R.S.A. No. 2461 of 1983 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2461 of 1983 Date of decision:- 13.10.2011 Surain Singh and others ...Appellants Versus Balbir Singh and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. P.S. Punia, Advocate for the appellants. Mr. Vikas Bali, Advocate for the respondents. RITU BAHRI J. This Regular Second Appeal has been preferred against the decree and judgment passed by learned Additional District Judge, Ludhiana in Civil Appeal No.528/184 of 1981 decided on 13.10.1983. The defendants are the appellants in this appeal. The plaintiffs-respondents filed a civil suit No.115 of 1979 for possession of the property detailed in the heading of the plaint. According to the plaint, the plaintiff No.1-Balbir Singh and plaintiff No.2-Surjit Singh are the owners of the property and are residing there. Defendant No.4- Amrik Singh is the son of plaintiff No.1-Balbir Singh. He has no right of ownership over the property in dispute. Defendant No.4-Amrik Singh has separated from plaintiff No.1 since long and resides separately. Defendant Nos.1 to 3 claimed to have purchased the property in dispute from defendant No.4-Amrik Singh. Defendant No.4 R.S.A. No. 2461 of 1983 -2- had no right to sell the property and plaintiff No.1-Balbir Singh in fact was the owner of the property in dispute. A civil suit for mandatory injunction was filed by the plaintiffs, which was dismissed in default. The possession of the defendant Nos.1 to 3 is illegal and decree of possession after demolishing of any construction of property in dispute is sought against defendant Nos.1 to 3. Defendant No.4 was proceeded ex-parte as he chosen not to appear inspite of service. Defendant Nos.1 to 3 contested the suit on the grounds of maintainability and bad for mis-joinder of parties. The claimed to have purchase the property from defendant No.4, who was in exclusive possession for the last 19 years. A valid sale deed was executed in their favour by defendant No.4, who had got this property as his share as a result of family settlement. On the basis of the pleadings, the trial Court framed appropriate issues. Learned Sub Judge 1st Class, Ludhiana decreed the suit of possession. Aggrieved by the said decree and judgment of the trial Court the defendants filed an appeal before the Additional District Judge, Ludhiana, which was dismissed on 13.10.1983. The stand taken in the present appeal is that defendant No.4-Amrik Singh being a co-parcener had a right to disposed of his share in the property. The property in dispute fell in the share of Amrik Singh. Amrik Singh had 1/3rd share in the family property as Balbir Singh-plaintiff No.1 had two sons Surjit Singh and Amrik Singh. Therefore, Amrik Singh had 1/3rd share in the joint Hindu family property. The appellants-defendants are bonafide purchasers of the share of Amrik Singh. Amrik Singh was in exclusive possession of the property for the last 19 years. Sale deed Ex.DW2/1 has been R.S.A. No. 2461 of 1983 -3- executed in favour of the appellants-defendants by Amrik Singh. The ownership of Balbir Singh is not being disputed but their right to the property is being asserted on account of the fact that this property fell into the share of Amrik Singh after partition. He was rightful owner and transferred the property vide sale deed Ex.DW2/1. In the trial Court the defendants led their evidence to prove their sale deed by examining DW2-Harchand Singh. He proved the sale deed but did not say anything about passing of the consideration from the contesting defendants to the Amrik Singh-defendant No.4 (respondent No.3 herein). The statement of DW3 another witness is to the same effect. Gurmeet Singh one of the witnesses of the defendants, does not say for how much amount the property in dispute was purchased. Amrik Singh-defendant No.4 (respondent No.3 herein) despite service did not appear before the trial Court to support the contents of sale deed. He was a material witness of the defendants-appellants. The trial Court after examining this evidence led by the defendants-appellants came to a conclusion that the sale deed did not disclose the title of the property in favour of Amrik Singh-defendant No.4 (respondent No.3 in the present appeal). As per evidence the sale deed was not validly proved in accordance with law as none of the witnesses could mention the amount of consideration, which was passed on to the seller i.e. Amrik Singh. There is no evidence that the appellants-defendants had made any inquiries about the ownership of Amrik Singh of the property in dispute. On the other hand the plaintiffs had successfully been able to prove that they are the owner of the property as per the record submitted by Balwinder Singh (PW3) from the Gram Panchayat. The house is assessed to house tax as per 1960 record. In the record, R.S.A. No. 2461 of 1983 -4- maintained in Urdu, Surjit Singh is described as owner of the house. Two sale deeds Ex.P1 by Amrik Singh in favour of Surain Singh and sale deed Ex.P-2 by Jagir Singh in favour of Surain Singh have been placed on record, which goes to show that the house of Surjit Singh is on the Eastern side of the property purchased by Surain Singh. The trial Court has come to a conclusion that there was no valid sale in favour of the appellants-defendants by Amrik Singh and the property in dispute was not in the name of plaintiffs and the suit has been decreed on this ground. The judgment of the trial Court has been affirmed by the Appellate Court by dismissing the appeal of the appellants-defendants on 02.09.1981. Both the Courts have concurrently found that the agreement to sell executed by Amrik Singh-respondent No.3 with the present appellants-defendants was not proved. In the sale deeds Ex.DW2/1 and DW2/2 Amrik Singh does not claim to have become owner of the property either by partition or by virtue of adverse possession. The witnesses led by the defendants could not prove execution of the sale deed. The only controversy that arises in this appeal is that whether Amrik Singh had a right to sell the property during his lifetime, which belonged to his father Balbir Singh being 'Karta' of the family. The appellants-defendants have led evidence to admit the ownership of Balbir Singh that after partition this property fell in the share of Amrik Singh, be became the rightful owner and thus the sales executed by him Ex.DW2/1 and Ex.DW2/2 were valid sales. Counsel for the appellants has vehemently argued that during the pendency of the appeal in this Court Balbir Singh died on R.S.A. No. 2461 of 1983 -5- 1.4.1995 and thereafter the appellants were entitled to the suit property, which fell in the share of Amrik Singh. Reliance has been placed of the judgment passed by this Court in Suraj Mal and others versus Darya Singh and another 1998 A.I.H.C. 2806 and the judgment passed by the Supreme Court in Hardev Singh versus Gurmail Singh (Dead) by LRs 2007(3) SC 56 on the proposition that if a transfer has been made by an unauthorized person and he subsequently acquires the interest in the transferred property then as per Section 43 of the Transfer of Property Act, the present appellants- defendants acquire a right in the property by virtue of the sale deed Ex.DW2/1 executed on 07.6.1976. Counsel for the respondents on the other hand argued that the defendants have completely failed to verify the sale deeds. The evidence of DW2-Harchand Singh and witness Gurmeet Singh could not prove the validity of the sale deeds as they did not mention the amount, which was paid as sale consideration by the appellants- defendants to Amrik Singh-respondent No.3 herein. Amrik Singh did not appear before the trial Court to depose in favour of the sale deed. The findings recorded by both the Courts that the sales were not validly executed does not require any interference at the stage of second appeal before this Court. During the pendency of the RSA Balbir Singh died on 1.4.1995, Amrik Singh-respondent No.3 expired on 23.10.2004 and Surjit Singh-respondent No.2 died on 1.11.2007. The legal heirs of the deceased have been brought on record. The petitioner cannot take benefit of the two judgments as in the present case the validity of the sale deeds has not been proved. Once the defendants have miserably failed to prove that there was any valid R.S.A. No. 2461 of 1983 -6- sale in their favour, they cannot seek the benefit of Section 43 of the Transfer of Property Act. In any case during the lifetime of the Karta i.e. Balbir Singh, Amrik Singh-respondent No.3 could not make a sale of the land in dispute. It was the duty of the appellants-defendants to make necessary inquiries before entering into an agreement whether Amrik Singh had the authority to alienate the share from his joint Hindu family property. The sale is void as per the evidence led by the defendants in the trial Court. In this background benefit of Section 43 of the Transfer of Property Act is not applicable. In order to get the benefit of Section 43 of the Act the following conditions must be satisfied :- “1. The contract of transfer was made by a person, who was competent to contract. 2. The contract would be subsisting at the time when a claim from money of property is made.” In the facts of the present case the transfer was invalid as the sale deeds Ex.DW2/1 and EX.DW2/2 could not be proved. This finding of fact does not require any interference at the stage. Therefore, after the death of Balbir Singh in 1995, the appellants- defendants cannot get the benefit of transfer of the land in pursuance of sale deed, which could not be proved in the trial Court. In view of my aforegoing discussions I do not find any error or illegality in the impugned judgment of the learned Additional District Judge, Ludhiana, the appeal, therefore, fails and accordingly dismissed. No costs. 13.10.2011 ( RITU BAHRI ) Vijay Asija JUDGE