RSA No. 2039 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2039 of 1984 Date of decision 13.5.2011 Roshan Lal Appellants v. Smt.Sant Kaur & Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. J.R.Mittal,Sr.Advocate with Mr.Kashmir Singh,Advocate for the appellant Mr.Ram Lal Gupta,Advocate for the respondents .... JITENDRA CHAUHAN.J This regular second appeal has been filed against the judgment and decree dated 28.1.1984 passed by the ld.Ist Appellate Court, whereby the appeal filed by the appellant-Roshan Lal was allowed to the extent that a decree for permanent injunction was granted. The defendant No.2 was restrained from dispossessing the plaintiff from the house in question except by due course of law. The appeal qua other reliefs was dismissed. The dispute in the instant case is to the property of Balwant Singh @ Bawaria, father of plaintiff-appellant, defendant Nos. 2 to 5 and husband of Smt.Sant Kaur. Balwant Singh owned 98 kanals of ancestral land. He also purchased a plot from the income of coparcenary property in the name of his wife Sant Kaur,defendant No.1 vide sale deed dated 28.2.1963. From the income of the joint hindu family property,the house was constructed upon the plot and as such, the house was also a part of RSA No. 2039 of 1984 2 joint hindu property of Balwant Singh, though it was in the name of Sant Kaur,defendant No.1. On the death of Balwant Singh, the plaintiff became owner of 7/18th share in 98 kanals of land and in the house that stood in the name of Sant Kaur, his mother. As per the plaintiff, in order to cause loss to the plaintiff, Sant Kaur executed a fictitious sale deed in favour of her daughter Dwarki Devi,defendant No.2 on 2.6.1976. It was alleged that it was a paper transaction and the plaintiff remained in possession of the house as a co- sharer. It was further case of the plaintiff before the trial court that defendant Nos. 1 to 4 conspired with each other and sold 2/3rd share of the agricultural land in favour of defendant Nos. 6 to 10 vide sale deeds dated 4.4.1979 and 30.5.1979. It was averred that the same were not binding upon the plaintiff as he was entitled to 7/18th share in the estate left by his father Balwant Singh. It was also pleaded in the plaint that Dwarki Devi wanted to dispossess the plaintiff in view of sale deed dated 2.6.1979. Thus plaintiff filed a suit for declaration restraining Dwarki Devi from interfering with the plaintiff's possession. Kaushalaya Devi and Parkash Devi, the defendants filed written statement. Relations with Balwant Singh was admitted, but, it was asserted that the house in dispute was purchased by Sant Kaur with her personal funds and neither Balwant Singh nor the plaintiff incurred any expenditure on the construction of the house. It was further averred that the plaintiff was estopped from raising this issue, as this issue stands already decided in the Rent Application titled “ Dwarki Devi v. Manmohan Singh”. The sale deed in favour of Dwarki Devi was a genuine document. Though possession of the plaintiff was admitted, but that was of a tress- RSA No. 2039 of 1984 3 passer. Separate written statement was filed by defendant Nos. 6 to10, wherein a stand was taken that the land was not ancestral and the plaintiff was not entitled to the extent of 7/18th share. It was further asserted that the vendees purchased the land for consideration and Gurcharan Singh, Jaskaran Singh and Balkaran Singh sons of Kaur Singh were the necessary parties and the suit was not properly valued for the purpose of court fee and jurisdiction. The plaintiff has separated from his father Balwant Singh durig his life time. Therefore, the plaintiff has no cause of action. However, defendant No.5 filed a separate written statement and admitted the claim of the plaintiff to be true. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is the owner to the extent of 7/18 share in the suit property?OPP 2. Whether the sale deed dated 4.4.79 and 10.5.79 are not binding on the plaintiff?OPP 3. Whether sale deed executed by Sant Kaur in favour of Dwarki Devi is also not binding on the plaintiff?OPP 4. Whether the suit is barred by the principle of resjudicate?OPP 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 6. Whether the suit is not filed in the proper form?OPD 7. Whether the plaintiff was separate in residence, business and property for the last more than 15 years? If so, its effect?OPD 8. Whether the defendants No. 6 to 10 are bonafide purchaser with consideration?OPD 9. Whether the plaintiff is estopped to file the present suit by his acts and conduct?OPD 10. Whether Gurcharan Singh, Jaskaran Singh and Balkaran Singh are the necessary parties,if so, the effect of not impleading them?OPD 11. Relief.” While dealing with issue No.1, the ld. trial court observed that plaintiff was the owner to the extent of 7/18th share in the agricultural land RSA No. 2039 of 1984 4 measuring 98 Kanals held by his father Balwant Singh @ Bawaria. While dealing with issue No.2, the Ld.trial court held that defendant Nos. 1 to 4 have sold some portion of the land owned by the plaintiff. Thus the sale deeds were not binding on the plaintiff to the extent that these sale deed relate to the land owned by the plaintiff. While dealing with issue No.3, the ld.trial court held that the plot in question was not benami and the same was purchased by Sant Kaur, defendant No.1 on which the house was constructed, which was sold to Dwarki Devi. Therefore, the plaintiff is bound by the sale deed. Accordingly, this issue was decided against the plaintiff. While deciding issue No.8, the ld.trial court held defendant Nos. 6 to 10 to be bonafide purchasers for consideration without notice. Therefore, the sales in their favour are valid and they are protected by law. On appeal preferred by the appellant, the Ld.Ist Appellate Court allowed the appeal to the extent that permanent injunction was granted restraining defendant Nos. 2 to 5 from dispossessing the plaintiff from the house except in due course of law. The appeal of the plaintiff with regard to other relief was dismissed by the Ist Appellate Court. It was in this back-drop of the matter that the present appeal has been preferred by Roshan Lal, the appellant in this court, which was admitted on 19.2.1985. The learned counsel for the appellant has submitted that it is not positively established that the vendees made bonafide inquiries regarding the title of the vendor before the land in question was purchased. He has further argued that mutation was sanctioned in February/March,1979 whereas the impugned sale took place in the month RSA No. 2039 of 1984 5 of April/May,1979 therefore, there was no proximity with the plaintiff to agitate the matter before the competent authority against the sanction of the mutation by way of appeal. He submitted that mere entry in the revenue record does not constitute any valid basis to hold that the vendees made bonafide inquiries and believed the title of the vendor. He has argued that there is nothing on record to show that it was the sale without consideration. Learned counsel further argued that it is proved on record that the sale in the name of Sant Kaur was fictitious and a sham transaction, which is apparent from the fact that Sant Kaur has not come forward to file any reply to the suit filed by the plaintiff, so much so, the sale in favour of Sant Kaur is not proved on record. Learned counsel has stated that it is on record that Balwant Singh was the husband of Sant Kaur and the plaintiff being their son, is in possession of the house; the house was constructed by Balwant Singh with Joint Hindu family funds. The original sale deed is not proved on the file and Balwant Singh was present on behalf of Sant Kaur at the time of execution/registration of the sale deed; nothing has come on record that Sant Kaur contributed towards the construction of the house. Therefore, learned counsel has argued that the ld.trial court ought to have drawn an adverse inference against Sant Kaur for her non-appearance and benami transaction. Even she was not in possession of the sale deed. Learned counsel has further submitted that the respondent Nos. 1 to 4 have sold 2/3rd share to the vendees (defendant Nos. 6 to 10) the area excess to their share, therefore, the sale is void to the extent of excess area. Learned counsel has submitted that the question that it was joint Hindu family coparcenary property is not proved as from whom the property came to the father of the plaintiff is proved on record and thus the RSA No. 2039 of 1984 6 findings recorded under issue nos. 1 & 2 and the relief provided is contrary to law. It is further argued that the mutation did not confer any title. On the other hand, learned counsel for the respondents submitted that the respondents are bonafide purchasers. The land stood mutated in favour of defendant/respondent Nos. 1 to 4 by the plaintiff,therefore, they were considered as vendees for consideration without notice and bonafide purchasers and are protected by Section 41 of the Transfer of Property Act. Learned counsel has further submitted that if the plaintiff at all has any grouse, he can claim the same against the vendors and not the vendees. He has also assailed the findings of both the courts below whereby the plaintiff was held to be entitled to 7/18th share in the property in dispute. Lastly, he has argued that it has not come in evidence that the property was coparcenary,therefore, the schedule attached to the Transfer of Property Act comes into play. It has been pointed out that the mother has sold the house to the daughter and it is in the ownership of the sister of the plaintiff-appellant. I have heard the learned counsel for the parties and perused the record with their able assistance. The only point for determination in this case is as to “whether the judgments and decrees of both the courts below are perverse?” It is proved on the record that defendant Nos. 1 to 4, sold 2/3rd share of the agricultural land to defendant Nos. 6 to 10. The sale took place in the months of April/May 1979. The suit was filed in the month of June,1979. Thus it is proved on record that on the date of sale, there was no dispute with regard to the title of the land in question. Both the courts below after having examined the entire record and taking into consideration RSA No. 2039 of 1984 7 the facts and circumstances of the case have held that defendant Nos. 6 to 10 made inquiries regarding the title of the vendors. They have been held to be bonafide purchaers. I do not find any force in the argument raised by learned counsel for the appellant that the respondents did not make bona fide inquiries and thus they are not the bonafide purchasers. I also do not agree with the argument of learned counsel that defendant No. 1 to 4 sold excess area of their share and thus sale was void to the extent of excess area. Both the courts below have returned positive findings in favour of defendant Nos. 6 to 10 that they are the bonafide purchasers, this court has no jurisdiction to interfere in the same, being pure question of fact. No other point has been raised in this context. As regards the issue of ownership of house is concerned, from the overwhelming evidence on record, it is fully proved that the house was purchased by Sant Kaur, defendant No.1 with her personal funds and she sold it to her daughter Dwarki Devi. There is nothing on the record that it was a fictitious sale. There is no perversity in the judgments and decrees of both the courts below. In the light of above discussion, the present appeal fails and is accordingly dismissed. The judgments and decrees passed by the courts below are affirmed. (JITENDRA CHAUHAN) 13.5.2011 JUDGE MS Note: Whether to be referred to Reporter? Yes/No.