R.S.A. No. 566 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 566 of 2010 (O&M) Date of decision: 08.02.2010 Deepa Ram and others ....Appellants Versus Neki Ram and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Ashish Handa, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) CM No. 1582-C of 2010 For the reasons stated in the application, CM is allowed and the delay of six days in refiling the appeal is condoned. RSA No. 566 of 2010 This regular second appeal is directed, against the judgment and decree dated 30.11.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants, stands dismissed. The plaintiff/appellants filed a suit for declaration and injunction claiming themselves to be owner in possession of ¾ share of the property in dispute i.e. ½ on the basis of pre-emption decree, passed in favour of the predecessor-in-interest of the plaintiff/appellants and ½ of the remaining half by way of inheritance. The suit was contested, by taking a specific stand that the decree of pre-emption passed in favour of the predecessor-in-interest of the plaintiff/appellants was not executable, being void and not binding on the rights of the defendants. As regards the plea of inheritance was concerned, the defence taken was, that the plaintiff/appellants were not R.S.A. No. 566 of 2010 (O&M) -2- entitled to inherit the property in presence of Class I heirs of the deceased. The dispute qua inheritance was pending in the separate civil suit filed by the plaintiff/appellants. The learned Courts below recorded a concurrent finding of fact, that the decree of pre-emption in faovur of the predecessor-in- interest of the plaintiff/appellants was void and not executable. The plaintiff/appellants had failed to prove the payment of amount agreed to be paid in terms of the compromise decree. The learned Courts below on appreciation of evidence recorded a finding, that the amount of Rs.1,752/- (Rupees one thousand seven hundred and fifty two only), said to have been paid under compromise decree, was merely deposited in the treasury without giving particulars of the Court, suit or the decree, nor the names of the beneficiaries were mentioned. The learned Courts below also held, that the execution application filed by the plaintiff/appellants was dismissed as withdrawn, and not as satisfied. It was also admitted fact that the decree was passed against the minors on the basis of statement of the person who was not authorised to act on their behalf. The decree being against the interest of the minors was, therefore, held to be void. As already observed above, the other part of the relief was held to be not maintainable in view of presence of Class I heirs of the deceased. There was a dispute already pending by way of separate suit between the parties, qua inheritance. Learned counsel for the appellants contended that the appeal raises the following substantial question of law: - “Whether the decree passed in the pre-emption suit was wrongly rejected though proved to have been duly executed?” In support of the substantial question of law, the learned R.S.A. No. 566 of 2010 (O&M) -3- counsel for the appellants contended, that the plaintiffs being co-sharers were already in possession of the property. Therefore, no possessory right was to be claimed. The execution of the decree was complete merely by deposit of money, which stood proved. The learned Courts below, therefore, committed an error in recording a finding, that the decree was not executed and that it was a void decree. On consideration, I find no force in the contention raised by the learned counsel for the appellants. The learned Courts below have rightly held, that even as co-sharers plaintiffs' right of possession was limited to only share and not to the complete land. The decree-holder, therefore, was required to seek possession of the property by executing the decree, which they failed, as the execution application was dismissed as withdrawn. The appellants had further failed to prove the payment of decretal amount of Rs.1752/- (Rupees one thousand seven hundred and fifty two only) to defendant/respondents in the case filed for pre-emption. This coupled with the fact, that the decree was passed against the minors without their consent or appointing a Court Guardian to watch their interest, was void and, therefore, not enforceable. The learned Courts below rightly dismissed the suit. The substantial question of law is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) February 08, 2010 Judge R.S.