IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.3382 of 2010 (O&M) DATE OF DECISION: 30.11.2010 **** Smt. Rajani alias Sajani . . . . Appellant Vs. Dharam Singh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Ashwani Gaur, Advocate for the appellant. **** RAKESH KUMAR JAIN J. The plaintiff is in second appeal against the judgment and decree of both the Courts below by which her suit for permanent injunction has been dismissed. The case set up by the plaintiff is that she is owner in possession of the land in Khewat No.75, Khatoni No.100, Khasra No.701 measuring 1 kanal 8 marlas , Gair Mumkin Abadi situated in the Revenue Estate of village Igrah, Tehsil and District Jind to the extent of 1/2 share towards the Southern side while the remaining 1/2 share towards the Northern side is owned and possessed by Amin Chand (proforma respondent). It is alleged that earlier, Bhagat Singh, husband of the plaintiff was owner of the property in dispute to the extent of 1/2 share, who later on transferred his share in her favour by way of Civil Court decree dated 16.12.1978 on the basis of which Mutation No.1017 dated 1.2.1980 was sanctioned. It is alleged that the present suit was filed on the threat of the defendant, who wanted to raise construction on the land in dispute on the strength of sale deed dated 4.3.1980 by the defendant and his brother Dhup Singh, who alleged to have purchased the suit land from her and the proforma defendant. It was, thus, alleged that the sale deed is liable to be set aside because the plaintiff had not sold the land in dispute to the defendant and his brother. In reply, the defendant relied upon the sale deed dated 4.3.1980 to assert his ownership and possession. It was alleged that the foundation of the suit land have already been filled up upto 3 feet. Further elaborating, it was alleged that the plaintiff and proforma respondent had executed a sale deed dated 26.2.1980 regarding the suit land and a sum of `3000/- was paid in the presence of the witnesses while the balance amount of `1000/- was paid on 4.3.1980 at the time of execution of sale deed in the presence of witnesses before the Sub Registrar, Jind. It was alleged that plaintiff and proforma defendant had executed agreement to sell dated 26.2.1980, sale deed and special Power of Attorney on 4.3.1980. The question of fact before the Court was about the execution of the sale deed as alleged by the defendant regarding which a concurrent finding of fact has been recorded. The learned First Appellate Court, on appreciation of the oral as well as documentary evidence, has observed as under: - “Admittedly, the plaintiff along with proforma defendant No.2 Amin Singh was the owner in possession of the suit land upto the extent of half share as recorded in the copy of jamabandi for the year 1998-1999 Ex.P-1. Admittedly, mutation No.1017 dated 1.2.1980 Ex.P2 was sanctioned in favour of the plaintiff upto the extent of half share on the basis of the Civil Court decree dated 16.12.1978. A perusal of the copy of agreement to sell dated 26.2.1980 Ex.D1 shows that the plaintiff and Amin Singh proforma defendant No.2 agreed to sell the suit land upto the extent of their share to defendant No.1 and his brother Dhup Singh at a sale consideration of Rs.4000/-, out of which they received a sum of Rs.3000/- at the time of execution of the agreement to sell and the remaining amount of Rs.1000/- was agreed to be paid at the time of execution of the sale deed, which was to be executed upto 12.3.1980. A perusal of copy of sale deed bearing No.2865 dated 4.3.1980 shows that the plaintiff along with Amin Singh proforma defendant No.2 sold the suit land to the defendant No.1 and his brother in terms of the agreement to sell dated 26.2.1980 and also received the balance sale consideration of Rs.1000/- and handed over the possession of the suit land to them and, therefore, it can be said that the defendant No.1 and his brother became the owners in possession of the suit land being the bonafide purchasers on payment of valuable sale consideration. The execution of the agreement to sell dated 24.2.1980 Ex.D1 and sale deed bearing No.2865 dated 4.3.1980 Ex.DW2/A has been duly proved from the statements of the witnesses examined by the defendant and, therefore, it can be said that the plaintiff is having no concern with the suit land in any manner. Though, the plaintiff has alleged that the sale deed No.2865 dated 4.3.1980 is the result of fraud and misrepresentation on the part of the defendant No.1 and his brother but there is nothing on record to suggest that the defendant No.1 and his brother played any fraud upon the plaintiff in the matter of execution of the sale deed No.2865 dated 4.3.1980, which was executed by none else than the plaintiff herself and proforma defendant No.2, and therefore, the plaintiff is estopped by her own act and conduct to file this suit, which is not maintainable in the present form as the plaintiff has no cause of action to file the suit. Taking this view of the matter, I am of the opinion that the learned trial Court has rightly appreciated the evidence on record in its true perspective while deciding the issues and, therefore, the findings recorded by the learned trial Court on all the issues are hereby affirmed and consequently, the judgment and decree dated 1.11.2008 passed by the learned trial Court is hereby affirmed.” Although, learned counsel for the appellant has argued the case strongly but he has failed to point out any legal defect in the judgment and decree of the Courts below in order to persuade this Court to tinker with the firm finding of fact recorded against the plaintiff. As a matter of fact, no question of law much less substantial has been raised during the course of arguments which is sine qua non for maintaining the Second Appeal in view of Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’). Thus, the present appeal is found to be without any merit and as such the same is hereby dismissed. No Costs. (RAKESH KUMAR JAIN) November 30, 2010 JUDGE Vivek