Regular Second Appeal No. 4677 of 2010 (O&M) -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 4677 of 2010 (O&M) Date of Decision: December 06, 2010 Som Nath ---Appellant versus Gurdev Singh and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.H.S.Saini, Advocate, for the appellant *** GURDEV SINGH, J. C.M.No. 13865-C of 2010 Heard. For the reasons stated in the application, which is supported by an affidavit, the delay of 8 days in filing the appeal is condoned. Application stands disposed of accordingly. RSA No. 4677 of 2010(O&M) The appellant-defendant No. 2, Som Nath, has preferred this second appeal against judgment and decree dated 14.8.2010 passed by District Judge, Fatehgarh Sahib, vide which he dismissed the first appeal Regular Second Appeal No. 4677 of 2010 (O&M) -2- preferred by him against the judgment and decree dated 13.1.2006 passed by Additional Civil Judge (Senior Division), Amloh, decreeing the suit of respondent No. 1-plaintiff, Gurdev Singh, for possession of the property in dispute and setting aside the sale deed dated 19.12.1979 executed by defendant No. 1 in favour of defendant No. 3, being null and void. The plaintiff averred in his plaint that he is the owner of 100/400th share of the land measuring 5 Biswas bearing Khasra No. 2607/1971/149/1306/429 situated in village Jassran Tehsil Amloh, and as such, 01 Bigha out of that land vests in him. He constructed a house therein and is residing in one of the portion thereof. The other portions have been given to Gurdeep Singh and Som Nath defendants No. 1 and 2, for their residences as licensees. That license, so granted to them in the year 1995, has since been revoked and thereafter, they are coming in possession of that portion of the house illegally and unlawfully. In September, 1999, he came to know that all the defendants in collusion with each other and in order to cause illegal loss to him and illegal gain to themselves sold one portion of the house, shown as mark ABGH in the site plan, filed with the plaint, which was in possession of defendant No. 1, through sale deed dated 19.12.1979, in favour of defendant No. 3 by mentioning boundaries thereof in stead of khasra numbers. That sale deed is illegal, null and void, inoperative and without consideration and is the result of fraud and misrepresentation. The same is not binding upon his rights and is liable to be set aside. The suit was contested by the defendants. They filed independent written statements, in which they denied the contentions of the plaintiffs. Defendants No. 1 and 2 pleaded that entries in the revenue Regular Second Appeal No. 4677 of 2010 (O&M) -3- record, in favour of the plaintiff, are factually incorrect. In fact, all of them are real brothers and they jointly purchased plot measuring 5 Biswas from one Tajwanti, vide sale deed dated 29.4.1969, with joint family funds. Out of that 5 Biswas, the plaintiff sold plot No. 195 measuring 01 Biswas and 7 Biswasi to defendant No. 2, vide sale deed dated 24.6.1975 and he is coming in possession of that plot as owner. He constructed house on that plot with his own expenses by taking loan from M/s Gobindgarh House Building Society. Defendant No. 1 has also sold his portion of the plot/house to defendant no. 3, vide sale deed dated 19.12.1979. When they are not in possession of the plot in dispute, as licensees, the suit of the plaintiff cannot be decreed against them. Defendant No. 3 in his written statement pleaded that after purchasing the plot in the year 1979, he constructed his independent house after dismantling old temporary construction and after getting the site plan sanctioned, in the presence of the plaintiff, who is residing in the neighbourhood. Even the wood work in this house was got done by him from the plaintiff. His possession over this house is adverse, open, hostile, peaceful and undisrupted, continuous and to the knowledge of the plaintiff and the public at large. The plaintiff and defendants No. 1 and 2 are real brothers and they, in collusion with each other, want to grab his house with a mala fide intention and the present suit has been filed only with that intention. He also pleaded that he is the bona fide purchaser and is residing in the house. On the pleadings of the parties, following issues were framed by learned trial court:- 1. Whether the plaintiff is entitled to mandatory injunction Regular Second Appeal No. 4677 of 2010 (O&M) -4- prayed for?OPP 1.a.Whether plaintiff is entitled to declaration that alleged sale deed dated 19.12.1979 executed by defendant No. 1 in favour of defendant No. 3 is illegal, null and void?OPP 2.Whether suit is not maintainable in the present form?OPD 3.Whether plaintiff has got no locus standi to file the present suit?OPD 4.Relief To succeed in the suit, plaintiffs examined Rajinder Singh, PW-2, Sushul Kumar, PW-3, Sant Singh, PW-4 and Surinder Singh PW-6. Gurdev Singh, plaintiff, himself entered the witness box as PW-5. On the other hand defendants examined Ramesh Kumar, DW-2, Balbir Singh, DW-3, Sewa Singh, DW-4, Shashi Kapoor, DW-5 and Sukhchain Singh, DW-6. Defendant No. 3 himself entered the witness box as DW-1. After going through the evidence so produced on the record and hearing learned counsel for the parties, learned trial court decided all the issues in favour of the plaintiff and resultantly decreed his suit. I have heard learned counsel for the appellant-defendant No. 2. It has been submitted by counsel for defendant No. 2 that the other defendants colluded with the plaintiff, as a result of which he was prejudiced. Before the trial court, one advocate represented him and defendant No. 1 whereas before the first appellate court, there was one Advocate representing all the defendants. He was not given any opportunity to produce his evidence and was surprised when the bailiff came to the spot to deliver the possession of the property in dispute to the plaintiff inexecution of the decree. Regular Second Appeal No. 4677 of 2010 (O&M) -5- No application for permission to lead additional evidence under Order 41 Rule 27 CPC has been filed with this appeal. It is not the case of defendant No. 2 that his evidence was closed by order. It is very much apparent from the judgment of the trial court that he was given full opportunity to produce his evidence. There cannot be said to be any collusion between the plaintiff and the other defendants as it was not the present defendant but defendant No. 3, who had taken up the plea that it were the said defendant and defendant No. 1, who were colluding with the plaintiff. He never took up this ground before the trial court nor any such argument was raised before the First Appellate Court. After carefully considering the judgments of the lower courts and the submissions made by counsel for defendant No. 2, I do not find any substantial question of law is involved in the present appeal. The same is, therefore, dismissed. (GURDEV SINGH) JUDGE December 06, 2010 PARAMJIT