RSA No.3298 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.9827-C of 2008 & RSA No.3298 of 2008 Date of Decision:21.01.2009 Ganpat & ors. ....appellants Versus Mangat Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Jai Vir Yadav, Advocate for the appellants **** RAKESH KUMAR GARG J. CM No.9827-C of 2008 For the reasons mentioned in the application delay of 1 day in filing the appeal is condoned. CM stands disposed of. RSA No.3298 of 2008 This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for declaration to the effect that plaintiffs are owner in possession of the suit land on the basis of sale deed Ex.P-1 dated 30.05.1975 with a consequential relief restraining the defendants from interfering in the possession of the plaintiffs on the suit land except by way of partition, was decreed. As per the averments made in the suit defendant No.1 Dhanna Singh was the co-owner in possession of land measuring 169 kanal 3 marlas comprised in khewat No.243 khatoni No.354 to 356 situated in the area of village Khod, District Mohindergarh as per Jamabandi for the RSA No.3298 of 2008 2 year 1972-73. Aforesaid Dhanna Singh sold land measuring 8 kanals comprised in killa No.29/22 of his share in favour of the plaintiffs vide sale deed No.211 dated 30.05.1975 with a sale consideration of Rs.6000/- and possession was delivered to the plaintiffs on the spot. Thereafter, mutation bearing No.1351 was sanctioned in their favour on 06.08.1984. The suit land comprised in khasra No.29/22 was shown to be a part of total land measuring 149 kanals 19 marlas of khewat No.267 khatoni No.431 in the jamabandi for the year 1977-78. However, defendant No.1.in collusion with defendants No.2 to 6 and taking the benefit of the fact that mutation had not been got sanctioned executed two sale deeds i.e No.271 dated 14.05.1980 and the other bearing No.587 dated 01.07.1982 along with his brother Bahadur Singh of more than his share of the suit land in favour of defendant Nos.2 to 6 and mutations were also got sanctioned on the basis of those sale deeds. These sale deeds were executed by defendant No.1 in order to deprive the plaintiffs of their rights in the land. In fact defendant No.1 had sold away his share in the land in question in favour of the plaintiffs and he had no right to execute subsequent sale deeds in favour of defendant Nos.2 to 6 and as such these sale deeds and mutation sanctioned on the basis thereof are illegal. Hence prayer for a decree for declaration to the effect that the plaintiffs are owners in possession of the disputed land measuring 8 kanals comprised in khasra No.29/22 and the impugned sale deeds dated 14.05.1980 and 01.07.1982 executed by defendant No.1 in favour of defendant Nos.2 to 6 and the mutations sanctioned on the basis thereof and the orders dated 22.03.1993 and 24.11.1994 are wrong and illegal and are liable to be set aside. Prayer for a decree for permanent injunction was also made for restraining the defendants from alienating any part of the land in suit and from interfering with the possession of the plaintiffs. In his written statement, defendant No.1 admitted to have RSA No.3298 of 2008 3 executed a sale deed in favour of the plaintiffs but was not aware of the date on which it was executed. He was also not aware whether mutation bearing No.1351 was sanctioned on the basis thereof. He denied that he executed the impugned sale deeds in favour of defendant Nos.2 to 6 by way of collusion and in order to defeat the rights of the plaintiffs. He asserted that he executed these sale deeds to the extent of his share as per the record. He also pleaded that the suit is not maintainable in the present form and is time barred and the plaintiffs are estopped from filing the suit. In their joint written statement, defendant Nos.2 and 3 averred that defendant No.1 was not competent to sell any particular khasra number and the sale deed relied upon by the plaintiff is a result of collusion and is merely a paper transaction and was never acted upon and similarly mutation No.1351(sanctioned on the basis thereof) is illegal. They denied that the land sold by way of a sale deed dated 14.05.1980 was beyond the share of defendant No.1.and in the same way they asserted that the sale deed dated 01.07.1982 is a valid document and mutations No.1210 and 1306 are also valid. It is also the stand of the defendant Nos.2 and 3 that the impugned order dated 22.03.1993 passed by the Collector and order dated 24.11.1994 passed by the Commissioner are legal and valid. It was further submitted that defendant No.1 has since transferred the land of his share in favour of his wife by way of a decree and neither the wife of defendant No.1 nor his brother namely Bahadur Singh has been made a party to the suit and as such the suit is bad on account of non-joinder of necessary parties. In addition, it was pleaded that the plaintiffs have no locus standi to file the suit and that defendant No.5 Ami Lal is already dead and the suit is liable to be dismissed having been instituted against a dead person. It was also pleaded that the defendants are entitled to special costs under Section 35-A CPC. RSA No.3298 of 2008 4 The suit was decreed by the trial Court and a decree for declaration that the plaintiffs are owners in possession of the land in suit measuring 8 kanals comprised in khewat No.314, khatoni No.536, khasra No.29/22 subject to partition and that the impugned sale deeds dated 14.05.1980 and 01.07.1988 are also valid to the extent to which defendant No.1 and his brother were owners in joint khewat and the order dated 24.11.1994 passed by Commissioner had become redundant. Defendants were further restrained from interfering with the possession of the plaintiffs over the land in suit except by way of partition. Feeling aggrieved defendants/vendees preferred an appeal which was also dismissed by District Judge, Narnaul vide impugned judgment and decree dated 27.05.2008. Learned counsel for the appellants has vehemently argued that the appellants are bona fide purchasers of suit land and they have raised this issue before the Lower Appellate Court. However, no finding has been recorded by the Lower Appellate Court in this regard. The argument of the appellant is without any merit. Neither the plea of bona fide purchaser was raised by the appellants in their pleadings nor this argument is available to the appellants in this appeal as the Lower Appellate Court has held as under: “As seen above, the sale of 8 kanals of land comprised in khasra No. 29/22 was effected in favour of the plaintiffs on 30.05.1975 by way of a sale deed which was duly registered and mutation was sanctioned subsequently in the year 1984. As per entries in the copy of Jamabandi Ex.P4 Dhanna Singh (defendant No.1) was in exclusive possession of Khasra No. 29/22 in the capacity of co- sharer. It is not a disputed fact that defendant No.1 was a co-sharer in this land to the extent of more than one killa RSA No.3298 of 2008 5 and as such the sale deed executed by him in favour of the plaintiffs cannot be said to be illegal in any manner. So far as the transfer of specific Khasra Number is concerned, learned Trial Court rightly observed that being a joint holding this sale will be treated as a sale of a share and it will be subject to adjustment at the time of final partition. It was also rightly observed by the Trial Court that the sale deeds executed by defendant No.1 in favour of defendants No.2 to 6 (in the years 1980 and 1982) cannot be said to be totally illegal and the same are valid to the extent of the shares of defendant No.1 and his brother after adjustment of alienation of the land made in favour of the plaintiffs.” Thus, sale deeds in favour of appellants have not been set aside and the same have been held to be valid to the extent of the share of defendant No.1 and his brother after adjustment of alienation made in favour of plaintiffs. Morover, the plea of bona fide purchaser was not taken by the appellants in the Courts below. Neither any issue was claimed by the appellants in this regard. The Hon'ble Supreme Court of India in the case of Bachhaj Nahar vs.Nilima Mandal & anr. JT 2008(13) SC 255 has authoritatively held that a factual issue cannot be raised or considered for the first time in a second appeal. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 21.01.2009 neenu