RSA No.2937 of 2009 (O & M) - 1 – IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2937 of 2009 (O & M) Date of Decision: 07.02.2011 Ajit Singh ……Appellant Versus Tejinder Kaur and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Gulzar Mohd., Advocate for the appellant. Mr. Puneet Jindal, Advocate for respondent No.1. None for respondent No.2. L.N. MITTAL, J (ORAL) Ajit Singh-defendant No.2, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Tejinder Kaur-respondent No.1-plaintiff filed suit against Amar Dass-defendant No.1/respondent No.2 and Ajit Singh- defendant No.2/appellant. The plaintiff’s case is that suit land measuring 23 kanals 6 marlas situated in village Kotli Rayyan and suit land measuring 28 kanals 11 marlas situated in village Khojkipur Salana is owned by Udassaian Dharamarth Dera. Madho Ram Chella of Bhagwan Dass was managing the property of Dera. After his death, Mahant Amar Dass-defendant No.1 was appointed as Chella and successor of Mahant Madho Ram. Accordingly, RSA No.2937 of 2009 (O & M) - 2 – defendant No.1 was managing the land of Dera. However, he has no personal right, title or interest in the suit land. Earlier daughters of Mahant Madho Ram including the plaintiff had filed suit against Amar Dass and others. In first appeal in that suit, learned Additional District Judge vide judgment and decree dated 12.05.1997 held the entire suit land to be of Udassaian Dera and held Amar Dass to be Mahant of the Dera. However, Amar Dass-defendant No.1 had no right to alienate the suit land. He, however, mortgaged 23 kanals 6 marlas land in suit in favour of defendant No.2-Ajit Singh in the year 1991 for Rs.40000/-. The said mortgage was without legal necessity and also not for the benefit of the Dera. Subsequently, defendant No.1 sold 23 kanals 6 marlas land in suit to defendant No.2 for Rs.6,98,000/-. On the basis of the two sale deeds executed by defendant No.1 in favour of defendant No.2, mutations No.3048 and 3048/1 were sanctioned. The plaintiff in the suit challenged the said sale deeds and the consequent mutations being illegal and without any right, title or interest. The plaintiff also claimed relief of restoration of possession of land measuring 23 kanals 6 marlas. The plaintiff also sought permanent injunction restraining the defendants from alienating the said 23 kanals 6 marlas land and also from alienating the other 28 kanals 11 marlas land. Defendant No.1-Amar Dass was proceeded exparte. Defendant No.2-appellant contested the suit and broadly controverted the plaint allegations. It was pleaded that defendant No.1 was owner of the suit land measuring 23 kanals 6 marlas and he initially mortgaged it with defendant No.2 vide registered mortgage deed dated 16.09.1991 for Rs.40000/- and defendant No.1 is in RSA No.2937 of 2009 (O & M) - 3 – possession of the said land measuring 23 kanals 6 marlas since then. Subsequently, defendant No.1 sold the said land to defendant No.2 vide two sale deeds dated 17.09.1997 and 26.09.1997 for total consideration of Rs.6,98,000/- and accordingly, defendant No.2 is owner in possession thereof. Defendant No.2 also claimed to be bona fide purchaser of the said land for consideration. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 17.07.2006 dismissed the plaintiff’s suit. However, first appeal preferred by plaintiff has been allowed partly by learned Additional District Judge, Jalandhar vide judgment and decree dated 23.01.2009 and thereby suit filed by the plaintiff has been decreed partly setting aside both the sale deeds regarding 23 kanals 6 marlas land in favour of defendant No.2 executed by defendant No.1. Defendants have also been restrained from alienating the said 23 kanals 6 marlas land as well as the other 28 kanals 11 marlas land. However, relief regarding restoration of possession of 23 kanals 6 marlas land has been declined. Feeling aggrieved, defendant No.2 has preferred the instant second appeal. At the outset, it may be noticed that the instant second appeal at the hands of defendant No.2 pertains to 23 kanals 6 marlas land only and, there is no dispute regarding the remaining 28 kanals 11 marlas land with which defendant No.2-appellant has no concern whatsoever. I have heard learned counsel for the parties and perused the case file. RSA No.2937 of 2009 (O & M) - 4 – Learned counsel for the appellant vehemently contended that details of the sale deeds under challenge were not mentioned in the plaint and even in the witness box, plaintiff deposed that she had not seen the said sale deeds. It was also contended that mortgage created by defendant No.1 in favour of defendant No.2 in the year 1991 is also not under challenge in the suit. It was further contended that the suit has been filed by plaintiff in collusion with defendant No.1-vendor. Reference in this regard was made to statements of plaintiff and her witnesses. On the contrary, learned counsel for respondent No.1 plaintiff vehemently contended that the property is of Dera Udassaian and, therefore, defendant No.1 being Mahant of the Dera had no right to alienate the same. It was also contended that defendant No.2-appellant is not bonafide purchaser of the suit land. I have carefully considered the rival contentions. Insofar as contention for counsel for the appellant that specific sale deeds have not been challenged in the suit is concerned, the same is completely frivolous and meritless. Defendant no.2-appellant himself has pleaded the sale deeds in the written statement and also produced copies thereof as Ex.D-1 and Ex.D-2. Even the plaintiff stated in the plaint about the two sale deeds being for consideration of Rs.6,98,000/- which is also the case of defendant No.2 himself. Moreover, mutation Nos.3048 and 3048/1 sanctioned on the basis of said sale deeds have also been specifically pleaded and challenged in the plaint. Consequently, it cannot be said that the plaint is vague regarding description of the sale deeds under challenge. In any RSA No.2937 of 2009 (O & M) - 5 – event, defendant No.2-appellant very well knew and understood the sale deeds which were under challenge and has himself produced the copies thereof. As regards non-challenge to the mortgage deed, it has been pleaded in the plaint that mortgage deed was also without consideration, although in the relief prayed for in the plaint, there was no specific challenge to the mortgage deed and consequently, even the lower appellate Court has not set aside the mortgage deed. Insofar as alleged collusion of plaintiff with defendant No.1 is concerned, the said contention is completely beyond pleadings. Learned counsel for defendant No.2-appellant in spite of specific inquiry could not refer to any such pleading in the written statement. Even otherwise, on the basis of alleged collusion, property of Dera cannot be allowed to be usurped by the defendants. Previously, plaintiff, who is daughter of Madho Ram, along with two other daughters of Madho Ram had filed suit against Amar Dass and others. In that suit, Amar Dass-defendant No.1 himself pleaded the suit land to be of Udassaian Dera. The said previous suit was decreed by the trial Court on the basis of natural inheritance of Madho Ram in favour of all his daughters including the plaintiff herein. However, in first appeal in that suit, the suit land was held to be of Dera Udassaian as canvassed by Amar Dass-defendant No.1- appellant himself in that case. It is thus apparent that the suit land is of Dera Udassaian and was not personal property of Amar Dass. This conclusion is also fortified by the entries in revenue record wherein initially Madho Ram Chella of Bhagwan Dass was recorded RSA No.2937 of 2009 (O & M) - 6 – to be in the column of ownership and, thereafter Amar Dass Chella Madho Ram Chella Bhagwan Dass was recorded to be owner of the suit land. In the previous litigation, the land was held to be of Dera Udassaian as per contention of Amar Dass-defendant No.1 himself. In this view of the matter, defendant No.1-Amar Dass had no right to sell the suit land to defendant No.2. Consequently, sale deeds in question executed by defendant No.1 in favour of defendant No.2 regarding 23 kanals 6 marals land in suit have been rightly held to be illegal, null and void and have been rightly set aside by the lower appellate Court. Learned counsel for the appellant also contended that the appellant is in possession of the suit land since the year 1991 being mortgagee. However, as already noticed, the mortgage in question has not been set aside by the lower appellate Court. Moreover, the said mortgage was created by defendant No.1 in favour of defendant No.2 during the pendency of the previous litigation. Insofar as plea of defendant No.2-appellant that he is bonafide purchaser of the suit land for consideration is concerned; the same also cannot be accepted. Learned counsel for the appellant emphasized that appellant purchased the suit land after making inquiry from revenue record wherein Amar Dass-defendant No.1 was recorded to be owner of the suit land. The contention appears to be very forceful on first blush, but cannot be accepted. In the revenue record, as already noticed, Amar Dass was recorded in the column of ownership as Chella of Madho Ram chella of Bhagwan Dass. The very description in the revenue record mentioning Amar Dass to be RSA No.2937 of 2009 (O & M) - 7 – Chella of Madho Ram chella of Bhagwan Dass would depict that the suit land was not individual property of Amar Dass, but he was recorded in the column of ownership in revenue record on account of being Chella of Madho Ram. Consequently, on bare perusal of the revenue record, defendant No.2 would have been put on guard to make inquiries if the land belonged to Dera or was individual property of Amar Dass. The very description of Amar Dass in the revenue record makes it clear that it was not personal property of Amar Dass. Moreover, Amar Dass was in litigation with plaintiff and others and it was own contention of Amar Dass that the land is of Dera Udassaian. Defendant No.2-appellant is transferee from Amar Dass and, therefore, defendant No.2 cannot stake claim against the stand of Amar Dass and is bound by the stand taken by Amar Dass in the previous litigation because defendant No.2 purchased the suit land after decision of the previous litigation. The very fact that defendant No.2 purchased the suit land soon after decision of first appeal in the previous suit would also depict that defendant No.2 was in the knowledge of the previous litigation and he purchased it from Amar Dass after decision of first appeal in the previous litigation. For this reason as well, defendant No.2-appellant cannot be said to be bonafide purchaser of the suit land. For the reasons aforesaid, I find no merit in the instant second appeal. Finding recorded by the lower appellate Court is fully justified by the evidence on record and is supported by cogent reasons. The said finding cannot be said to be perverse or illegal in any manner so as to call for interference in second appeal. No RSA No.2937 of 2009 (O & M) - 8 – question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. (L. N. MITTAL) JUDGE 07.02.2011 A.kaundal