R.S.A.No. 3609 of 1998 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3609 of 1998 (O&M) Date of decision: 27.10.2009 Jaswant Singh and others ......Appellants Versus Jaspal Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. B.S.Bedi, Advocate, for the appellants. Mr.Arun Singhal, Advocate, for the respondents. **** SABINA, J. Plaintiffs- respondents filed a suit for declaration, which was decreed by the Civil Judge (Sr.Divn.), Panipat vide judgment and decree dated 7.5.1996. In appeal, the said judgment and decree were upheld by the Additional District Judge, Panipat vide judgment and decree dated 5.9.1998. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 3609 of 1998 (O&M) 2 Court in para Nos. 3 to 5 of its judgment, are as under:- “3. Brief facts giving rise to the filing of civil suit No.388 of 1986 as per averments in the plaint are like this; plaintiff Jaspal Singh has been residing in West Germany and as per version of the plaintiffs, he had authorised Kidar Singh son of Hem Raj resident of Madlauda to do all acts and to file the suit or to defend any suit regarding the suit land vide special power of attorney dated 6.5.1986. On the basis of this power of attorney, the present suit was filed by Kidar Singh on behalf of Jaspal Singh. The plaintiff No.1 came to know that defendants No.1 to 3 filed a suit for declaration of their ownership on the basis of a judgment and decree dated 29.7.1983 allegedly passed by the learned Sub Judge IInd Class, Panipat in civil suit No.18 of 1983 titled as Harbhajan Singh vs. Jaspal Singh. It is pleaded that the impugned judgment and decree dated 29.7.1983 are illegal, null and void, inoperative and not binding upon the rights of the plaintiff because the suit land is worth lacs of rupees and could not have been transferred by way of this decree. The impugned civil court decree has been challenged on the ground that the immovable property valuing more than Rs.100/- can be transferred only by registered documents. Moreover, no notice was sent to R.S.A.No. 3609 of 1998 (O&M) 3 the plaintiff No.1 regarding pendency of the suit. It is pleaded that plaintiff No.1 Jaspal Singh neither appeared nor filed written statement nor recorded his statement in civil suit No.18 of 1983. The written statement or statement or power of attorney if any, on the file is based on imporsonation. The impugned judgment and decree has been obtained by fraud, and misrepresentation. The land in dispute was sold by the plaintiff No.1 to plaintiffs No.2 to 9 for a consideration of Rs.78,800/- vide registered sale deed dated 5.6.1984 who were already in posession of the land in dispute as tenants before the execution of the sale deed. It is prayed that the suit of the plaintiffs be decreed to this effect that the impugned civil court decree is illegal, null and void and not binding upon the rights of the plaintiffs and plaintiffs No.2 to 9 have become owners in possession of the land in dispute vide registered sale deed dated 5.4.1984. It is also prayed that the defendants No.1 to 3 be restrained from getting the mutation sanctioned in their favour. It is prayed that the suit of the plaintiffs be decreed with cost. 4. That defendants filed written statement resisting the suit of the plaintiffs on the plea that Kidar Singh alleged attorney of the plaintiff No.1 has no right or locus standi to file the present suit because the deed R.S.A.No. 3609 of 1998 (O&M) 4 of attorney in his favour is a fake and forged document. In the power of attorney, Jaspal Singh has not mentioned his residential address of West Germany and this fact shows that this document was prepared in India in connivance with the plaintiffs No.2 to 9. It is peladed that the suit is not maintainable in the present form as the mutation has been sanctioned in favour of defendants No.1 to 3; that the plaint has not been properly verified; that the suit has not been valued properly for the purpose of court fee; that the suit is barred by limitation; that the suit is bad for mis-joinder and non-joinder of necessary parties. It is pleaded that the alleged power of attorney has not been endorsed by Indian Authority in Germany. The impugned civil Court decree was suffered by the plaintiff No.1 willingly in favour of the defendant and mutation on the basis of this decree was enered in the register of mutation by the Halqa Patwari in the first week of March, 1984. Later on Jaspal Singh became dishonest and by concealing the facts of decree got executed a sale deed in favour of plaintiffs No.2 to 9 on 5.6.1984 through he was neither owner nor in possession of the suit land on that date. The sale deed does not confer any right, title or interest upon the plaintiffs. For just R.S.A.No. 3609 of 1998 (O&M) 5 and proper decision of this case, presence and examination of Jaspal Singh witness was necessary, to prove his signatures on the written statement, power of attorney and statement recorded in civil suit No.18 of 1983. 5. It is pleaded that a deep rooted conspiracy has been hatched by plaintiffs No.2 to 9 with Jaspal Singh against the interest of the defendants. In their first attempt, the plaintiffs destroyed or misplaced the original file of case No.18 of 1983 which is not traceable, so that the defendants may not be able to prove their rights of ownership over the land in dispute. Due to non-availability of the file of civil suit No.18 of 1983, the defendants could not get compared the signatures of Jaspal Singh upon the written statement, power of attorney and his statement. It is also pleaded that the plaintiffs No.2 to 9 should not have been allowed to be transplanted from their position as defendants to that of plaintiffs. It is also pleaded that in fact Jaspal Singh became owner of the suit property along with other land as three pre-emption suits were decreed in his favour. During that litigation, Jaspal Singh had no money to spend and to deposit pre- emption money. Jaspal Singh was financed by the R.S.A.No. 3609 of 1998 (O&M) 6 defendants being their relative on the condition that the defendants will get ½ share of the pre-empted land. ½ share of the total pre-emption amount was deposited by the defendants and Jaspal Singh was only Benami owner of ½ portion of that land. It is denied that the plaintiffs No.2 to 9 were in possession of the land in dispute as tenants before execution of the sale deed. It is prayed that the suit of the plaintiffs be dismissed with costs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the judgment and decree dated 29.7.1983 passed in civil suit No.18/83 titled as Harbhajan Singh etc. vs. Jaspal Singh are illegal, null and void and not binding on the rights of the plaintiffs? OPP 2. Whether the sale deed executed on 5.6.1984 regarding the suit land is legal and binding on the rights of the defendants? OPP 2-A Whether the plaintiffs No.2 to 9 are the bonafide purchasers of the suit land for consideration from ostensible owner i.e. plaintiff No.1, if so to what effect? OPP 2-B Whether the jurisdiction of the civil Court is barred to entertain and try the present suit? OPD R.S.A.No. 3609 of 1998 (O&M) 7 2-C Whether the suit is time barred? OPD 2-D Whether the plaintiff No.1 was incompetent to sell the suit land to the plaintiffs No.2 to 9 and the sale deed in their favour was mere a paper transaction, as alleged? OPD 3. Whether the power of attorney in favour of Kidar Singh is forged and fake. If so, to what effect? OPD 4. Whether the judgment and decree dated 29.7.1983 are valid? OPD 5. Whether the plaint has not been verified, if so to what effect? OPD 6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, to what effect? OPD 7. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 8. Relief. ” Learned counsel for the appellants has argued that initially Jaspal Singh had filed the suit challenging the judgment and decree dated 29.7.1983 passed in civil suit No. 18/93. Thereafter, he got the suit dismissed as withdrawn and the defendants No. 4 to 10 were transposed as plaintiffs. Hence, the suit on behalf of the transposed plaintiffs was time barred. The plaintiffs could not R.S.A.No. 3609 of 1998 (O&M) 8 challenge the decree on the ground that it was not a registered one. The suit filed by the plaintiffs was not maintainable in the present form. Learned counsel for the respondents, on the other hand, has argued that the impugned decree was virtually a sale and hence it required registration. Since the suit had been initially filed by Jaspal Singh within the period of limitation and the plaintiffs No.2 to 8 had been transposed as plaintiffs, the suit on their behalf was also, thus, within the limitation period. The respondents were bona fide purchasers for consideration. Admittedly, Jaspal Singh was owner of land in dispute. He suffered a decree in favour of defendants Harbhajan Singh, Jaswant Singh and Gurbachan Singh, the present appellants so that they could help him in prosecuting his cases regarding pre-emption. This shows that the present appellants did not have any pre-existing right in the land owned by Jaspal Singh and a decree had been suffered by Jaspal Singh in their favour to enable Jaspal Singh to prosecute his cases regarding pre-emption. This means that virtually the consent decree was nothing but a sale transaction. The appellants provided financial aid to Jaspal Singh to fight his legal battle regarding pre-emption and in turn Jaspal Singh parted with the suit land. Since the said decree dated 29.7.1983 was virtually a sale deed and created rights in favour of the appellants regarding the suit land for the first time, it required compulsory registration. The R.S.A.No. 3609 of 1998 (O&M) 9 respondents were not a party to the consent decree and hence, could challenge the same on account of its non registration. Admittedly, the suit filed by Jaspal Singh was within limitation. However, Jaspal Singh got the suit dismissed as withdrawn qua himself on 29.9.1994. At that time the suit was fixed for defendants' evidence. Thereafter, defendants No. 4 to 10 were ordered to be transposed as plaintiffs and proceed with the case vide order dated 9.1.1995. Plaintiff No.9 was later ordered to be impleaded as a party on his application vide order dated 9.10.1995. In these circumstances, the suit of the plaintiffs can not be said to be time barred. Plaintiffs had filed the suit challenging the impugned judgment and decree dated 29.7.1983. No issue was claimed with regard to maintainability of the suit and hence, at this stage, the argument raised by learned counsel for the appellants regarding the suit was not maintainable in the present form is liable to be rejected. Even otherwise, plaintiffs No.2 to 9 got the actual possession of the suit land from Jaspal on the date the sale deed was executed in their favour but during the pendency of the suit, the possession was delivered to the defendants after the release of the land from attachment by Executive Magistrate. The possession of the plaintiffs is also established from the revenue record available on the file. As per Ex.DW 9/A, the possession of the land was given by Tehsildar to the defendants. In these circumstances, both the Courts below R.S.A.No. 3609 of 1998 (O&M) 10 rightly held that at the time of filing of the suit, plaintiffs were in possession of the suit land and the defendants got the possession of the suit land during the pendency of the suit and hence, the same could be ordered to be delivered back to the plaintiffs. Leaving aside the other arguments, the suit of the plaintiffs was liable to be decreed as the plaintiffs were bona fide purchasers of the suit land for consideration. The plaintiffs purchased the suit land vide sale deed dated 5.6.1984 from Jaspal Singh. The mutation with regard to impugned judgment and decree dated 29.7.1983 was sanctioned after the execution of the sale deed by Jaspal Singh in favour of plaintiffs No.2 to 9. In these circumstances, the plaintiffs could not have come to know about the impugned decree at the time of execution of the sale deed in their favour. Moreover, at that time Jaspal Singh was shown to be owner of the suit land in the revenue record. Hence, the Courts below rightly held that plaintiffs No.2 to 9 were bond fide purchasers for consideration and thus, the impugned decree dated 29.7.1983 was not binding on them. Learned counsel for the appellants, during the course of arguments, has cited case law in support of his arguments but the same failed to advance the case of the appellants as the said judgments were based on different facts. In the present case, the plaintiffs were bond fide purchasers for consideration and the decree suffered by Jaspal Singh was virtually a sale deed and required R.S.A.No. 3609 of 1998 (O&M) 11 compulsory registration and hence, the suit of the plaintiffs was rightly decreed by the Courts below. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 27 , 2009 anita