RSA No.2486 of 1988 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 2486 of 1988 Date of decision: 07.01.2011 Asar Khan and another ......Appellants Versus Sheedon and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel, Advocate with Mr.Sanjiv Gupta, Advocate, for the appellants Mr.Amit Jain,Advocate for the respondents **** SABINA, J. Plaintiff had filed a suit for declaration that he be declared owner in possession of land in dispute basing reliance on sale deed dated 3.9.1979 and for permanent injunction that the defendants be restrained from interfering in his possession. The suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 29.1.1987. Aggrieved by the same, defendants No. 4 and 5 RSA No.2486 of 1988 2 preferred an appeal. The said appeal was dismissed by the Additional District Judge Gurgaon vide judgment and decree dated 19.5.1988. Hence, the present appeal by defendants No. 4 and 5. The case of the plaintiff in brief is that defendant Nos 1 to 3 being owners of the suit land measuring 16 kanals sold the same in favour of the plaintiff vide registered sale deed 3.9.1979 for a sum of Rs.10,500/- and handed over the possession to him. After the above date, the defendants No. 4 and 5 got executed registered sale deed dated 22.4.80 of some land out of the suit land i.e. 1/3rd share of killa No.159/9/2, 9/1 from defendant No.2 without any notice of the plaintiff. The defendant No.2 had no right, or title to execute the sale deed in favour of defendant Nos. 4 and 5 as the defendants Nos. 1 to 3 were not owners in possession of the suit land at the time of imugned sale deed, dated 22.4.80 because they had already sold the suit land in favour of the plaintiff. The plaintiff has challenged the impugned sale deed, dated 22.4.1980 being a fictitious document. Mutation No. 10600 was entered on 20.8.1980 and was sanctioned by the Assistant Collector Ist Grade Ferozepur Jhirka on 19.2.1980. The mutation was illegal void and against the law. The defendant No. 1 to 3 did not appear despite service and were proceeded exparte. In their written statement, defendant Nos. 4 and 5 controverted the various pleas taken by the plaintiff. It was averred that defendant Nos. 1 to 3 were owners of about 117 kanals 14 marlas of land out of which they sold different parcels of land. In view of two agreements dated 4.8.1978 and 13.2.1979 land was sold in favour of defendants No. 4 and 5. Defendants Nos. 1 to 3 were not competent to execute any sale deed in favour of the RSA No.2486 of 1988 3 plaintiff” On the pleadings of the parties, the following issues were framed by the trial Court :- “1.Whether the sale in favour of defendants Nos. 4 and 5 does not create any title in their favour in respect of the land in question as alleged in para No. 3 to 5 of the plaint?OPP 2. Whether the sale in favour of the plaintiff is fraudulent bogus and a sham transaction. If so to what effect?OPD (4&5) 3. Whether the plaintiff is estopped by his act conduct and acquisence from filing the suit ? OPD 4 & 5 5.Whether the suit is bad for non joinder and mis-joinder of parties and cause of action?OPD 6.Whether the plaintiff is in possession of land in question?OPD 7. Relief.” Learned counsel for the appellants has submitted that the appellants had purchased the suit property from defendant No.2 vide sale deed dated 22.4.1980. Defendant No.2 had filed a suit to pre- empt the sale deed executed by defendant No.1. The said suit filed by defendant No.2 was decreed vide judgment and decree dated 6.1.1979. Hence, defendant No.2 could validly execute the sale deed in favour of the appellants. Two agreements to sell dated 4.8.1978 and 13.2.1979 had been executed in favour of the appellants by defendants No. 1 to 3. Learned counsel for respondent No.1, on the other hand, has submitted that the plaintiff had purchased 16 kanals of land from RSA No.2486 of 1988 4 defendants No. 1 to 3 vide sale deed dated 3.9.1979. Hence, the sale deed executed by defendant No.2 in favour of the appellants on 22.4.1980 was not binding on the rights of the plaintiff. After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves dismissal. In the present case, admittedly, defendants No. 1 to 3 were owners of a big chunk of land. As per jamabandi for the year 1975- 76 (Exhibit P2), defendants 1 to 3 are described to be owners in possession of 117 kanals 14 marlas. Defendants no. 1 to 3 sold khasra No. 159//9/2(0-11),12(8-0),9/1(7-9) measuring 16 kanals to the plaintiff vide sale deed (Exhibit P1) dated 3.9.1979. Defendants No. 1 to 3 were owners in possession of the suit land sold by them to the plaintiff. Defendant No.2 had filed a suit for possession by pre- empting the sale deed executed by defendant No.1 in favour of Aasar Khan. Defendant No.2 had claimed 1/3rd share of defendant No.1 measuring 8 kanals of land. The said suit filed by defendant No.2 was decreed vide judgment and decree dated 6.1.1979 (Exhibit P4). Thus, as per the said decree defendant No.2 did not get any specific khasra number to his share but rather he got the share of defendant No.1 to the extent of 1/3rd share out of 24 kanals of land. Defendant No.2 ,thereafter, executed the sale deed in favour of the appellants on 22.4.1980( Exhibit D1) qua khasra No. 159//3/1(4-2), 2 (8-0),3/2(2-15), 3/3(1-3). 9/2,9/1 measuring 8 kanals. Since the said khasra number had already been sold to the plaintiff by defendant No.2 along with other co-sharers, defendant No. 2 could not execute the sale deed qua the said khasra number in favour of the appellants. RSA No.2486 of 1988 5 In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Dismissed. ( Sabina ) Judge January 07, 2011 arya