RSA No.1928 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1928 of 2008 (O&M) Date of decision: 13.1.2009 Smt. Chameli Devi and others ......Appellants Versus Sheona Devi and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Verma, Advocate for the appellants. * * * Rakesh Kumar Garg, J. CM No.5767-C of 2008 For the reasons recorded in the application,delay of 5 days in refiling the appeal is condoned. CM stands disposed of. RSA No.1928 of 2008 This is plaintiff's second appeal challenging the judgment and decrees of the Courts below dismissing her suit for possession of the land in dispute by way of ejectment of defendants as well as for removal/demolition of unauthorized structures and also for declaration to the effect that sale deed No.4535 dated 18.3.1987 executed by the plaintiff in favour of defendant No.1 was only for 4 marlas and not more than that and subsequently the sale of said land by defendant No.1 to defendant No.3 vide sale deed dated 3.6.1988 was illegal and recital of 5 marlas in said sale deed which has been incorporated fraudulently, is not binding upon the plaintiff, along with a consequential relief of permanent injunction restraining the defendants not to raise any further construction upon the suit land nor to alienate it in any way and also restraining defendant No.3 RSA No.1928 of 2008 (O&M) 2 not to occupy or encroach upon the said land in any manner. In brief, the case of the plaintiff as set out in the plaint is that he was co-owner in joint possession of 1/9th share of the Gair Mumkin land measuring 2 kanals 2 marlas consisting in khasra Nos.67//22/13(0-2), 640 (1-0), 657(1-0), of khewat No.572 khatoni No.898 situated within the revenue estate of village Dahola Tehsil and District Jind. The plaintiff had sold 4 marlas land for a sale consideration of Rs.4000/- to defendant No.1 out of land comprised in khasra No.640 (1-0), 657(1-0) in the year 1987 and after that the plaintiff got effected the partition of the joint khewat from the court of Assistant Collector, llnd Grade, Jind in which the suit land bearing khasra No.640/1(0-9) fell to his exclusive share but at the time of delivering the physical possession of the partitioned land, plaintiff came to know that defendant No.1 had encroached upon the land of the plaintiff and had raised construction on the 7 marlas of land while remaining 2 marlas was being used as street. The registered sale deed dated 18.3.1987 through which the plaintiff sold the land measuring 4 marlas to defendant No.1 reveals that plaintiff had sold 1/8th share of the land bearing khasra No.640(1-0), 657(1-0) though he was not having 1/8th share. In fact he was having 1/9th share and he sold the land measuring 5 marlas and on the basis of that sale deed, defendant No.1 cannot be considered as owner in possession of 5 marlas of land. Thus, defendant No.1 had got executed sale deed from the plaintiff more than his share and further defendant No.1 also sold 5 marls of land in favour of defendant No.3 vide registered sale deed dated 3.6.1998. Thus, sale deed executed by defendant No.1 in favour of defendant No.2 dated 3.6.1998 is illegal and void. Thus, the plaintiff by filing the present suit sought the decree of possession regarding the land measuring 5 marlas out of Khasra No.640/1 min from khewat No.572 khata No.898 with the further request for setting aside the sale RSA No.1928 of 2008 (O&M) 3 deed dated 18.3.1987 and 3.6.1988 by declaring the same as illegal and void. Defendants No.2 and 3 contested the suit by filing their joint written statement. Their stand was that the plaintiff was not in possession of any portion of the suit land and so he had no locus standi to file the present suit and his suit was not maintainable. The suit land being Gair Mumkin plot, the Assistant Collector, llnd Grade, had no jurisdiction to effect the partition of the suit land. Even the defendants were not made parties and so the order of partition passed by the Assistant Collector llnd Grade was not binding upon them. The plaintiff sold the suit land in favour of defendant No.1 through sale deed dated 18.3.1987 and also handed over the physical possession thereof to him. Defendant No.2 further sold the land to defendant No.3 through sale deed dated 3.6.1998 and so on the basis of the same, defendant No.3 had become owner in possession of the suit land, while defendant No.2 had purchased the share of Krishan etc. out of the joint khewat. Thus, the defendants had not occupied the suit land unauthorizedly rather the vendors handed over physical possession of the suit land and thereafter, defendant No.1 raised construction over the suit land, by incurring sufficient expenses. Thus, after purchase of the suit land, defendant No.3 after coming on the foot steps of defendant No.1 is to be considered as owner in possession of the suit land. In fact, it was the joint khewat and plaintiff alone cannot be considered owner in possession of 2 kanals 2 marlas of land. Even the plaintiff has failed to produce any record in that regard. So, the plaintiff was not entitled for the relief of possession against the defendants. In this way, defendants No.2 and 3 controverted the stand of the plaintiff taken in the plaint. Defendant No.1 adopted the written statement so filed by defendant Nos.2 and 3, vide statement dated 25.8.1999 suffered by his RSA No.1928 of 2008 (O&M) 4 counsel. After considering the evidence on record and hearing learned counsel for the parties, the trial Court held that plaintiff is neither owner nor in possession of the suit land and therefore, he is not entitled to the relief of possession. It was further held that sale deed executed by him in favour of defendant No.1 is illegal and the suit of the plaintiff was dismissed. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal which was also dismissed by the Additional District Judge, Jind vide impugned judgment and decree dated 23.10.2007. While dismissing the appeal, the Lower Appellate Court observed as under:- “Plaintiff has challenged the validity of the sale-deed dated 18.3.1987 and 3.6.1988. It is not the allegations of the plaintiff that he was not present at the time of the execution of the sale-deed or any fraud has been played with him by the vendees. Merely he has challenged that he was not owner of the land to the extent of 1/8 share in the joint khewat. So, according to him there was no question of transferring the suit land measuring 0 kanals 5 marlas. But I do not find any merit in this contention since it was the joint khewat in which plaintiff was having 1/9 share and it was about 5 marlas of land which he has already sold the same. Rather he had sold more than his share as such he was having no right to challenge the same or to claim further share in the same joint khewat by effecting any partition. Once he has already sold the land measuring 0 kanal 5 marlas more than his share. So, under such circumstances, there is no question of claiming his further right in the joint RSA No.1928 of 2008 (O&M) 5 khewat in which the suit land falls. Even it is not the stand of plaintiff that defendant No.1 has played any fraud upon him while there is no evidence that defendants have played any fraud or misrepresentation upon the plaintiff at the time of execution of the sale deed. While under the law plaintiff cannot challenge the sale deed except on the ground of fraud. So, sale deeds under challenge cannot be considered as illegal and void. As such, sale deeds under challenge are legal one, defendant No.1 after coming into the foot-steps of the plaintiff on the basis of sale deed dated 18.3.1987 has become owner in possession of the purchased land and it has got every right to sell the same in favour of defendant No.3. Thus, defendant No.3 on the basis of sale-deed dated 3.6.1998 after coming in the foot-steps of defendant No.1 is owner in possession of the disputed property with defendant No.2 who has also purchased his property from Krishan etc. Thus, it is proved that defendants No.2 and 3 are absolute owners of the so purchased property and plaintiff has no concern with the same. Thus, plaintiff has failed to prove his case for declaring the sale-deeds dated 18.3.1987 and 3.6.1988 as illegal and void and the learned lower Court has rightly decided this matter and has not committed any error in deciding the same. The suit of the plaintiff is not maintainable and plaintiff has no locus-standi to file the present suit. Even plaintiff has also not come with clean hands. Hence the findings of the learned lower Court RSA No.1928 of 2008 (O&M) 6 under all the issues are affirmed.” Still not satisfied, the plaintiff-appellants have filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently contended that from the document Ex.P-4 i.e. Sanad Taksim, it is crystal clear that the plaintiff-appellants are the owners of 1/9th share and after partition, 9 marlas land fell due in their exclusive ownership and as per demarcation report Ex.PW5/A, out of 9 marlas land, the defendants No.1 and 2 were in illegal possession of 5 marlas of land. However, both the Courts below have erred in not considering upon the said fact and therefore, the judgment and decrees of the Courts below are liable to be set aside as the following substantial questions of law arise in this appeal: “1. Whether the findings of both the Courts below are wrong, illegal, perverse and against the evidence on record? 2. Whether documents Ex.P-4 Sanad Batwara and Ex.PW5/A demarcation report are not binding upon the defendants?” I have heard learned counsel for the appellants. I find no merit in the contentions raised by the learned counsel for the appellants. Undisputedly, the appellants were having 1/9th share in the joint khewat measuring 2 kanals 2 marlas and it was about 5 marlas of land which the plaintiff had already sold vide sale deed dated 18.3.1987, rather he sold more than his share and as such he did not have any right to challenge the same or to claim further share in the same joint khewat by effecting any partition. Once the plaintiff had sold the land more than his share, under such circumstances, there was no question of claiming any further right of partition by him in the joint khewat in which the suit land RSA No.1928 of 2008 (O&M) 7 falls. Moreover, it is not the stand of the plaintiff that defendant No.1 had played any fraud upon him nor there is any evidence that defendants have played any fraud or made misrepresentation at the time of execution of the sale deed. Thus, the sale deed under challenge is legal. Defendant No.1 after coming into the foot steps of the plaintiff on the basis of sale deed dated 18.3.1987 had got every right to sell the same in favour of defendant No.3. Thus, defendant No.3 on the basis of sale deed dated 3.6.1988 is owner in possession of the disputed property with defendant No.2, who also purchased his property through Krishan Bhandari. The plaintiff has miserably failed to prove his case for declaring the sale deeds dated 18.3.1987 and 3.6.1988 as illegal and void. In my view, the Courts below have rightly recorded the findings in this respect. No substantial question of law arises. For the reasons recorded above, I find no merit in this appeal and the same is dismissed. January 13, 2009 (RAKESH KUMAR GARG) ps JUDGE