RSA No.1742 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1742 of 2007(O&M) Date of decision:17.2.2009 Smt. Sharda and others ......Appellants Versus Sushil Kumar and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Veneet Sharma, Advocate for the appellants. * * * Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decree of the Lower Appellate Court whereby the judgment and decree of the trial Court decreeing the suit of the plaintiffs by declaring the sale deed dated 2.6.1997 executed by defendants No.1 to 4 in favour of defendant No.5 as illegal, null and void to the extent of 1/4th share to which Inderjit Singh (predecessor-in-interest of the appellants) was entitled, has been modified. Briefly, the case of the appellants as set up in the plaint is that the property in dispute was in the exclusive ownership of Piara Lal and Shamrati who are the father in-law and mother-in-law of appellant No.1 respectively. The husband and father of the appellants respectively i.e. Inderjit Singh has already expired. Piara Lal and Shamrati never executed any Will of their properties during their life time and as such, after their death, the property was inherited in equal shares by the predecessor-in- interest of the appellant i.e Inderjit Singh and defendants No.1 to 3 in equal shares and defendant No.4 who is the daughter of deceased Piara Lal and Shamrati was not given any share as she had already been given the share by them during their life time. Therefore, the property was to be RSA No.1742 of 2007(O&M) 2 inherited in equal shares to the extent of 1/4th by Inderjit Singh and defendants No.1 to 3. Defendants No.1 to 3 are in possession over two rooms situated on the ground floor of the property in question and the appellants are in peaceful possession over one room, verandah, kitchen and store on the first floor of the suit property. Defendants No.1 to 4 in order to cause harm and loss to the appellants executed sale deed dated 2.6.1997 in favour of defendant No.5(Contesting respondent No.1) without any right, title or interest over the share of the appellants which they could not have alienated till partition and therefore, the sale deed is null and void. Defendants No.1 to 3 pleaded in their joint written statement in brief that the suit was not maintainable. They had already sold the suit property to defendant No.5 vide sale deed dated 2.6.1997. Earlier, ownership of suit property vested in Piara Lal and Shamrati, pedigree table of Piara Lal, minority of plaintiffs No.2 to 5, plaintiffs No.1 to 5 being legal heirs of Inderjit Singh and opening of intestate succession of Piara Lal and Shamrati was admitted by the defendants. It was also stated that during the life-time of Piara Lal and Shamrati, Inderjit Singh was dis-inherited by them from their movable and immovable properties, as he was out of their control. The plaintiffs have got no right, title or interest in suit property. Defendant No.4, being the only daughter, was also a legal heir of Piara Lal and Shamrati and thus, was entitled to 1/4th share. Plaintiff No.1 Sharda was in possession as tenant under defendant No.5 on some portion. Rest of the allegations of plaint were denied and a prayer for dismissal of suit was made. The case of defendant No.5, as pleaded in his written statement in brief, was that suit is not maintainable as the suit property was already purchased by him from defendants No.1 to 4 vide sale deed dated 2.6.1997. Suit was not properly valued for the purpose of court fee and RSA No.1742 of 2007(O&M) 3 jurisdiction and the plaintiffs had no locus-standi or competence to file the suit and further, they had no cause of action to file the same. Most of the facts, concerning plaintiffs and defendants No.1 to 4, were denied for want of knowledge. Remaining pleadings contained in written statement of defendant No.5, were almost similar to the pleadings contained in the written statement of defendants No.1 to 3. By denying rest of the case of the plaintiffs, defendant No.5 made prayer for dismissal of suit. The suit filed by the appellants was decreed by the trial Court by declaring that the sale deed dated 2.6.1997 executed by defendants No.1 to 4 in favour of defendant No.5 is illegal, null and void to the extent of 1/4th share to which Inderjit Singh was entitled to and also defendant No.5 was restrained from alienating the suit property in any manner till the partition of the property and the respondents were restrained from dispossessing the appellants from the property in their possession being co-sharers. Against the aforesaid judgment and decree dated 21.1.2005 passed by the trial Court, the contesting respondent Shushil Kumar i.e. Defendant No.5, purchaser of the property, filed an appeal. In appeal, the judgment and decree passed by the trial Court has been modified by the Lower Appellate Court by holding that sale deed dated 2.6.1997 is illegal, null and void to the extent of 1/5th share of the appellants and the respondent have been restrained from alienating 1/5th share of the appellants in the suit property and he has further been restrained from dispossessing the appellants from the first floor of the suit property as shown in Ex.PW3/1 site plan which consists of room, kitchen, store, bath room and open passage. Aggrieved of the impugned judgment and decree of the Lower Appellate Court, the plaintiffs have filed the present appeal challenging the RSA No.1742 of 2007(O&M) 4 aforesaid judgment and decree of the Lower Appellate Court. Learned counsel for the appellants has vehemently argued that while modifying the decree of the trial Court, the Lower Appellate Court has not taken into consideration that once it was held that defendants No.1 to 4 could not have executed the sale deed dated 2.6.1997 in favour of the contesting respondent, then the entire sale deed should have been set aside being illegal, and thus, the judgment and decree of the Lower Appellate Court is liable to be set aside. I have heard learned counsel for the appellants. I find no force in the contentions raised by him. The suit of the plaintiffs for declaration that sale deed dated 2.6.1997 is illegal, null and void to the extent of 1/5th share of the plaintiff-appellants in the suit property has been decreed and further the respondents have been restrained from alienating 1/5th share of the plaintiffs in the suit property. Further, vide impugned judgment and decree, the defendants have also been restrained from dispossessing the plaintiffs from first floor of the suit property which is in their possession. In view of the undisputed facts that the suit property was inherited by Inderjit Singh (predecessor-in-interest of the appellants) and defendants No.1 to 4 in equal shares, no fault can be found with the findings of the Lower Appellate Court which have been recorded on appreciation of evidence adduced on record. No substantial question of law arises in this appeal. Dismissed. February 17, 2009 (RAKESH KUMAR GARG) ps JUDGE