RSA No.1939 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1939 of 2008 Date of Decision: 10.2.2009 Jarnail Singh ..Appellant Vs. Surinder Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.J.S.Brar, Advocate, for the appellant. --- 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. (Oral) This regular second appeal is directed against the judgment and decree dated 29.11.2007 passed by the learned lower appellate court vide which suit filed by the plaintiff appellant for declaration stands RSA No.1939 of 2008 2 dismissed. The plaintiff/appellant brought a suit for declaration that he is owner in possession of land measuring 43 kanals 16 marlas as detailed in the head-note of the plaint and also challenged the proceedings of delivery of possession dated 1.2.1997 vide which defendants No.1 to 5 were said to have been given possession, to be illegal void etc. It was also the case set up by the plaintiff-appellant that no delivery of possession ever took place. In the alternative he claimed possession. Suit was filed on the ground that originally Fauja Singh son of Jodh Singh was owner in possession of land measuring 43 kanals 2 marlas detailed and described in para No.1 of the plaint who sold the land to the plaintiff for consideration of Rs.32,325/- on 19.12.1979 by way of registered sale deed and thus, the plaintiff/appellant became owner in possession of the said land. Plaintiff/appellant further claimed that Fauja Singh filed an appeal under section 42 of the Consolidation Act (for short the Act) titled Fauja Singh Vs. Salwant Singh and others in the court of Additional Director, Consolidation of Holdings, Chandigarh and the said appeal was accepted on 27.1.1987 and the plaintiff was said to have been allotted 45 kanals 134 marlas in lieu of land measuring 43 kanals 2 marlas and on the basis of said order mutation No.821 was sanctioned by the Assistant Collector IInd Grade, Ferozepur on 5.1.1982. The plaintiff, thus, claimed that he became owner in possession of the suit land and thereafter installed a tube-well by spending Rs.70,000/- and constructed a pucca room on this tube-well, for which electric connection also stands sanctioned in his RSA No.1939 of 2008 3 favour. It was claimed that defendants No.6 to 11 have no right, title or interest in the suit land and warrant of possession of the suit land on the basis of decree in favour of defendants No.1 to 5 against defendants No.6 to 11 was not binding as the plaintiff was not party to the said litigation and thus, he is not bound by the same. The plaintiff, thus, claimed that the proceedings of handing over possession be set aside. On notice having been issued a preliminary objection was taken that issue defendant No.6 is the father of the plaintiff who was party to the suit titled Surinder Singh Vs. Salwant Singh and decree passed in the said suit has been upheld up to High Court on 19.9.1996. They also claimed that the possession of the suit land stands delivered to defendants No.1 to 5 in execution of the decree passed in their favour. Maintainability of the suit was also challenged on the ground of non-payment of proper court fee and and also that the claim raised by the plaintiff was hit by principles of lis pendens. It was claimed that the suit was filed by defendants No.1 to 5 for possession on 14.9.1976 whereas the property was said to have been purchased on 19.12.1979. It was also stated that the plaint was not signed by the plaintiff or verified by him. On merit, averments made in the plaint were denied. Defendants No.6 to 8 and 10 and 11 did not contest the suit and were proceeded ex parte. On the pleadings of the parties, learned trial court was pleased to frame the following issues and additional issues:- 1. Whether the plaintiff is entitled to the declaration prayed RSA No.1939 of 2008 4 for? OPP 2. Whether suit is not maintainable in the present form? OPD 2A. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction? OPD 2B Whether the suit is hit by rule of lis-pendens as mentioned in para No.6 of the preliminary objections of written statement? OPD 2C Whether the suit has not been properly filed, If so to what effect? OPD 2D Whether suit is not maintainable as per the provisions of Section 47 of the CPC? OPD 3. Relief. The plaintiff proved the due execution of the sale deed in his favour and also supported his case by way of oral evidence, whereas the defendants on the other hand brought on record the proceedings Ex.D.1 to Ex.D.3 showing the delivery of possession. The defendants also appeared in the witness box to support the case. Learned trial court decreed the suit by observing that the suit land was not connected with the decree and further that as the plaintiff proved on record registered sale deed in his favour, therefore, not bound by the decree and thus, entitled to declaration prayed for. All the additional issues were decided against the defendants. However, in appeal judgment and decree passed by the learned RSA No.1939 of 2008 5 trial court was set aside primarily on the ground that the sale deed as well as the order of the consolidation officer which was said to have been passed under section 42 the Act on an appeal of Fauja Singh was during the pendency of suit and therefore, the transfer made was hit by principles of lis pendens. Learned counsel appearing on behalf of the appellant vehemently contends that learned lower appellate court committed an error in law in holding that the transfer in favour of the plaintiff/appellant was hit by principles of lis pendens by wrongly presuming that he was drawing his title from his father whereas the suit filed by the plaintiff/appellant was in his independent right on the basis of purchase. However, this plea of the learned counsel for the appellant cannot be accepted. Admittedly purchase by the plaintiff was after consolidation was completed in the village and that was said to be completed in the year 1960. It is not understood as to how an occasion arose for Fauja Singh to file a petition under section 42 of the Act against Salwant Singh. Interestingly no record was produced because it was said to have been brunt. Be that as it may, once the property in dispute was subject- matter of dispute which was contested up to this court by Salwant Singh claiming himself to be the owner in the year 1996, it is not understood as to how this plea that the land stands transferred in favour of the plaintiff was not taken in that regular second appeal. It is also not proved on record as to how without impleading the plaintiff as party, Fauja Singh could get an RSA No.1939 of 2008 6 order passed in his favour for change of khasra numbers allotted to him in consolidation which admittedly stood sold to the plaintiff/appellant. There is nothing on record to show as to which land was withdrawn and given to whom. Learned lower appellate court was, therefore, fully justified in holding that the sale deed if related to the property in dispute and the order passed under section 42 of the Act on an application of Fauja Singh against Salwant Singh was hit by principles of lis pendens and was not to affect right of the decree holder. The facts states in the plaint even if taken to be on their face value may not give right to the appellant to claim his rights qua the land sold by Fauja Singh or allottee of the land in pursuance to the order passed under section 42 of the Act. The plaintiff can have no claim against the decree holder as the transfer if any was hit by lis pendens. The plaintiff being third party could not file suit to challenge the decree. The remedy if any with the plaintiff/appellant is against Fauja Singh the vendor of plaintiff/appellant. For the reasons stated above, it is held that appeal raises no substantial question of law for consideration by this court. No merit. Dismissed. 10.02.2009 (Vinod K.Sharma) rp Judge