RSA No. 2614 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2614 of 2010 (O&M) Date of decision: October 27, 2010 Dr. Neena Duggal ...Appellant Versus Harjit Kaur and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. BR Mahajan, Advocate, for the appellant. GURDEV SINGH, J. The appellant/plaintiff No.2-Dr. Neena Duggal has preferred this second appeal against the judgment and decree dated 30.9.2009 passed by the Additional District Judge, Kapurthala, vide which he dismissed the appeal filed by her and plaintiff No.1 against the judgment and decree dated 24.1.2007 passed by the Civil Judge (Sr. Divn.), Kapurthala, dismissing their suit for declaration to the effect that they, alongwith defendant/respondent No.2, are joint owners (co-sharers) in possession of 24 kanal 17 marla of land out of total suit land 134 kanal 4 marla situated at Kapurthala, being 5/27 share (5/81 share each) and land measuring 17 kanal 19 marla being 1393/7520 share (1393/22560 share each) in the land measuring 94 kanals situated at Kapurthala and also their suit for permanent injunction restraining defendant No.1 and 3 to 12 from interfering in their joint possession and in the alternative their suit for joint possession, in case they are not found to be joint possession of that land. RSA No. 2614 of 2010 2 The plaintiffs pleaded in the plaint that Joginder Singh (deceased) was the owner of the land in dispute who died on 4.10.1993, leaving behind plaintiff No. 1 as his wife, plaintiff No.2 as his daughter and defendant No.2 as his son. They inherited this land in equal shares on the basis of the natural succession. During his life time, they were having cordial relations with him and had been looking after him till his death. Harjit Kaur defendant/respondent No.1 is not related to the deceased and is a stranger to their family. She has got no right, title or interest in the properties, including the land in dispute, left behind by the deceased. She in connivance with the revenue officer got the mutation sanctioned in her favour on the basis of the Will dated 16.10.1992 allegedly executed in her favour by the deceased. No such Will was executed by him during his life time and the same is a forged and fabricated document. No notice was ever served upon them before sanctioning of mutation. In fact, the deceased was not keeping good health and was bed ridden. His physical and mental factors were adversely affected due to old age and weakness and, as such, there was no question of his executing any such Will. Out of this land, different parcels of land were sold by defendant No.1 in favour of defendant No. 3 to 11. Those sale deeds have no effect on their rights in the suit land. The defendants are trying to interfere in their possession over the suit land and, as such, they filed the suit for declaration and permanent injunction. The suit was contested by defendants No. 1, 3 to 5, 8 to 11 and 12. Defendant No.1 in her written statement admitted the relationship of the plaintiffs and defendant No.2 with the deceased and that he expired on 4.10.1993. She also admitted the sanctioning of the mutation in respect of the land in dispute in her favour. She denied the other contentions made in RSA No. 2614 of 2010 3 the plaint and pleaded that on 16.10.1992, the deceased entered into an agreement for the sale of 46 kanal 4 marla of land i.e. 5/27 share in the land measuring 249 kanal 10 marla in favour of Capt. Harminder Singh and others for a total sale consideration of ` 18 lakhs and received the entire sale consideration at the time of execution of that agreement. The partition proceedings were pending and it was agreed that the vendees would step into the shoes of the vendor qua the ownership of the land to be allotted to him in the partition proceedings and that they shall be entitled to take possession of that land. The deceased executed general Power of Attorney in favour of Jasbir Singh and others on the same day. As sufficient time was required for the enforcement of the terms of the agreement, so the deceased executed the will dated 16.10.1992 in her favour with his free consent, while in sound disposing mind. The said amount so received by the deceased was deposited in different banks and with the help of that amount he acquired different properties. She also took up preliminary objection to the effect that the suit is barred by limitation and is not maintainable in the present form. The same has been filed as a result of collusion between the plaintiffs and defendant No.2 and the plaintiffs are estopped from filing the same on account of their own act, conduct and waiver. They have no locus standi nor any cause of action to file the suit and the same has not been properly valued for the purpose of court fee and jurisdiction. Defendants No. 3 to 5, 8 to 11 and 12 filed separate written statements, in which they admitted that the sale deeds so mentioned in the plaint were executed in their favour. They pleaded that they are bonafide purchasers for valuable consideration and the sales in their favour are RSA No. 2614 of 2010 4 protected under Section 41 of the Transfer of Property Act, 1882. They supported the contentions, as pleaded by defendant No.1 in her written statement. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiff No.1 is widow, plaintiff No.2 daughter and defendant No.2 son of Shri Joginder Singh deceased ? OPP 2. Whether Sh. Joginder Singh since deceased has voluntarily of his own free will executed will dated 16.10.1992 in his sound and disposing mind regarding suit land in favour of defendant No.1 ? OPD-1 3. Whether the plaintiffs are entitled to the declaration and injunction prayed for ? OPP 4. Whether the suit is within time ? OPP 5. Whether the suit is not maintainable in the present form ? OPD 6. Whether the plaintiffs are barred, precluded by their act and conduct, omission, commission, on the principle of waiver and estopped to file the present suit ? OPD 7. Whether the plaintiffs have got no locus standi to file the present suit ? OPD 8. Whether the plaintiffs have got no cause of action to file the present suit ? OPD 9. Whether the suit has been properly valued for the purpose of jurisdiction and court fee ? OPD RSA No. 2614 of 2010 5 10. Whether Sh. Joginder Singh since deceased has entered into an agreement for sale dated 16.10.1992 for a consideration of Rs. 18 lacs (18,00,000/-) regarding suit land with Captain Harminder Singh and others and delivered possession, if so, its effect ? OPD 11. Whether Sh. Joginder Singh since deceased has given general power of attorney dated 16.10.1992 to Jasbir Singh son of Ajit Singh and others ? OPD 12. Whether the defendants No. 8,9,10,11 & 12 are bonafides purchasers for valuable consideration, without notice and protected under Section 41 of the Transfer of Property Act ? OPD, 8,9,10,11 & 12. 13. Whether the suit is bad for mis-joinder of parties and mis joinder of causes of action and multifariousness ? OPD 14. Whether there is a collusion between the plaintiffs and defendant No.2 ? OPD 15. Relief. On the basis of the evidence so produced on record and hearing learned counsel on their behalf, the trial court dismissed the suit of the plaintiffs, after recording the finding on the above said issues. As already stated above, the plaintiffs filed the appeal against the judgment and decree of the trial court but the same was dismissed by the first appellate court. I have heard learned counsel for the appellant/plaintiff No.2. Learned counsel for plaintiff No. 2 has tried to assail the findings recorded by the trial court and affirmed by the first appellate court on the ground that the evidence produced by the plaintiffs has not been RSA No. 2614 of 2010 6 properly appreciated. He has not assailed the concurrent finding so recorded by the courts below on any other ground. In view of the submissions, so made by the learned counsel for the plaintiff No.2, it cannot be said that any substantial question of law arises in the present appeal. The same is, therefore, not maintainable and is dismissed as such. October 27, 2010 (GURDEV SINGH ) prem JUDGE