R.S.A.No. 1586 of 2006 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1586 of 2006 Date of decision: 22.7. 2009 Balwinder Singh and others ......Appellants Versus Amrik Singh and others .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Nayar ,Advocate, for the appellants. **** SABINA, J. Plaintiffs Amrik Singh and Gurvinder Singh filed a suit for declaration against Balwinder Kaur, Darshan Kaur, Lakhwinder Singh, Kunan Singh and Balwinder Singh. The suit of the plaintiffs was decreed by the Additional Civil Judge (Senior Division), Baba Bakala vide judgment and decree dated 23.2.2004. Defendants Balwinder Kaur, Darshan Kaur and Lakhwinder Singh went in appeal, which was allowed by the Additional District Judge, Amritsar vide judgment and decree dated 22.9.2004 and the suit of the R.S.A.No. 1586 of 2006 2 plaintiffs/contesting respondents was dismissed. Hence, the present appeal by defendants Balwinder Singh, Harinder Singh and Kunan Singh. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 to 5 of its judgment, are as under:- “3. Case of the contesting respondents as spelt out in the body of the plaint was that the land measuring 1 kanal 18 marlas comprising Khasra No.273 was originally owned by Lachhman Singh son of Bela Singh. Said Lachhman Singh died leaving behind his three sons, namely Kunan Singh, Karnail Singh and Jarnail Singh. Accordingly, the aforesaid three sons of Lachhman Singh became co- sharers in the aforesaid land to the extent of 1/3rd share each. Jarnail Singh also died leaving behind his son Baj Singh. Said Baj Singh having inherited the share of his father Jarnail Singh became a co-sharer with Kunan Singh and Karnail Singh to the extent of 1/3rd share. Baj Singh sold his share in the aforesaid land to the appellant No.1 and the contesting respondents in equal shares. Karnail Singh, father of the contesting respondents, before his death had sold his share in favour of sons of Kunan Singh. This sale was admitted by the contesting respondents. Thus the controversy in the suit was only with respect to 2/3rd share out of 1/3rd share purchased by R.S.A.No. 1586 of 2006 3 the contesting respondents along with appellant No.1 from Baj Singh son of Jarnail Singh. Appellant No.2 was alleging that she had purchased the land measuring 1 kanal 6 marlas from appellant No.1 but the first appellant was competent to alienate and transfer the land measuring 4 marlas 3 sarsahis only and thus the sale deed executed by appellant No.1 in favour of appellant No.2 was forged and fabricated document and was a result of fraud, mis-representation and impersonation and without competence and thus inoperative and not binding on the rights of the contesting respondents. 4. The contesting respondents were in peaceful possession of the land of their share as shown in red colour in the site plan but appellants No. 1 and 2 in connivance of each other and on the basis of the aforesaid forged and fabricated sale deed were threatening to interfere in their peaceful possession and were also threatening to raise constructions and transfer/alienate their share also to some one. If they were not restrained from so doing the contesting respondents were bound to suffer irreparable loss and injury and this necessitated the filing of the suit for seeking the aforesaid reliefs. 5. On notice, appellants filed a joint written statement R.S.A.No. 1586 of 2006 4 wherein preliminary objections were pleaded to the effect that the suit was not legally maintainable; contesting respondents were guilty of concealing true and material facts from the Court and thus not entitled to the discretionary relief of injunction; the suit was without cause of action; it was bad for mis-joinder and non joinder of necessary parties; contesting respondents had no locus standi to maintain the suit for declaration without claiming possession and appellant No.2 was bonafide khasra No.273 min South Khata/Khatauni Nos. 239/468 per jamabandi for the year 1996-97 for valuable consideration of Rs.41,000/- and thus the contesting respondents and proforma respondents had no right, title or interest in the said property since the date of execution of the sale deed on 20.4.1999. On merits ownership of Lachhman Singh over the property, its inheritance by his three sons, namely Kunan Singh, Karnail Singh and Jarnail Singh were admitted while all other allegations of the plaint were denied and it was stated that respondent No.3 (defendant No.4 before the trial Court) took father of the contesting respondents and appellant No.3 under the influence of liquor and other intoxicants to Baba Bakala and obtained his signatures on blank papers. In R.S.A.No. 1586 of 2006 5 the meanwhile appellant No.1 came there and brought her father-in-law back to home. She reported the matter to the police as also to Sub Registrar that the sale deed was got executed by defendant No.4 (respondent No.3) fraudulently. No consideration was paid and thereafter the said respondent Kunan Singh connived with the contesting respondents and devised a noval way to grab the property of the appellants. Further according to them, appellant No.2 was bona fide purchaser of 1 kanal 6 marlas of land bearing Khasra No.273 min South Khata/Khatauni Nos. 239/468 for valuable consideration of Rs.41,000/- and the contesting respondents and this respondent had no right, title or interest in the said property.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to the declaration, as prayed for? OPP 2. Whether the plaintiffs are entitled to the permanent injunction as prayed for? OPP 3. Whether the suit is not legally maintainable? OPD 4. Whether defendant No.1 was competent to alienate the whole suit land? OPD 5. Whether defendant No.2 is a bona fide purchaser? OPD 6. Whether the suit is bad for non-joinder and mis- R.S.A.No. 1586 of 2006 6 joinder of necessary parties ? OPD. 7. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for declaration to the effect that they were co-sharers in possession to the extent of 2/3rd share out of 1/3rd share of land measuring 1 kanal 18 marlas bearing Khasra No.273. Admittedly, the property in dispute measures 1 kanal 18 marls bearing Khasra No.273. As per the jamabandi for the year 1996-97, the said land was owned by Lachhman Singh and after his death, it was inherited in equal shares by his three sons, namely Kunan Singh, Karnail Singh and Jarnail Singh. Jarnail Singh died leaving behind his only son Baj Singh @ Sukhbaj Singh. Baj Singh sold his share of property to Balwinder Kaur, Amrik Singh and Gurvinder Singh in equal shares. The case of the plaintiffs is that Karnail Singh had executed a sale deed dated 19.11.1998 in their favour and in favour of Balwinder Kaur-defendant No.1. However, since Karnail Singh had already sold the land to Balwinder Singh and Harinder Singh then the sale deed executed by Karnal Singh in favour of plaintiffs and Balwinder Kaur was of no consequence. The sale deed dated 25.11.1998 Ex.P-2 executed by Baj Singh in favour of the plaintiffs and Balwinder Kaur was duly proved by the plaintiffs. As per the plaintiffs, the sale deed Ex.D-1 dated 20.4.1999 was null R.S.A.No. 1586 of 2006 7 and void. The said sale deed was executed by Balwinder Kaur- defendant No.1 in favour of Darshan Kaur-defendant No.2. The plaintiffs have not sought cancellation of the sale deed. In order to seek cancellation of sale deed, plaintiffs were required to pay ad valorem Court fee. However, the same was not done. It has been observed by the learned Additional District Judge in the impugned judgment that plaintiffs were not in possession of the suit property as the possession of the suit property was earlier with defendant No.1-Balwinder Kaur and it was transferred to Darshan Kaur-defendant No.2, after sale deed Ex.D-1 was executed in her favour. The fact that the possession of the suit property was delivered to Darshan Kaur-defendant No.2 after the execution of sale deed Ex.D-1 was admitted by defendant No.1- Balwinder Kaur, while appearing in the witness box as DW-3. Plaintiff Amrik Singh, while appearing in the witness box as PW-3, in his cross-examination deposed that he was residing at Kota Mandi with his family and his other brother, plaintiff-Gurvinder Singh, was residing in Lalitpur in Uttar Pradesh. Learned Additional District Judge has further observed that the plaintiffs had stated that the case of the plaintiffs was that the sale deed dated 19.11.1998 executed by Karnail Singh in their favour and defendant No.1-Balwinder Kaur was of no consequence as he had already executed the sale deed in favour of Balwinder Singh and Harinder Singh. However, a perusal of the judgment and decree R.S.A.No. 1586 of 2006 8 dated 26.7.2002 mark 'X' passed with regard to the sale deed executed by Karnail Singh in favour of Balwinder Singh and Harinder Singh reveals that Karnail Singh had sold his 1/3rd share out of khasra No.278, whereas, the controversy involved in the present case related to khasra No.273. In these circumstances, the plea of the plaintiffs that the share of Karnail Singh had been sold to Balwinder Singh and Harinder Singh out of Khasra number in dispute could not be believed. The sale deed executed by Karnail Singh on 19.11.1998 was also not produced on record although it was a very vital document. Learned Additional District Judge has also observed that the land measuring 4 marlas 3 sarsahis was purchased by defendant No.1 from Baj Singh vide sale deed dated 25.11.1998 ExP-2. Since it was not proved on record that Karnail Singh had sold his share to Balwinder Singh and Harinder Singh, then it was established that Lakhwinder Singh son of Karnail Singh had inherited 4 marlas 3 sarsahis of land out of that share. Darshan Kaur-defendant No.2 had purchased the share of Lakhwinder Singh through his wife and had become co-sharer with the plaintiffs. Learned counsel for the appellant has failed to controvert the factual observations made by the learned Additional District Judge. R.S.A.No. 1586 of 2006 9 In these circumstances, the impugned judgment and decree call for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 22, 2009 anita