RSA No.4922 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEALNo.4922 of 2009 DATE OF DECISION: 4 th MAY, 2011 Niranjan Singh .... Appellant Versus Satwinder Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. M. L. Saggar, Senior Advocate with Mr. Sunny Saggar, Advocate for the appellant. Mr. Tushar Sharma, Advocate for respondent No.1-caveator. * * * * L.N. MITTAL, J. (ORAL) Plaintiff-Niranjan Singh having failed in both the courts below has filed the instant second appeal. Appellant-plaintiff filed suit against his brother Satwinder Singh defendant-respondent No.1 and father Puran Singh defendant No.2 (since deceased and represented by respondent No.2 and 3 herein who are also sons of Puran Singh). The plaintiff alleged that defendant No.1 previously filed suit No.264 of 07.04.1994 claiming the suit property to be owned and possessed by plaintiff and defendant No.1 herein in equal shares in view of arbitration award dated 29.03.1979. But now defendant No.1 claims to have purchased the suit property from defendant No.2 vide sale deed dated 18.01.2000 RSA No.4922 of 2009 -2- registered on 24.01.2000 and therefore, the said sale deed is illegal and null and void because defendant No.2 was not owner of the suit property. The plaintiff alleged that he and defendant No.1 are owners of the suit property in equal shares. Aforesaid sale deed was also challenged on the ground that it was not executed by defendant No.2 and it was obtained by way of impersonation and also without consideration. Defendants No.1 and 2 broadly denied the plaint allegations in their separate written statements. It was pleaded that in suit No.264 of 07.04.1994, plaintiff herein, who was defendant No.1 in that suit, himself pleaded that arbitration award dated 29.03.1979 was never acted upon and that Puran Singh defendant No.2 continued to be owner of the suit property. Defendants also pleaded that defendant No.2 has now sold the suit property to defendant No.1 for consideration of ` 90,000/- vide impugned sale deed dated 18/24.01.2000. The said sale deed is legal and valid. Various other pleas were also raised. Learned Civil Judge (Junior Division), Barnala vide judgment and decree dated 06.05.2006 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Barnala vide judgment and decree dated 02.09.2009. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. It is undisputed that in suit No.264 of 1994 instituted by Satwinder Singh defendant No.1 herein, he relied on arbitration award dated 29.03.1979 to plead that plaintiff and defendant herein are owners of the suit property in RSA No.4922 of 2009 -3- equal shares, but the plaintiff herein who was defendant No.1 in that suit himself pleaded that arbitration award dated 29.03.1979 was not acted upon and that Puran Singh defendant No.2 continued to be owner of the suit property. In view of said stand taken by the plaintiff himself, he can not be allowed to take somersault and turn around to plead that in view of arbitration award dated 29.03.1979, both plaintiff and defendant No.1 herein are owners of the suit property in equal shares. On the contrary, plaintiff herein himself repudiated the said arbitration award and pleaded that defendant No.2 continued to be owner of the suit property. Now, defendant No.1 has purchased the suit property from defendant No.2. Consequently, the plaintiff cannot claim any right, title or interest in the suit property. Learned counsel for the appellant contended that impugned sale is without consideration. The contention cannot be accepted because both defendants No.1 and 2 have asserted that the sale deed was executed for consideration of Rs.90,000/-. Defendant No.2 Puran Singh, who executed the said sale deed, was alive when the suit was filed and he filed written statement pleading that he executed the sale deed for consideration of Rs.90,000/-. Consequently, sale deed cannot be said to be without consideration. Learned counsel for the appellant next referred to arbitration award dated 19.11.1999 and contended that according to said award, re-distribution of two other properties (not suit property) was made amongst Puran Singh and his four sons whereas distribution of the remaining properties including the suit property was retained as per arbitration award dated 29.03.1979 and consequently, plaintiff and defendant No.1 are owners of the suit property in equal shares and Puran Singh defendant No.2 was not owner of the suit RSA No.4922 of 2009 -4- property when the impugned sale deed was executed on 18.01.2000. The contention, although apparently very attractive, cannot be accepted. Firstly the contention is beyond pleadings. There is not even a remote reference to alleged arbitration award dated 19.11.1999. Secondly, the said arbitration award allegedly re-distributed two other properties but allegedly retained the distribution of remaining properties including suit property as per arbitration dated 29.03.1979. However, award dated 29.03.1979 was repudiated by plaintiff herein by filing written statement in suit No.264 of 07.04.1994. Consequently the plaintiff now cannot fall back on award dated 29.03.1979. For the reasons aforesaid, I find no merit in this second appeal. Concurrent finding by both the lower courts non-suiting the plaintiff-appellant is fully justified by the evidence on record and is not shown to be perverse or illegal in any manner nor it is based on misreading or mis-appreciation of the evidence. Consequently, it does not warrant interference in second appeal. On the contrary, the plaintiff herein has turned dishonest after defendant No.2 sold the suit property to defendant No.1 by way of impugned sale deed, pursuant to stand of the plaintiff herein himself that defendant No.2 was owner of the property. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. (L. N. MITTAL) JUDGE 4th May, 2011 'raj'