R.S.A. No. 1651 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1651 of 2011 Date of decision:-23.12.2011 Amar Chand Tamra ...Appellant Versus Smt. Sawaran Kanta Balgan and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Amit Jain, Advocate for the appellant. RITU BAHRI J. This regular second appeal is against the judgment and decree dated 09.10.2010 passed by the Additional District Judge, Faridabad whereby the appeal against the judgment and decree dated 25.1.007 passed by the Additional Civil Judge (Senior Division), Faridabad, has been partly allowed. Brief facts of the case are that defendant No.1 vide agreement dated 11.4.1966 had agreed to sell plot bearing No.C-2 measuring 1000 square yards situated in Model Town, Faridabad. Subsequently, due to change in the layout plan the area of the plot in dispute was increased from 1000 square yards to 1667.5 square yards. Defendant No.1 did not execute the sale deed. The plaintiff filed a suit No.269 of 1966, which was dismissed R.S.A. No. 1651 of 2011 -2- vide judgment dated 23.6.1968. The appeal was accepted vide judgment dated 3.11.1978. The defendant Nos.1 and 2 raised objections to the judgment and decree dated 3.11.1978 which was dismissed on 10.9.1981. During the pendency of the case defendant No.1 transferred the said plot in favour of various persons. On 08.4.1994 defendant No.3 appointed defendant No.4 as power of attorney. Thereafter, defendant No.4 appointed defendant No.5 as attorney on 05.9.1994. Defendant No.3 through defendant No.5 sold 1/3rd share out of the plot in dispute in favour of defendant Nos.6 and 7 vide registered sale deed 24.3.1995 for a sale consideration of Rs.1,95,000/- and further 1/3rd share out of the plot in dispute in favour of defendant Nos.6 and 7 for a sale consideration of Rs.1,95,000/- vide registered sale deed dated 08.5.1995 and further defendant No.3 through defendant No.5 has sold 1/3rd share of the plot in dispute in favour of defendant Nos.6 and 7 vide sale deed dated 12.5.1995 registered on 22.5.1995 for Rs.1,96,000/-. It is stated that the defendant No.7 without any right or justification sold ½ share in favour of defendant No.6 vide sale deed dated 26.2.1996 for a sale consideration of Rs.4,00,000/-. The above sale transactions are void ab-initio, non-est and illegal. On notice, defendants have filed the written statement. Defendant No.2 took the preliminary issues about the maintainability of the suit, cause of action and grant of limitation. On merits, defendant No.1 denied that he did not remember the R.S.A. No. 1651 of 2011 -3- detail of the cases decided in the year 1968 and 1978. The plaintiff never paid any consideration amount to the defendants upto the decision of the aforesaid cases. Defendant Nos.3 and 4 alleged that they had purchased the plot in dispute directly from defendant No.2-M/s DLF Universal Electrical vide sale deed dated 01.4.1981. He is a bona fide purchaser. The plaintiff was neither owner nor in possession of the plot in dispute at any relevant time. The defendant No.3 remained owner in possession of the plot in dispute. Defendant No.5 vide separate written statement alleging that defendant No.3 disclosing herself to absolute owner through power of attorney and defendant No.4 has executed the power of attorney in favour of defendant No.5 for a sale consideration of Rs.6,67,000/- through cash as well as through pay order. Defendant No.4 executed the receipt in token for having received the said money. Defendant No.4 being authorized General Power of Attorney subsequently sold and executed the sale deed of the portion measuring 555 square yards vide sale deed dated 8.5.1995. He sold the portion measuring 557.5 square yards vide sale deed dated 12.5.1995 in favour of Smt. Swaran Kanta and Shri Satish Chand. Defendant No.2 alleged that the plot in question was developed by defendant No.2 and initially allotted to Shri P.D. Jain, defendant No.1 on his request, the plot was transferred in the name of his R.S.A. No. 1651 of 2011 -4- nominee Shri Kailash Chander Sachdeva and ultimately the plot was purchased by Mrs. L. Bhatia on 7.1.1981. The plaintiff never approached the answering respondent for paying the remaining sale consideration and transfer charges of the plot in its name nor the plaintiff ever disclosed that the sale deed had already been executed in her favour. Defendant Nos.6 and 7 filed written statement and took preliminary objection about the maintainability, cause of action, mis-joinder of parties and jurisdiction etc. On merits, it was alleged that the agreement to sell dated 11.4.1966 allegedly entered into between plaintiff and defendant No.1 was illegal and without the authority as he was not competent to transfer the same as he had not paid the consideration price of the plot in question. The plaintiff was neither owner nor in possession of the suit property. Defendant No.6 is the exclusive owner in possession of the suit property and has raised a boundary well thereon and has constructed a room. The earlier litigation between the plaintiff and defendant No.1 is not binding upon the rights of defendant No.6. From the pleadings of the parties, following issues were framed on 08.2.2005:- “1. Whether the plaintiff has become owner in possession of the suit property by virtue of sale deed dated 21.10.1981 as alleged? OPP 2. Whether during the pendency of litigation the alleged sale deed got transferred by defendant No.1 from defendant No.2 in favour of defendant No.3 by registered sale deed dated 31.3.1981 R.S.A. No. 1651 of 2011 -5- registered on 1.4.1981 and subsequent Power of Attorney executed on 1.4.1981 and subsequent Power of Attorney executed by defendant No.3 in favour of defendant No.4 subsequent special power of attorney executed by defendant No.4 in favour of defendant No.5 dated 5.9.1993 are illegal without power and justification?OPP 3. Whether the alleged three sale deeds executed dated 24.3.1995, 8.5.1995 and 12.5.1995 executed by defendant No.5 in favour of defendant No.7 and subsequent sale deed executed by defendant No.7 qua his alleged half share in the plot in dispute dated 25.2.1996 are illegal, null void, ab-initio, non-est, nullity and hit by the principle of lis pendence and does not effect the right, title of the plaintiff in suit property? OPD 4. Some unauthorized construction is alleged to have been effected by defendant No.6 immediately before the institution of suit, in that eventuality if the court comes to the conclusion that it amounts to dispossession of plaintiff then a decree for possession/demolition and removal of said alleged construction and electric connection be passed in favour of the plaintiff? OPD 5. Whether suit is not maintainable? OPD 6. Whether suit is not properly valued for purpose of court fees and jurisdiction? OPD 7. Whether suit is barred by time? OPD 8. Whether suit is barred under Section 47, under order 2 Rule 2 CPC? OPD 9. Whether the plaintiff is estopped from filing the R.S.A. No. 1651 of 2011 -6- suit? OPD 10. Relief.” The trial Court has returned the findings on issue Nos.1 to 4 in favour of plaintiff. The trial Court after going through the evidence came to the conclusion that as per the decree the symbolic possession was given to the plaintiff. As held in Loharu Ram versus Keemtu and others 2001(2) SLJ 1492 the symbolic possession amounts to actual delivery of possession. The suit filed by the plaintiff was dismissed on 28.6.1968 and the appeal was accepted vide judgment dated 3.11.1978 and the defendants were directed to execute the sale deed in accordance with the terms of the judgment. In execution proceedings the objection raised by the judgment debtor were dismissed on 10.9.1981 and ultimately registered sale deed was executed in favour of the plaintiff on behalf of defendant Nos.1 and 2 through the process of the court on 21.10.1981 and possession of the plot in dispute was delivered to him. The delivery of possession is proved by the decree (Ex.PW6/1). The subsequent sales made during the pendency of the suit were hit by doctrine of lis pendence. The possession of defendant No.6 if any, was to be treated as illegal and trespasser cannot be allowed to dispossess the plaintiff on the basis of intact judgment and decree passed in favour of the plaintiff. Issue Nos.1 to 4 were decided in favour of the plaintiff. In the facts of the present case the symbolic R.S.A. No. 1651 of 2011 -7- possession was delivered to the plaintiff. The suit for declaration simpliciter was maintainable when plaintiff was held to be in possession. The issue was decided against the defendants. On issue No.6, the trial Court returned the findings that the suit was held to be properly valued for the purpose of this court and jurisdiction. Issue No.5 was decided in favour of plaintiff. As regards issue Nos.7 to 9 are concerned it was held that the suit was not barred under Section 47 CPC and under Order 2 Rule 2 CPC against the defendants. The suit of the plaintiff was decreed and the sale transactions dated 31.3.1981 registered on 1.4.1981, Power of attorneys dated 8.4.1994 and 9.5.1994, sale deeds dated 24.3.1995, 8,5,1995 and 12.5.1995 registered on 22.5.1995 and 26.2.1996 are illegal and void and the plaintiffs continued to be owner in possession of the suit land. This judgment was challenged by way of appeal by defendant No.6-Swaran Kanta and No.7 Satish Anand. The appellants took the plea that they are bona fide purchasers after due verification, the facts in dispute are that P.D. Jain defendant No.1 was the original purchaser of the plot C-2 from DLF. No conveyance deed was executed by P.D.Jain in his favour. Subsequently, he transferred the plot in the name of his nominee Kailash Chander Sachdeva. The transfer in favour of Lora Bhatia was hit by principle of lis pendence. The appellant alleged that the judgment (Ex.P2) was regarding the plot of land measuring 1000 square yards and the property in question after change in R.S.A. No. 1651 of 2011 -8- lay-out plan came to 1667.5 square yards. The plaintiff has failed to prove the identity of the property. This argument has been rejected by the Appellate Court by observing that initially the suit property was of 1000 square yards, which was sold in the year 1966 by defendant No.1 for Rs.19,000/-. Subsequently, the suit property measuring 1667.5 square yards was sold by defendant No.2 to defendant No.3 in the year 1981 for a consideration of Rs.23,345/-. The only difference came in the area of plot No.C-2 after the lay-out plan. As per the sale deed (Ex.DW6/1) executed before the Executing Court on 21.10.1991. The plaintiff became owner of the plot of 1000 square yards. He has no right to retain the remaining 667.5 square yards, which was added after the change of lay out plan. Partly allowing the appeal of the appellant, the lower Appellate Court has held that the plaintiff is entitled to get 1000 square yards regarding the sale deed (Ex.DW6/1), which was executed on behalf of defendant Nos.1 and 2. The additional area of 667.5 wquare yards of land is still owned and possessed by DLF i.e. defendant No.2. The DLF Universal was competent to transfer this area of Lora Bhatia-defendant No.3, who is the vender of the appellant- Smt. Sawaran Kanta. The appellant cannot denied her right over 667.5 square yards. The sale deed dated 31.3.1981 registered on 1.4.1981 in favour of Lora Bhatia is set aside to the extent of 1000 square yards. The appellant Sawaran Kanta who had purchased the land would be deemed to be co-owner with the R.S.A. No. 1651 of 2011 -9- plaintiff to the extent of 667.5 square yards. The plaintiff would remain the owner in possession to the extent of 1000 square yards in the plot in dispute. With the above observations the appeal was partly allowed vide judgment dated 09.10.2010. Mr. Amit Jain, counsel for the appellant has vehemently argued that in the year 1966 the plaintiff had purchased the plot C-2 vide agreement dated 11.4.1966 measuring 1000 square yards in model Town, Faridabad. This sale has been confirmed and executed in the Executing Court vide Ex.DW6/1. The plaintiff has fought a litigation ever since 1966. If there is any change in the size of the plot by way of change in lay-out plan, the plaintiff is still entitle to the entire plot C-2, which was subject matter of sale in the year 1966. The respondents were all hit by the principle of lis pendence and have no right to retain 667.5 square yards of plot, which they had purchased during the pendency of the suit of the plaintiff. After going through the entire file I am of the considered view that the initial agreement to sell of plot No.C-2 was of 1000 square yards. Subsequently in the change in lay-out plan, the size of the plot increased to 1667.5 square yards. The plaintiff had paid the sale consideration for 1000 square yards. The defendant No.3 had sold the plot 1667.5 square yards to Loar Bhatia for a sale consideration of Rs.23,345/-. There was a marginal increase in the price of the plot because the area of the R.S.A. No. 1651 of 2011 -10- plot was increased. DLF was not competent to make the sale of plot as on that date vide judgment and decree dated 3.11.1978 the plaintiff was held entitle to possession of plot C-2 measuring 1000 square yards. In all fairness the Appellate Court has set aside the sale deed dated 31.3.1981 registered on 1.4.1981 in favour of Lora Bhatia to the extent of 1000 square yards. It is held that the remaining area to the extent of 667.5 square yards owned and possessed by DLF i.e. defendant No.2 and defendant No.2 was competent to transfer the said area to Lora Bhatia, who subsequently sold the suit land to Sawaran Kanta. Since the decree in favour of the plaintiff was to the extent of 1000 square yards of plot C-2, there is no error on facts upon which this Court requires to interfere in the findings recorded by the Appellate Court. There is no question of law much less substantial question of law arises for adjudication by this Court. The Regular Second Appeal is dismissed. 23.12.2011 ( RITU BAHRI ) Vijay Asija JUDGE