IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- R.S.A. No. 2358 of 2006 Date of decision: 31.1.2008 Balkar Singh --- Appellant Versus Harbans Singh and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Anil Kumar Garg, Advocate for the appellant. Mr. Ashok Singla, Advocate for respondent nos. 1 and 2. --- AJAY KUMAR MITTAL, J. This appeal at the instance of defendant No.2 is preferred against the judgment of reversal passed by the first appellate court. The plaintiffs, respondent nos. 1 and 2 before this Court, filed a suit for declaration to the effect that they were owners in possession of 16 Bighas of land situated in the revenue estate of village Boonga, Tehsil Malerkotla fully detailed in the title of the plaint and that the alienation of land measuring 3 Biswas i.e. 3/77th share out of land measuring 3 Bighas 17 Biswas by defendant no.1 in favour of defendant no.2 vide sale deed dated 1.2.2000 and mutation no. 1111 was illegal, wrong, without jurisdiction and not binding on the plaintiffs. The plaintiffs also sought a decree for permanent injunction restraining defendant No.1 from selling, mortgaging, gifting, exchanging or RSA No. 2358 of 2006 alienating in any manner any portion of the suit land and from dispossessing the plaintiffs from the same forcibly, illegally and without due process of law. The case of the plaintiffs was that defendant no.1, Jagan Singh was owner in possession of the land measuring 16 Bighas, and he sold the same to the plaintiffs for a sale consideration of Rs. 32,000/- and mutation no. 723 on the basis of the sale deed dated 7.6.1978 was also sanctioned in their favour. Inadvertently, less land was mentioned by the scribe of the sale deed. Defendant no.1 taking advantage of that inadvertent mistake committed by the scribe of the sale deed claimed himself to be the co-sharer to the extent of 3/77th share in the land measuring 3 Bighas 17 Biswas, which comes to 3 Biswas, and sold the same to defendant No.2 and got mutation no. 1111 in this regard sanctioned in favour of defendant no.2, which was illegal, wrong and not binding on the plaintiffs. Suit was contested by defendant nos. 1 and 2. Averments made by the plaintiffs were controverted alleging that the land measuring 3 Biswas was rightly sold by defendant No.1 to defendant No.2 vide sale deed dated 11.2.2000 for a sale consideration of Rs. 9,000/-, being co-sharer of the plaintiffs in the land comprising Khata Nos. 66/120, 121, 122 and 123. Objection regarding plaint being not property valued for the purpose of court fee and jurisdiction and the maintainability of suit were also taken. The trial court dismissed the suit vide judgment and decree dated 29.11.2004. The first appellate court reversed the findings of the 2 RSA No. 2358 of 2006 trial court and a decree for declaration and for permanent injunction as prayed for by the plaintiffs was passed in their favour. This is how; defendant No.2 has preferred the instant appeal. I have heard learned counsel for the parties and have gone through the record. The trial court upon appreciation of evidence returned a finding that defendant no.1 – Jagan Singh sold his land to the plaintiffs and the plaintiffs had failed to prove that the sale of 3 Biswas of land by defendant no.1 in favour of defendant No.2 was unauthorized and also that a simple suit for declaration without seeking the relief of possession of the land was not maintainable. The first appellate court, however, on re-appreciation of evidence and hearing both the sides observed in Para 13 of its judgment, as under: “Firstly coming to the contention of the learned counsel for the respondents/defendants that the plaintiffs/appellants have not pleaded in the plaint that in case of less sale one Khewat it is adjustable from the other Khewat, that contention is without any force as the question is how much land was owned by Jagan Singh. In two different Khewats the total of that as explained by the plaintiffs/appellants is 16 Bighas only and numbers from both Khewats have been entered and when 16 Bighas of land is completed which was owned by Jagan Singh, the inference is that after sale of total land owned by him from both Khewats, he cannot be 3 RSA No. 2358 of 2006 deemed to be left with any ownership in one Khewat or the other. The contention that he sold land from one Khewat in which some balance was left, in view of the above discussion, holds no ground. The contention that Jagan Singh has not denied sale to Balkar Singh, is immaterial, as the main question remains whether Jagan Singh was left with any title in the balance property or not and when he was left with no title, as explained in the plaint the sale has no effect and then it need not be challenged and the plaintiffs/appellants need not have sought decree for possession of the property when they are already in possession of the property and when they are not party to the sale deed they need not to pay the court fee, as alleged. The contention of the learned counsel for the defendants/respondents that the lower court has rightly held that the plaintiffs/appellants have not proved what effect the sale deed has on their rights so the suit is not maintainable, the said contention has also no force as when under the garb of sale deed the other party is trying to interfere in the possession of the plaintiffs/appellants on the suit property which they purchased long time back, certainly it is casting clouds on their rights and the observations of the lower Court that the suit is not maintainable, are un-called for. The above discussion shows that Jagan Singh was left with no title in the suit property so he could not have sold any 4 RSA No. 2358 of 2006 property to Balkar Singh on the plea that in one Khewat he is having share. The observations of the lower court while deciding issue No.1 are that Jagan Singh sold land to the plaintiffs, but has not discussed whether after sale of 16 Bighas of land Jagan Singh was having any balance land or not, therefore, sale of 3 Biswas of land by defendant no.1 is unauthorized and not binding upon the plaintiffs/appellants and the suit is certainly maintainable. So the findings of lower Court on issue No.2 and 4 are reversed and they are held in favour of the plaintiffs/appellants and against defendants/respondents.” Accordingly, it was held as under: “So far as the findings on issue No.3 are concerned, due to reversal of findings on issue No. 2 and 4 the appeal is allowed and decree for declaration to the effect that the plaintiffs are owners in possession of 16 Bighas of land, fully detailed in the title of the plaint, and sale of 3 Biswas of land by defendant no.1 to defendant no.2 is illegal, wrong, null and void and the said sale has no effect on the rights of the plaintiffs/appellants and defendant no.1 is further restrained from selling, mortgaging or gifting any other land, as detailed in Para (B) of the head note of the plaint and defendant no. 1 and 2 are also restrained from interfering in the possession of the plaintiffs/appellants in the suit property, illegally and forcibly in any manner or causing any 5 RSA No. 2358 of 2006 obstruction in raising of construction by the plaintiffs/appellants in the suit property.” Learned counsel appearing for the appellant though vehemently stated that the findings of the lower appellate court are wrong and illegal and thus deserve to be set aside, but he could not pint-point by reference to any material on record or law on the subject, any error or perversity in the said findings so as to persuade this Court to interfere therewith. No question of law much less a substantial question of law is said to have arisen or shown to this Court for consideration. The first appellate court has reversed the findings of the trial court on re-appreciation of evidence by specifically holding that the share of defendant Jagan Singh in both the Khewats comes to 16 Bighas only and when he had sold his complete share to the plaintiffs, he could not be deemed to have been left with any ownership in one Khewat or the other. In view of the above, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) January 31, 2008 JUDGE *RKMALIK* 6