RSA No.2647 of 2010 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARAYANA AT CHANDIGARH RSA No.2647 of 2010 Date of Decision: July 22, 2010 Malook Singh ….Appellant Versus Mohinder Kaur and others ….Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. S.L. Chander Shekhar, Advocate for the appellant. RAKESH KUMAR GARG, J. This is defendant’s regular second appeal challenging the judgment and decree of the Courts below, whereby suit of the plaintiffs- respondents for declaration with consequential relief was decreed. As per the brief facts set out in the case, Ajaib Singh, father of the appellant as well as of the plaintiffs and defendant No.4, died on 03.03.1982. Mutation of inheritance of Ajaib Singh was sanctioned on 4.10.1999 in favour of his sons and daughters in equal shares. Ajaib Singh was in possession of land measuring 60 Kanals, 7 marlas, which was owned by the Rehabilitation Department, Government of Punjab. The aforesaid land was ordered to be transferred in the name of Ajaib Singh for a consideration of Rs.6831/- and he deposited Rs.1366/- as earnest money. After his death plaintiffs gave their share of amount to defendants No.3 and 4 for depositing the same with Tehsildar Sales for issuance of conveyance deed in favour of legal heirs of the deceased in equal shares. That defendants No.3 and 4 - RSA No.2647 of 2010 fraudulently submitted a false affidavit before Tehsildar(Sales) and requested to issue conveyance deed in their favour. The said conveyance deed dated 27.1.1997 which was executed on 08.04.1997 was illegal and void. Even defendants No.3 and 4 were requested to admit their claims but in vain. Consequently, the present suit was filed. Appellant in his written statement raised various preliminary objections. On merits the relationship of parties was not denied. It was admitted that the land was owned by Punjab Government. However, it was denied that after the death of Ajaib Singh, plaintiffs came into possession of this land. Rather, after the death of Ajaib Singh, defendants No.3 and 4 were in possession of the land as tenants as the tenancy rights were not inheritable by the daughters. The defendants submitted an application on the basis of possession to purchase the land in dispute in their names as entire consideration was paid by them. Rest of the contentions made in the plaint were denied. Defendant No.5 filed a separate written statement, stating that appellant had taken a loan for purchase of tractor and had mortgaged land measuring 32 kanals, 17 marlas on 18.10.2001 and the respondent-bank had a prior charge over the same. Remaining defendants did not appear despite service and were proceeded against ex parte. In their replication the plaintiffs denied the averments made in the written statement and reiterated the assertions made in the plaint. From the pleadings of the parties the following issues were framed : - RSA No.2647 of 2010 1. Whether the conveyance deed dated 27.01.1997/ null and void and the plaintiffs are entitled for grant of mandatory injunction?OPP 2. Whether the plaintiffs are entitled for grant of permanent injunction?OPP 3. Whether the suit is time barred?OPD 4. Whether the suit is not maintainable?OPD 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 6. Whether defendant NO.3 is a bonafide purchaser in good faith for consideration and protected under Section 41 of Transfer of Property Act?OPD 7. Whether Malook Singh mortgaged the land measuring 12 kanals 0 marlas with defendant NO.5 for tractor loan and crop loan?OPD After hearing the learned counsel for the parties and perusing the evidence on record, the Trial Court decreed the suit. Feeling aggrieved therefrom defendant No.3 only preferred an appeal before the lower Appellate Court, which was also dismissed. While dismissing the appeal, the lower Appellate Court on the basis of documentary evidence on record, recorded a finding of fact that the land in dispute was transferred in the name of Ajaib Singh vide conveyance deed dated 27.01.1997, which was registered on 08.04.1997 (Ex. D-1), the process of transfer of land in the name of Ajaib Singh was initiated during his lifetime and was ultimately transferred in his name although after his death. Thus, the plaintiffs being daughters and maternal grand-daughters of Ajaib Singh were entitled to get their share along with defendants No3 and 4. While - RSA No.2647 of 2010 recording the aforesaid finding the lower Appellate Court also found that defendants No.3 and 4 were not bonafide purchaser in good faith and for valid consideration and had filed false affidavit to the Tehsildar (Sales) claiming that Ajaib Singh had no daughters. The lower Appellate Court also noticed the fact that no cross-objections was preferrd by the plaintiffs and defendant No.5 against the findings on issue No.7 which was affirmed. Still not satisfied the appellant has approached this Court by way of instant regular second appeal. Learned counsel for the appellant vehemently argued that the present case is based on transfer of property under the Punjab Package Deals Property (Disposal) Act, 1976 and in view of Section 16 of the said Act, the jurisdiction of the Civil Court was barred and therefore, the suit was liable to be dismissed only on the aforesaid ground. Learned counsel for the appellant further argued that the appellants were entitled to become owners of the suit property being in possession from 1996 on wards and the findings of the Courts below in this regard are perverse and were liable to be set aside. I have heard the learned counsel for the appellant and perused the impugned judgments and decrees. At the outset it may be noticed that though in the preliminary objections of the written statement, appellant stated that the jurisdiction of the Civil Court is barred, however, no such issue was claimed by the appellant. Neither any argument was raised on his behalf before the Trial Court as well as lower Appellate Court with regard to the bar of Section 16 of the aforesaid Act. Thus, keeping in view the judgment of the Hon’ble Supreme Court in case of Bachhaj Nahar Vs. Nilima Mandal and another, JT 2008(13) SC-255, wherein the Hon’ble Supreme Court of India has authoritatively laid down that any substantial question of law which is based upon a fact which is neither pleaded nor argued before the courts - RSA No.2647 of 2010 below cannot be raised in the regular second appeal, this contention of the appellant is liable to be rejected. The other contention of the appellant is also liable to be rejected as learned counsel for the appellant could not point out any material evidence on record on the basis of which a finding of fact recorded by the first Appellate Court that the land in question was transferred in the name of Harnek Singh vide conveyance deed dated 27.1.1997 could be assailed. Once, that is so, all the legal heirs of said Ajaib Singh were entitled to the suit land as per their shares and no fault can be found on this count. Thus, I find no merit in this case. No substantial questions of law arises in this appeal. Dismissed. 22.07.2010 (RAKESH KUMAR GARG) vcgarg JUDGE -