RSA No.1179 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1179 of 1984 Date of Decision: 18 .02.2010 Atamjit Singh ..Appellant Vs. Smt.Surjit Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Dhaliwal, Advocate, for the appellant. Mr.Kamal Sehgal, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This is plaintiff's regular second appeal against the judgment and decree dated 17.1.1984, passed by the learned courts below vide which suit filed by the plaintiff/appellant for declaration stands dismissed. RSA No.1179 of 1984 2 Pleaded case of the plaintiff/appellant was that he is owner of the land measuring 98 kanals 12 marlas, situated at Dakoha. Land was originally owned by Gurbux Singh who executed a registered Will dated 20.5.1964 in favour of the plaintiff and after the death of Gurbux Singh on 10.4.1969 plaintiff became owner of the suit land. Gurbux Singh had executed a sale deed dated 19.6.1958 in respect of the suit land in favour of defendant No.1 Smt.Surjit Kaur. Sale was said to be Benami transaction and without consideration. It was also the case of the appellant/plaintiff that Surjit Kaur executed general power of attorney in favour of Gurbux Singh on 29.6.1969 whereby he was authorised to manage the suit land, in any manner, he liked. Under the said power of attorney Gurbax Singh remained in possession during his life time and original sale deed also remained with him. It was alleged that the defendants have illegally taken possession of the land in 1974-75. It was also pleaded case of the plaintiff that he obtained letter of administration on the basis of Will dated 20.5.1964 executed in his favour and the appeal filed by defendants No.2 and 3 against the said order was pending before the High Court. Validity of the Will was never challenged. As the defendants failed to acknowledge the claim of the plaintiff, therefore, he filed a suit seeking relief of possession of land measuring 98 kanals 12 marlas. Suit was contested by the defendant/respondents, inter alia, on the ground that the suit for declaration was not maintainable. It was also pleaded that the plaintiff had no locus standi to file the present suit. Suit was said to be barred by limitation. Objection regarding valuation of the suit RSA No.1179 of 1984 3 regarding court fee and jurisdiction was also taken. On merit, Will in favour of the plaintiff was denied and it was maintained that the suit land was sold in favour of Surjit Kaur by Gurbax Singh during his life time. Sale was perfectly valid and binding on the plaintiff. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the sale deed dated 19.6.58 executed by Gurbax Singh deceased in favour of defendant No.1 Smt.Surjit Kaur was forged document and was a benami transaction? OPP 2. Whether the land in suit form part of the estate left by Gurbux Singh deceased? OPP 3. Whether the suit in the present form is not maintainable? OPD 4. Whether the suit is within time? OPP 5. What is the effect of not obtaining letter of administration to the estate of Gurbux Singh deceased by the plaintiff? OP Parties 6. What is the effect of the appeal pending in the Hon'ble Court against the order of the grant of letter of administration to the plaintiff? OPParties 7. In case issue No.2 is proved whether Gurbux Singh deceased and defendant No.1 committed fraud on the RSA No.1179 of 1984 4 Surplus area Law? If so, its effect? OPD 8. Whether the suit is properly valued for the purposes of court fee and jurisdiction?OPP 8-A Whether the written statement filed by the defendant is not properly verified, if so its effect? OPP 9. Relief. On appreciation of evidence, learned trial court on issue No.1 held that it was not proved that the sale in favour of defendant No.1 by Gurbux Singh was a benami sale and issue No.1 was decided against the plaintiff specially in view of the fact that mutation of sale was duly sanctioned. Issue No.2 was also decided against the plaintiff and it was held that the suit land after having been sold for valuable consideration did not form part of the estate of Gurbux Singh. Issue No.3 was not pressed, therefore, decided against the defendants. On issue No.4, which is most important issue it was held that the sale deed dated 19.6.1958 was not void ab initio but was only voidable which could be challenged within 3 years of its execution. Death of Gurbux Singh took place on 10.4.1969. Suit was not filed within 3 years of his death which was only filed on 9.4.1979 and therefore, the suit was held to be time barred. On issues No.5 and 6, it was held that the plaintiff had not taken the letter of administration as yet and the appeal against the order RSA No.1179 of 1984 5 passed by the learned trial court was pending before the High Court, therefore, these issues were also decided against the plaintiff. Issue No.7 was decided against the defendants for want of evidence. Issue No.8 was also decided against the defendants having been not contested. Issue No.8-A was not contested by the plaintiff/appellant, therefore, this issue was also decided against the plaintiff. In view of the findings recorded above, suit was dismissed. In appeal, before the learned lower appellate court, issue No.4 was not challenged which was very material issue, as in the absence of reversal of finding on issue No.4, the plaintiff could not succeed in the suit. Learned lower appellate court held that there was dispute with regard to the execution of the sale deed Ex.P.1, wherein it was mentioned that an amount of Rs.5000/- (Rupees five thousand only) was received by Gurbux Singh from Smt. Surjit Kaur vendee. This fact was proved by Gurbachan Singh, who appeared as DW 1, who deposed having paid this amount to his wife, towards the sale consideration. This deposition was not challenged in the cross-examination. The learned lower appellate court also held, that there was nothing on record to show that after the sale Gurbux Singh, continued to be in possession nor any application was made by the plaintiff/appellant for obtaining letter of administration, qua the property in dispute. Thus, the finding on issues No1 and 2 were affirmed. Learned lower appellate court also held that issuance of letter of administration, had no effect on the decision of the case. Appeal was also dismissed. RSA No.1179 of 1984 6 Learned counsel appearing on behalf of the appellant raised following substantial question of law for consideration by this court:- 1. Whether documentary evidence has been misread and misapplied specially by ignoring the general power of attorney, which proved the sale to be sham transaction? In support of the substantial question of law, learned counsel for the appellant, vehemently contended, that once it was proved on record that Ex.P.1 was executed by Smt. Surjit Kaur it could lead to only one conclusion, that the sale deed was a sham transaction. In support of this contention, learned counsel for the appellant placed reliance on the judgment of Hon'ble Allahabad High Court in the case of Roshan Lal Vs. Ramji Lal & Anr. 1964 ALJ 1079, to contend that a fictitious transaction is one which is not intended to be operative, it neither extinguishes an existing interest, nor creates a new one. The title to the suit property, in respect of which such a transaction takes place, is not at all affected, and continues with the person who falsely professes to pass it. Reading of this judgment would show that Hon'ble Allahabad High court, has further held that the transferee in a transaction which is voidable under section 53 of the Transfer of Property Act, acquires a real interest in the property which remains subject to the claim of a creditor of transferor. In the case in hand, it was proved on record, that in pursuance to the sale, mutation was sanctioned, therefore, effective title passed on to RSA No.1179 of 1984 7 defendant No.1. Learned courts below on appreciation of evidence, have also recorded a positive finding, that there was no evidence on record to show that possession after the sale remained with Gurbux Singh. It can not, therefore, be said that the judgment and decree is the outcome of misreading of documentary evidence, as contended. Even otherwise, once the appellant had chosen not to challenge the finding on issue No.4, before the learned lower appellate court, vide which the suit filed by the plaintiff was held to be time barred, said finding attained finality. The plaintiff/appellant cannot succeed, in this appeal in view of the findings on issue No.4, holding that suit was barred by limitation. Substantial question of law raised is answered against the appellant, and in favour of the respondents. For the reasons stated, there is no merit in this appeal which is dismissed but with no order as to costs. 18.02.2010 (Vinod K.Sharma) rp Judge