IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4087 of 2007 Date of Decision: 26.3.2009 Suresh Kumar and another. ....... Appellanta through Shri Pritam Saini,Advocate. Versus Phool Kumar and another. ....... Respondents through Nemo CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 29.9.2001 and 11.9.2007 passed respectively by the Additional Civil Judge (Senior Division), Kurukshetra (hereinafter referred to as `the trial Court') and the Additional District Judge (Ad hoc), Fast Track Court, Kurukshetra (described hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiffs-appellants have been dismissed. The appellants had filed a suit for declaration to the effect that sale deed no.1260 dated 21.6.1994 executed by their father – Bihari Lal, defendant- respondent no.2 in favour of defendant-respondent no.1 and the other revenue record based thereon, were illegal, null & void, inoperative, R.S.A.No.4087 of 2007 -2- .... ineffective, fake & forged and were liable to be set aside. It was further prayed that they be also declared owners of the suit land and respondent no.1 be directed to put them in possession thereof. As a consequential relief, a decree for permanent injunction was also sought restraining the respondents from alienating, selling, transferring, leasing, mortgaging the suit land to any stranger forcibly or illegally. It was pleaded by the appellants that they were minor at the time of execution of the impugned sale deed and now they have attained majority. It was further pleaded that the suit land was ancestral and respondent no.2 was karta of the Joint Hindu Family and that the sale was not for legal necessity and deserved to be set aside. It was alleged that respondent no.1 had forcibly taken possession of the suit land at the time of kharif1996. Upon notice, the respondents appeared and filed their separate written statements. In his written statement, respondent no.1 contested the suit and pleaded that the suit land was neither ancestral nor coparcenary nor the property of Joint Hindu Family, qua the appellants and that respondent no.2 was exclusive owner in possession thereof and he had executed the impugned sale deed out of his own free volition. It was further pleaded that the suit land was under mortgage for a sum of Rs.23000/- with him previous to the sale vide deed dated 2.3.1989 and since respondent no.2 was in need of money for repayment of the loan which he had taken for the marriage of his children, he had executed agreement to sell the suit land measuring 14 R.S.A.No.4087 of 2007 -3- .... kanals 15 marlas on 14.6.1994 for a total consideration of Rs.2,95,000/-. An amount of Rs.2,15,000/- was paid in cash at the time of execution of the agreement to sell. However, the sale deed was executed on 21.6.1994 only qua 10 kanals of land for an amount of Rs.1,99,000/- which included Rs.23000/-,i.e., the mortgage money and the remaining amount of Rs.39,000/- was assured to be returned by respondent no.2 to respondent no.1. It was also alleged that when respondent no.2 was contacted to execute the sale deed as per agreement dated 14.6.1994, the instant suit was got filed by him through his sons. The impugned sale deed was stated to be legal and binding on the parties. Respondent no.2, in his written statement, admitted that the suit land was ancestral and that the impugned sale was without consideration and without legal necessity and that it was procured by respondent no.1 by playing fraud. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the impugned sale deed dated 21.6.1994 is illegal, null and void, inoperative, based on fraud and misrepresentation of facts and not binding on the rights of the plaintiffs?OPP 2. If so, whether the defendants are not entitled to alienate, transfer or lease the same and the plaintiffs are entitled to the discretionary relief of injunction?OPP 3. Whether the plaintiffs have got no locus standi to file and R.S.A.No.4087 of 2007 -4- .... maintain the present suit?OPD 4. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 5. Whether the plaintiffs have got no cause of action?OPD 6. Whether the defendant no.1 is a bona fide purchaser?OPD 7. Relief. Upon appraisal of the entire evidence on record, the trial Court concluded that the appellants had failed to prove their case and dismissed the suit. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellants contended that the findings recorded by the Courts below are perverse. He submitted that once a finding regarding ancestral nature of the suit land was arrived at, then it was incumbent upon the Courts below to have minutely examined the fact that as to whether the sale was for legal necessity or not as it had seriously jeopardized the interest of the appellants, who were minor at the relevant time. I have thoughtfully considered the contention/ submission of the learned counsel for the appellants and have carefully perused the impugned judgments. Respondent no.1 had very categorically pleaded that the suit land was earlier under mortgage with him for a sum of Rs.23000/-. R.S.A.No.4087 of 2007 -5- .... Respondent no.2 was stated to have taken loan for meeting the expenses of the marriage of his children. It was to redeem this mortgage and to repay the loan that respondent no.2 agreed to sell the suit land to respondent no.1. Respondent no.2, at no point of time, entered the witness box to challenge the agreement to sell or the sale deed or the deed of mortgage. There was a citation in the sale deed to the effect that the money was required for repayment of the loan secured by respondent no.2 for solemnization of the marriage of his children. This was sufficient to meet the anxiety of a prospective vendor. Apparently, in the suit filed by the appellants, respondent no.2 appeared and admitted their claim and tried to side-step the sale deed, which, in my view, is a dishonest litigation propelled by greed. Both the Courts below have concurrently recorded a finding of fact that the sale was for legal necessity which was also mentioned in the sale deed itself. Consequently, the present appeal, which is against only the concurrent finding of fact and does not thrown up any substantial question of law, is devoid of any merit and is dismissed. March 26,2009 ( Mahesh Grover ) “SCM” Judge