the rights already settled between the parties in the family settlement and as such the decree dated 24.07.1999 is not compulsory registrable under Section 17(2) of Indian Registration Act and the findings of the learned First Appellate Court contrary to it, is liable to be set aside? 2. Whether the judgment and decree dated 01.12.2004 passed by learned trial Court is perfectly valid and lawful and the learned First Appellate Court committed error of law by reversing the same? 3. Whether the judgment and decree passed by learned First Appellate Court is perverse and is not sustainable in the eyes of law? On the other hand, learned counsel for the respondents supported the impugned judgment and decree and submitted that the argument raised by learned counsel for the appellants does not arise in the facts and circumstances of the case and the appeal, which has no merit, is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decree. Admittedly, the claim of the appellants over the suit property is based on the decree dated 24.07.1999 wherein a condition was imposed RSA No.1750 of 2005(O & M) 5 that the same will not be effective unless and until it was registered. Admittedly, the aforesaid decree has not been registered. Therefore, the decree in question shall not affect the rights of plaintiffs-respondents and cannot be enforced against their rights. Thus, the suit property to the extent of share of respondents could not be transferred in favour of the appellants. Thus, no fault can be found with the findings of the Lower Appellate Court. No substantial question of law, as argued, arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 27.07.2010 neenu