R.S.A.No. 1823 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1823 of 2008 Date of Decision:July 08, 2009 Gian Singh ---Appellant versus Avtar Singh and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Dhirinder Chopra,Advocate, for the appellant. *** SABINA, J. Plaintiff –Avtar Singh filed a suit seeking declaration to the effect that he is exclusive owner in exclusive possession of the suit land on the basis of registered sale deed dated 9.6.1994 and also for permanent injunction. Additional Civil Judge ( Senior Division), Phillaur vide judgment and decree dated 13.10.2005 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was allowed by Additional District Judge, Jalandhar vide judgment and decree dated 7.1.2008. Hence, the present appeal by the defendant. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment read as under:- R.S.A.No. 1823 of 2008 {2} “In brief, the facts of the suit of the plaintiff Avtar Singh as set up by him in the plaint before the lower court are that previously Bhagtu was the exclusive owner in possession of the land measuring 5 kanals 7 marlas out of land measuring 10 kanals 14 marlas i.e. to the extent of one half share, situated in village Muthada Kalan. Aforesaid Bhagtu sold 5 kanals of land out Khasra No. 1910, 1911 on 9.6.1994 with possession for Rs. 60,000/- through registered sale deed with the plaintiff. Defendants/respondents Gian Singh and Pargan Singh (hereinafter called the defendants) also signed thumb marked respectively on the sale deed dated 9.6.94 as consenting parties Amarjit Kaur appeared on behalf of the plaintiff as vendee. Since 9.6.94, plaintiff is in possession of the suit land as its exclusive owner measuring 5 kanals. Inadvertently, plaintiff and his wife could not get the mutation sanctioned in their favour in accordance with sale deed dated 9.6.94 as the plaintiff was living abroad. Defendant No. 1 claiming himself openly in the village to be owner of the suit land allegedly purchased by him from Bhagtu. Mutations No. 3509 and 3585 were sanctioned in favour of defendant No. 1 Makhan Singh. The said mutations No. 3509 and 3585 are null, void and illegal having no affects on the rights of the plaintiff. Defendant No. 1 and 4 were having sufficient knowledge about the execution and registration of the sale deed of 5 kanals on 9.6.94 by Bhagtu in favour of plaintiff. Plaintiff so many times requested the defendants to get the mutations No. 3509 and 3585 R.S.A.No. 1823 of 2008 {3} corrected and rectified and also requested them to admit his claim but they have refused, compelling the plaintiff to file the suit for declaration to declare him exclusive owner in possession of land measuring 5 kanals out of khasra Nos. 1910 and 1911 and set aside the mutations No. 3509 and 3585 defendants be also restrained from alienating the suit land in any manner and in the alternative, suit for possession/joint possession of the property in dispute be decreed with costs etc. Before the learned lower court, defendants No. 1 to 4 and 5 submitted written statement in which they took preliminary objections such as plaintiff has no locus standi and cause of action to file this suit by his act and conduct: suit is time barred as well as it is not maintainable in the present form. The plaintiff is neither owner nor in possession of the property in dispute on the basis of alleged sale deed dated 9.6.1994. Mutation No. 3509 and 3585 were rightly sanctioned by the revenue authorities: suit is bad for non-joinder and mis-joinder of parties. It is further pleaded that defendant No. 1 Makhan Singh is owner in possession of the land measuring 9 kanal 19- 1/2 marlas on the basis of sale deed dated 9.2.2000 executed by Bhagtu in favour of defendant No. 1 for a sum of Rs. 4,99,000/- On merits it is submitted that defendant No. 1 has purchased the land measuring 9 kanals 19-1/2 marlas from Bhagtu through registered sale deed dated 9.2.2000. The sale deed dated 9.6.94 is the result of fraud and misrepresentation. In fact, plaintiff is residing in Dubai for the last many years. R.S.A.No. 1823 of 2008 {4} He never came into possession of the suit land in any capacity because the plaintiff has no link or connection with the property in dispute nor he has any right, title or interest in it i.e. why no mutation was sanctioned in favour of the plaintiff. All other para-wise contents of the plaint were denied and prayed for the dismissal of the suit with costs.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether plaintiff is entitled for declaration as prayed for ? OPP (2)Whether mutation No. 3508, 3585 and subsequent entries along with sale deed in favour of defendant No. 1 and 4 are illegal, null and void? OPP (3)Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP (4)Whether the plaintiff is entitled for possession/joint possession in the alternative as alleged? OPP (5)Whether the suit is not maintainable in the present form ? OPD (6)Whether the plaintiff has not locus=-standi to file the present suit? OPD (7)Whether the suit is time barred? OPD (8)Whether suit of plaintiff is bad for mis-joinder and non- joinder of necessary parties? OPD (9)Relief. After hearing learned counsel for the appellant, I am of the R.S.A.No. 1823 of 2008 {5} opinion that the present appeal deserves to be dismissed. Plaintiff had filed a suit for declaration that he was exclusive owner in possession of the suit land on the basis of sale deed dated 9.6.1994. The sale deed was executed by Bhagtu in favour of the plaintiff. The defendant on the other hand, had placed reliance on sale deed dated 9.2.2000 (Ex. D-2) executed by Bhagtu in favour of defendant No. 1. The learned appellate court has rightly held that since the sale deed relied upon by the plaintiff was earlier to the sale deed relied upon by the defendant, the sale deed set up by the plaintiff was liable to be preferred. The fact that the plaintiff did not get the mutation sanctioned in his favour on the basis of the sale deed, would not nullify his title. Plaintiff had successfully proved the sale deed executed by Bhagtu regarding 5 kanal of land in dispute by examining PW-2-Pawan Kumar, scribe of the sale deed, PW-1 Piara, attesting witness to the sale deed. PW-2 also proved the entry made by him in his register(Ex. P-3). In these circumstances, the impugned judgment and decree of the learned Additional District Judge, Jalandhar, do not call for any interference. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 08, 2009 PARAMJIT