RSA No.2786 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: December 23 , 2009 R.S.A. No. 2786 of 2009 (O&M) Pooja and Others ...........Appellants Versus Charan Singh and Others ..........Respondents R.S.A. No. 3558 of 2009 (O&M) Joginder Pal ...........Appellant Versus Charan Singh and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep Bansal, Advocate for the appellant. ** Sabina, J. This order shall dispose of Regular Second Appeal Nos. 2786 and 3558 of 2009 as they have arisen out of common judgment. Plaintiff-Charan Singh filed a suit for declaration. The suit of the plaintiff was partly decreed by the Additional Civil Judge (Senior Division) Dasuya vide judgment and decree dated 5.5.2000. Aggrieved by the same, defendants nos 8 and 9 (Joginder Pal and Legal representaives of Defendant No. 9-Santokh Kumari) filed separate appeals and the same were RSA No.2786 of 2009 (O&M) 2 dismissed by the learned Additional District Judge, Hoshiarpur vide common judgment and decree dated 24.12.2008. Hence, the present appeals by the assignees of defendants No. 8 and 9. The case of the parties, as noticed by the learned Additional District Judge, in paras 3 to 6 of its judgment reads as under:- “ 3. In brief, the case of the plaintiff is that he purchased land measuring 15 marlas out of khewat No.12, khasra No.2//5, out of total land measuring 4 kanals 1 marlas, as per jamabandi for the year 1963-64. This khasra number was bifurcated into various min numbers due to sanctioning of mutations in favour of the Provinical Government, Lashkar Singh son of Puran Singh and Hari Singh, Naranjan Singh sons of Banta Singh. Plaintiff purchased land from khasra number 2//5/1/2/2 (1-0) but this khasra no. being not mentioned in the jamabandi for the year 1963-64, only khasra no. 2//5 was mentioned in the sale deed dated 22.2.1966 and plaintiff became joint owner in possession to the extent of ¾ share in the suit land. Since then, plaintiff is in actual physical possession of the suit land, where he ran the work of poultry farming from the year 1966 till 1981. In the year 1981, plaintiff stopped his work and removed malba and other material but the construction upto plinth level is still in existence at the spot. Due to the mistake of the revenue official, mutation on the basis of sale deed dated 22.2.1966 could not be got sanctioned in favour of plaintiff and revenue entry remained in the name of Jagat Singh. After his death, Jagat Singh was succeeded by his sons Balwant Singh, Ram Singh, Bhagwant Singh and Piara RSA No.2786 of 2009 (O&M) 3 Singh. Defendants no. 1 and 2 are sons of Balwant Singh. The four sons of deceased Jagat Singh have only ¼ share in the suit land. The defendants have absolutely got no right, title or concern with the suit property to the extent of ¾ share of plaintiff in any manner and alleged sale in favour of defendant no. 8 and 9 by legal heirs of deceased Jagat Singh in excess to their share, is null void, illegal, ineffective and inoperative to the right of plaintiff and liable to be set aside. The entry in the revenue record in the column of ownership in the name of defendants in excess to their share is also liable to be corrected in the name of plaintiff. The defendants by taking the benefit of wrong entries, have started threatening to change the nature of the suit property, illegaly and started denying the claim and title of the plaintiff in the suit land. 4.Upon notice, defendants No. 2, 8 and 9 appeared and the defendants no. 2 and 8 filed joint written statement, taking preliminary objections that suit is not legally maintainable; the suit is not within time; the plaintiff has not cause of action to file the suit. On merits, it is denied that Jagat Singh son of Ganda Singh had sold the land as alleged or any tatim numbes were prepared or that plaintiff is in possession of the suit land for the last 15 years. The fact of running of work of poultry farm or removal of malba or the existence of construction upto plinth level are also denied. It is admitted that Jagant Singh after his death was succeeded by his sons. It is denied that defendants no. 1 and 2 were owners to the extent of 1/4th share as alleged but they were owners of the land in its entirety. It is further stated that RSA No.2786 of 2009 (O&M) 4 answering defendants are bonafide purchasers for valuable consideration without any notice and their rights are protected under the law. The answering defendants are in settled possession of the land purchased vide sale deed dated 23.4.1993 and have raised construction over the land purchased by them, The entries regarding the ownership of the land purchased by the defendants have since been incorporated in the revenue record. The possession of the defendants is lawful and cannot be disturbed. The defendants are within their rights to deal with the property purchased by them. 5.Defendant no.9 in her separate written statement has taken preliminary objections that suit is not maintainable; the suit is time barred and plaintiff is estopped from filing the suit. On merits, it is stated that plaintiff is neither ownber in any way nor any revenue record is in his favour. The defendant has purchased land measuring 1 kanal 1 marla out of khasra no.2/4/2/2, 5/1/2/2/2 in the year 1978 and constructed her house thereon without any objections or obstruction from any body. It is admitted that Jagat Singh was succeeded by his sons. It is further stated that plaintiff has no right what so ever in the property of defendant. The defendant is a bonafide purchaser for value and without notice. There is already a kothi of the defendant since the year 1978. Other averments made in the plaint have been denied. 6.Other defendants had failed to appear despite service and were proceeded against ex-parte. 7. Plaintiff filed separate replications to the written statements of RSA No.2786 of 2009 (O&M) 5 the defendants, reiterating the averments made in the plaint and denying the averments made in the written statements." On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether sale deed dated 22.2.1966 is legal and valid?OPP 2. If issue no.1 is proved, whether the plaintiff is joint owner in possession to the extent of ¾ share in the suit land?OPP 3.Whether the plaintiff is entitled to the permanent injunction as prayed for?OPP 3A.Whether the plaintiff is entitled to joint possession of the suit land in the alternative?OPP 4.Whether suit of the plaintiff is within limitation?OPP 5.Whether the suit of the plaintiff is not maintainable in its present form?OPD 6.Whether the plaintiff is estopped to file this suit by his own act, conduct and acquiesce?OPD 6(a) Whether defendant no. 8 is a bona fide purchaser for consideration without notie?OPD No.8 7. Relief.” The only argument raised by the learned counsel for the appellant is that the suit of the plaintiff was time barred and hence, was liable to be dismissed. However, there is no force in the argument raised by the learned counsel for the appellant. Plaintiff had filed a suit for declaration to the effect that he was joint owner in possession to the extent of 3/4th share i.e. 15 marlas out of total land measuring 1 kanal bearing khasra No. RSA No.2786 of 2009 (O&M) 6 2/5/1/2/2(1-0) on the basis of sale deed dated 22.2.1966 executed by Jagat Singh in his favour. Since the suit was filed by the plaintiff basing his claim on title, the suit of the plaintiff was not governed by Article 58 of the Limitation Act and, hence, was not time barred. Plaintiff had been successful in proving that Jagat Singh, who was admittedly owner of the suit property, had executed a sale deed in his favour on 22.2.1966. The case of the defendants was that Jagat Singh had never sold the suit land to the plaintiff and defendants No. 8 and 9 were bonafide purchasers for valuable consideration. Both the Courts below,after appreciating the evidence led by the parties, on record have given a finding of fact that the defendants No. 8 and 9 were not the bona fide purchasers for consideration. In case, they had made proper inquiry before purchasing the suit land, they would have found out that Jagat Singh had suffered various sale deeds. The said finding of fact cannot be interfered with by this Court in appeal. It has been observed by the learned Additional District Judge in the judgment that Jagat Singh was owner of the suit land measuring 4 kanals 1 marla. Out of the said land, he sold 15 marlas of land, out of khasra no. 2//5 to the plaintiff. Mutation No. 745 was sanctioned in favour of Provincial Government with regard to 1 kanal 5 marlas. Mutation No. 760 qua 16 marlas out of the said total land was sanctioned in favour of Laskhar Singh. Mutation No. 831 qua 16 marlas was sanctioned in favour of Hari Singh and Naranjan Singh. Plaintiff, thus, became owner of the suit land but was not in possession of the suit land. In these circumstances, the Courts below rightly decreed the suit of the plaintiff. No substantial question of law arises in these regular second RSA No.2786 of 2009 (O&M) 7 appeals which would warrant interference by this Court. Accordingly, these appeals are dismissed. ( Sabina ) Judge December 23 , 2009 arya