RSA No.2215 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos.6623-C & 6624-C of 2009 & RSA No.2215 of 2009 Date of Decision: 28.05.2009 Rajesh ..Appellant Vs. Ram Kumar & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arvind Singh, Advocate, for the appellant. --- Vinod K.Sharma,J. (oral) This regular second appeal is directed against the judgment and decree dated 10.4.2009 passed by the learned courts below vide which suit filed by the plaintiff/respondent for possession stands partly decreed with costs. Defendants No.1 and 2 have been directed to hand over vacant possession of disputed house to the plaintiff/respondent, within a period of 2 months. RSA No.2215 of 2009 2 In appeal, findings recorded by the learned trial court have been affirmed. The plaintiff/respondent filed a suit for possession of the disputed house, on the plea that plaintiff/respondent was owner in possession of the property in dispute, in pursuance to two sale deeds dated 6.10.1997. Sale deeds were executed by defendants No.3 and 4 who had one half share each in the house in question. It was not in dispute that the property was owned by one Shiv Kumar, father of defendants No.3 and 4. After his death the property was inherited by Smt.Sarbati, his widow and defendants No.3 and 4, daughters in equal shares i.e. 1/3rd share each. Smt.Sarbati died on 28.3.1995 leaving behind defendants No.3 and 4 as legal heirs, who sold the property to the plaintiff/respondent. It was pleaded that defendants No.1 and 2 hatched conspiracy to enter in possession of the house forcibly, and that the sale deeds set up by appellants were forged. The case further set up was that during the absence of plaintiff, defendant No.1 had entered into possession on the basis of sale deed dated 1.6.1998. The plaintiff challenged the sale deed to be null and void, and that it did not confer any title. In defence, plea raised by defendants No.1 and 2 was that Will dated 8.2.1995 was executed by Smt. Sarbati in favour of defendant No.1 and that under the Will defendant No.1 became owner of the property in dispute. The suit filed by the plaintiff/respondent was not maintainable. It was also pleaded that defendants No.3 and 4 being married daughters were not entitled to inherit the property. RSA No.2215 of 2009 3 Defendants No. 3 and 4 did not contest the suit. On appreciation of evidence the learned courts below have recorded concurrent findings of fact, that the plaintiff/respondent became owner in possession of the disputed property, pursuant to the purchase. The learned courts below also held that the sale deed dated 1.6.1998 set up by defendants No.1 and 2 was illegal, null and void. Mr.Arvind Singh, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the suit filed by the plaintiff in collusion with co-defendants could be decreed, when in the earlier litigation the Will in question was admitted by the parties? 2. Whether the appellant being bona fide purchaser was entitled to protection under transfer of Property Act? 3. Whether the Will dated 8.2.1995 executed by Smt.Sarbati in favour of defendants No.1, 3 and 4 stood proved? In support of the substantial questions of law, learned counsel for the appellant contended that prior to the filing of the present suit, a suit was filed by the plaintiff at Delhi, where the factum of Will was admitted and was also incorporated in the revenue record. Learned counsel for the appellant placed reliance on the RSA No.2215 of 2009 4 judgment of this court in the case of Smt. Dhan Kaur Vs. Major Singh 1994 (2) PLR 745 to contend that the admission made could not be withdrawn. Therefore, on the basis of admission made in the previous litigation the Will stood proved. The plea raised by the learned counsel for the appellant cannot be accepted. It is not in dispute that the suit filed in Delhi was not adjudicated on merit, and was returned for want of jurisdiction. In the suit the claim was set up by defendant/appellant on the basis of Will, the Will was not produced in court nor proved as per Section 63 of the Succession Act. The learned courts below rightly held that the defendant-appellant has failed to prove the Will, therefore, he could not draw title to property on the basis of sale deed said to have been executed in his favour. Plea of bona fide purchaser was also not accepted, as it was neither pleaded nor proved that true owner had represented the vendor of the defendant to be ostensible owner, to attract the plea of bona fide purchase. Merely because defendants No. 3 and 4 failed to contest the case, could not be a ground to hold that there was collusion. Once the plaintiff/respondent was able to prove that he was owner in pursuance to the sale deed in his favour from true owner, he was entitled to possession of the property. The findings recorded by the learned courts below, therefore, cannot be said to be the outcome of misreading or misconstruing evidence, nor can the appellant be said to be the bona fide purchaser for consideration. The substantial questions of law raised are, therefore, RSA No.2215 of 2009 5 answered against the appellant. The appeal is accordingly ordered to be dismissed in limine. 28.05.2009 (Vinod K.Sharma) rp Judge