RSA No. 2716 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2716 of 2007 Date of Decision: 21.08.2009 1. Ramanand; 2. Bhim Singh; 3. Mahender Singh; 4. Rajbir; 5. Raj Kanwar; 6. Smt. Rambai; 7. Smt. Prem; 8. Smt. Raj Kala; 9. Smt. Chand; daughters of Mawasi son of Sikshan son of Sunda, residents of village Sultanpur, Tehsil and District Gurgaon. ... Appellants Versus 1. Asharfi d/o Kalia son of Shadi, r/o Sultanpur, presently w/o Sh. Mohan, r/o H. No. 786, Bahar Wali Gali, Chhatta Lal Mian, Daryaganj, Delhi-110006. Presently residing at Shiv Mandir Gali, Bharpur Mohalla, Shahdra, Delhi. 2. Smt. Rambati widow of Sh. Om Parkash son of Smt. Nankaur daughter of Kalia r/o H. No. 667, Jheel Kuranja, Pashu Hospital Wali Gali, Paharganj Road, Delhi, presently residing at H. No. 518, near DDA Flats, Shahdra, New Delhi. 3. Ajit son of Chandu Lal r/o RZ-104B, East Sagarpur, Delhi. 4. Kundan Singh son of Bhai Ram, r/o H. No. A-40, Rajindera Park, Gurgaon, Tehsil and District Gurgaon. ...Respondents RSA No. 2716 of 2007 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sunil Rana, Advocate, for Mr. Amit Jain, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 12.04.06, rendered by the Court of Civil Judge (Junior Division), Gurgaon, vide which, it dismissed the suit of the plaintiffs (now appellants), and the judgement and decree dated 26.02.07, rendered by the Court of Additional District Judge, Gurgaon, vide which, it dismissed the appeal. 2. Smt. Punia widow of Gurdial was the owner in possession of agricultural land measuring 15 kanals 7 marlas situated within the revenue estate of village Sultanpur, comprising khewat No. 572, khata No. 616, Rect. No. 144, Killa No. 21, Rect. No. 162, Killa No. 1 fully detailed in para No.1 of the plaint. Smt. Punia was looked after and served by the plaintiff and out of love and affection she executed a gift deed on 03.11.2005 regarding her property in favour of Mawasi, predecessor-in-interest of the plaintiffs. The mutation of the total land owned by Smt. Punia was sanctioned in favour of the plaintiff (Mawaasi), in the revenue record, except the land detailed in para No.1 of the plaint. The mutation could not be sanctioned, regarding the land, in dispute, due to over sight and mistake. However, the plaintiff had RSA No. 2716 of 2007 3 been in cultivating possession of the land, in dispute. Smt. Punia died in the year 1967 and after her death the plaintiff became the owner in possession of the land in dispute. The entries in the revenue record could not be changed in favour of the plaintiff, as a result whereof, a civil suit on 04.10.1986 titled as 'Mawasi Vs. General Public', was filed by the plaintiff (Mawasi), seeking a decree of declaration to the effect that they had become the owners in possession of the land in dispute. That civil suit was decreed exparte, vide judgment and decree dated 18.10.1991 passed by the Additional Senior Sub-Judge, Gurgaon. The plaintiffs came to know that Smt. Ashrafi and Nankaur daughters of Kalia got mutation No. 2842 sanctioned, in their favour on 12.09.1989, secretly, of the land, in dispute, showing themselves as the daughters of Smt. Punia deceased. Mutation No.2842 dated 12.09.1989, was stated to be illegal, null and void, creating no right or interest in favour of Ashrafi etc. It was denied that Ashrafi and Nankaur were the daughters of Smt. Punia. Nankaur has also died and defendants No. 2 to 6 are her legal representatives. The plaintiffs also filed an application before the Assistant Collector Ist Grade, Gurgaon, for rejection of the mutation, but nothing was done by the Revenue Officers. It was further stated that defendant No.1 illegally sold 7 kanals 13 marlas of land, out of the total suit land to defendant No.7 vide sale deed dated 05.04.1996. The sale deed in favour of defendant No. 7 was also stated be illegal, null, void and not binding on the rights of the plaintiffs. It was further stated that defendant No.2 executed a sale deed in favour of defendant No.8 on 20.08.2001 regarding 7 kanal RSA No. 2716 of 2007 4 13 marlas land, out of the total land, in dispute. The defendants were many a time, asked to admit the claim of the plaintiffs, but to no avail. On their final refusal, to do so, left with no other alternative, a suit for declaration and consequential relief, was filed. 3. Defendant No.1, put in appearance, and filed written statement, wherein she took up various objections, and contested the suit. It was pleaded that the suit was barred by time. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the suit was not maintainable. It was stated that Smt. Punia mother of the answering defendant, was owner in possession of the land in dispute. It was denied that Mawasi was the nephew of Smt. Punia or he rendered service to her during her lifetime. It was further denied that Smt. Punia executed a gift deed on 13.11.1965, in favour of Mawasi, and that he became the owner in possession of the land in dispute. It was stated that mutation No.2842 was sanctioned on 12.09.1989, after the death of Smt. Punia in favour of her legal heirs, in accordance with law. It was admitted that Smt. Nankaur had died and defendants No.2 to 6 are her legal heirs. It was further stated that defendant No.1 sold 7 kanals 13 marlas land to defendant No.7 before filing the present suit. It was further stated that mutation No.2442 was rightly sanctioned in favour of defendant No.1 and Nankaur. It was further stated that the sale deed dated 05.04.1996 was validly executed and mutation No.3662 was also validly sanctioned. 4. Defendant No. 2 Rambati, filed a separate written RSA No. 2716 of 2007 5 statement, pleading therein, that the suit was not maintainable. It was further pleaded that the plaintiffs had no locus standi to file the suit. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the plaintiffs were estopped from filing the suit by their own act and conduct. It was further pleaded that the plaintiffs had no cause of action. It was admitted by the answering defendant, that Smt. Punia was the owner of the land in dispute. It was denied that Smt. Punia died issueless and she was looked after and served by Mawasi during her life time. It was further denied that Smt. Punia executed a gift deed, in favour of Mawasi on 03.11.65. It was stated that the gift deed dated 03.11.65, was illegal, void and based on fraud. It was further stated that after the death of Smt. Punia, Asharfi and Nankur, her daughters became the owners in possession of the suit property being her successors in interest. It was further stated that Smt. Nankaur has also died and after her death Om Parkash, her son, became the owner of the land, in dispute, qua her share and after the death of Om Parkash, defendants No. 2 to 6, became the owners, in possession thereof. It was further stated that the judgement and decree passed on 04.10.89 in civil suit titled as 'Mawasi Vs. General Public', was wrong, illegal, based on fraud and not binding upon the rights of the defendants. It was further stated that the answering defendant was not a party to the proceedings of that case. It was further stated that mutation No. 2842 was validly sanctioned on 12.09.91, in favour of Asharfi and Nankaur, daughters of Smt. Punia. It was further stated that the answering defendant and defendant No. 1, had already sold the land RSA No. 2716 of 2007 6 in dispute vide registered sale deed dated 05.04.96 in favour of Ajit Kaushik r/o Sagarpur Cantt for a consideration of Rs. 1,40,000/- before filing the present suit. It was further stated that the answering defendant ceased to be the owner of the land, in dispute, after the execution of the sale deed. 5. Defendant No. 8 Kundan Singh, filed a separate written, statement pleading therein, that the suit was not properly valued for the purpose of court fees and jurisdiction. It was further pleaded that the suit was time barred. It was further pleaded that the suit was not maintainable. It was stated that the judgement and decree dated 18.10.91, passed by the Court of the then Additional Senior Sub Judge, Gurgaon, was not binding upon the answering defendant and his vendors,as they were not a party to the litigation. It was further stated that the defendants had mortgaged the land in dispute with a bank to develop the same. It was further stated that the answering defendant was the bonafide purchaser of the land, in dispute, on payment of sale price vide registered sale deed dated 20.08.01. It was further stated that the answering defendant made the bonafide inquiries from the revenue record, and from Smt. Rambai and others, before the execution of the sale deed. It was further stated that the defendants had also received a notice in civil suit titled as 'Siri Krishan Vs. Ajit Kaushik', wherein, it was mentioned that Siri Krishan purchased the land in dispute from Smt. Rambati vide registered sale deed dated 17.03.98. It was further stated that the sale deed dated 17.03.98, was a false and fabricated document and without consideration. It was further stated that no such RSA No. 2716 of 2007 7 sale deed was executed by Smt. Rambati or her alleged general power of attorney. It was further stated that one answering defendant was the owner in possession of the land in dispute qua 1/ 2 share vide registered sale deed dated 20.08.01. It was further denied that Smt. Punia died issueless. It was further stated that she was having two daughters namely Asharfi and Nankaur. It was further stated that after the death of Nankaur her legal heirs became the owners of the property in dispute, qua her share. It was further denied that Smt. Punia gifted her entire property in favour of the plaintiff. It was further stated that the plaintiff was not having any relationship with Smt. Punia. It was further stated that the alleged gift deed was a false and fictitious document and was never executed by Smt. Punia. It was further stated that the Civil Court decree obtained by Mawasi was null and void, as the same was based on fraud and misrepresentation. It was further stated that Mawasi had no right to challenge the inheritance of Smt. Punia. It was further denied that Mawasi ever became the owner in possession of any part of the suit land. The remaining averments, were denied, being wrong. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 7. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed by the Court of Additional District Judge, Gurgaon, vide judgement and decree dated 26.02.07. RSA No. 2716 of 2007 8 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 9. The following substantial questions of law arise in this appeal for the consideration of this Court:- (i) Whether the Courts below recorded a perverse finding that Mawasi, predecessor-in-interest of the plaintiffs did not become the owner of the suit land, on the basis of gift deed, in his favour by Punia? (ii) Whether the Courts below recorded perverse findings on account of misreading and misappreciation of evidence that defendant No. 8, was the bonafide purchaser of the suit land? (iii) Whether the Courts below recorded perverse findings that Asharfi and Nankaur, were not the daughters of Kalia, but on the other hand, the daughters of Gurdial and Punia? (iv) Whether the Courts below recorded perverse findings that the decree passed in civil suit titled as Mawasi v. General Public, in favour of Mawasi, declaring him the owner of the land in dispute, was not binding upon the defendants? 10. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 11. The Counsel for the appellants, submitted that Punia executed gift deed in favour of Mawasi predecessor-in-interest of the plaintiffs. He further submitted that Punia intended to gift her entire property, but on account of inadvertence, the property, in dispute, could not be included therein. He further submitted that the Courts below were also wrong in holding that Asharfi and Nankaur, were the RSA No. 2716 of 2007 9 daughters of Gurdial and Punia, and not of Kalia. He further submitted that even a suit was filed by the plaintiff/appellant, against the general public, claiming the ownership of the land, in dispute, in which, he was declared to be the owner. He further submitted that on the basis of that judgement and decree, the plaintiff, was the owner of the land in dispute. It was further submitted by him that the mutation sanctioned in favour of Asharfi and Nankaur, in respect of the land, in dispute, which was not mentioned in the gift deed, was wrong. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 12. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the RSA No. 2716 of 2007 10 Courts below, is confined only to the hearing of substantial questions of law. The first question, that falls for consideration, is, as to whether Asharfi and Nankaur are the daughters of Kalia son of Sunda or the daughters of Gurdial and Punia. Mawasi, predecessor-in-interest of the plaintiffs claimed himself to be real uncle of Asharfi and Nankaur. Admittedly, Omparkash was the son of Nankaur and defendants No. 2 to 6 are the widow and daughters of Omparkash. Undisputedly, Punia was the exclusive owner in possession of the land in dispute. P14 and P16 the pedigree tables were produced on record. Asharfi and Nankaur were not established to be the daughters of Kalia son of Sunda, as per these pedigree tables. From the evidence, produced by the parties, it was established that both Asharfi and Nankaur were the daughters of Gurdial, who was the husband of Punia. Asharfi and Nankaur being the ladies were not able to get sanctioned the mutation of inheritance, immediately after the death of Punia. The Courts below, thus, were right in holding on the basis of the evidence on record that Asharfi and Nankaur were the daughters of Gurdial and Punia, and not of Kalia. The submission of the Counsel for the appellants, to the effect, that Asharfi and Nankaur, were the daughters of Kalia, therefore, was rightly held to be without substance. 13. The submission of the Counsel for the appellants, that the land, in dispute, could not be included in the gift deed, on account of inadvertence, does not carry any substance. No suit was filed by him for the rectification of gift deed at any point of time. Under these circumstances, on the basis of the gift deed, Mawasi could not be said RSA No. 2716 of 2007 11 to be the owner of the land, in dispute. The Courts below were, thus, right in holding that the gift deed was only with regard to the land, mentioned therein, and not with regard to the suit land, and, as such, the plaintiff did not become the owner thereof, on the basis of such document. 14. A decree was also set up by Mawasi, predecessor-in- interest of the plaintiffs, which was passed in civil suit, which he filed against the general public on 04.10.89. This suit was decreed on 18.10.91 vide judgement P8 and decree P9. On 12.09.89, exhibit P20 mutation was got sanctioned by Smt. Asharfi defendant No. 1 and Nankaur, in their favour, stating themselves to be the daughters of Smt. Punia. In the suit, in which, the exparte decree was passed, both Asharfi and Nankaur, were not impleaded as a party. Under these circumstances, they were not bound by the decree. It appears that the plaintiff intentionally did not implead them as a party, as he very well knew that it would be established that they were the daughters of Gurdial and Punia, and he will lose his case. Since the judgement and decree, referred to above, passed in the earlier suit was not binding upon the daughters namely Asharfi and Nankaur of Gurdial and Punia, no help could be drawn by the Counsel for the appellants, therefrom. 15. Since Asharfi and Nankaur, were the daughters of Punia, who was the owner of the property in dispute and after her death they became the owners of the suit land, they could certainly execute the sale deed(s) in respect thereof, and the subsequent vendee(s) was/were the bonafide purchasers. The Courts below, were right, in holding so. RSA No. 2716 of 2007 12 16. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The submission of the Counsel for the appellants, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. The substantial questions of law depicted above, are decided against the appellants. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 21.08.2009 (SHAM SUNDER) Amodh JUDGE