RSA No. 2492 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2492 of 2001 Date of decision 27 .04.2011. Malkiat Singh ...... Appellant. versus Smt.Kaushalya Devi and another ...... Respondents. CORAM : HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellant. Mr. Vivek Suri, Advocate for the respondent No.1. Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gehlawat, Advocate for respondent No.2. K.C.PURI, J. This is regular second appeal directed by appellant impugning the judgment and decree dated 27.11.2000 passed by learned Additional District Judge, Fatehabad, who dismissed the appeal preferred by the defendant/appellant against the judgment and decree dated 27.8.1997 passed by the trial Court vide which the suit of plaintiff was decreed. Briefly the facts gathered from the record are that Balwant Singh was owner of the suit property, who died in the year 1967 and was RSA No. 2492 of 2001 2 survived by plaintiff as widow, defendant No.2 as son and one daughter named Kartar Kaur. Defendant No.2 and Kartar Kaur were born from first wife of Balwant Singh. Plaintiff inherited the suit land after death of Balwant Singh along with defendant No.2 and Kartar Kaur. Defendant No.2 and other relations started misbehaving with plaintiff which forced her to second marriage with one Mala son of Harsukh Dass of Dabwali and has been living with said Mala Ram for the last 7/8 years. It has been further submitted that prior to her shifting to Dabwali defendant No.1 has been cultivating the suit land as Kirinda of owners and she used to collect her share in the crop from him both the defendants knew that plaintiff was alive and living at Dabwali. Defendant No.1 in collusion with revenue patwari and one Teja Singh, Lamberdar got proceeding No.45 entered in the revenue record on 6.10.1979 showing plaintiff to be dead and thereafter got mutation sanctioned in his favour on 8.10.1979. Defendant No.2 after getting the suit land mutated in his favour, in collusion with defendant No.1, sold the suit land to defendant No.1 showing a consideration of Rs.5000/- out of which a sum of Rs.3000/- was shown to have been received much before execution of sale deed, from which it was evident that defendant No.2 was aware of the fact that plaintiff was alive and on 3.11.1982 and by impersonating some other lady to be plaintiff got her other land sold in favour of Kasturi Devi wife of defendant No.2 and got registered sale deed on 4.11.1982. Therefore, defendant No.2 admitted atleast 4.11.1982 that the plaintiff was alive. The sale deed was challenged by the plaintiff by way of Civil Suit, which stood decreed. Thereafter, again defendant No.2 filed another suit bearing No.232 of 1986 titled Karamjit Singh versus Smt. RSA No. 2492 of 2001 3 Kaushalya Devi on 24.10.1986 which further showed that defendants were aware that plaintiff was alive till the year 1986. Defendant No.1, who has been cultivating the suit land as Krinda, 7/8 years before the filing of the suit and from whom plaintiff has been collecting her share was also well aware that plaintiff was alive. Therefore, defendants on the basis of proceeding No.45 showing plaintiff to be dead and getting the sale deed dated 13.11.1979 executed was clearly misrepresentation and an act of fraud and nonest and was liable to be set aside. On notice, defendant No.1 contested the suit and filed written statement raising preliminary objection regarding estoppel, locus standi, defendant No.1 being bona fide purchaser with consideration and without notice from ostensible owner and plaintiff and defendant No.2 having colluded with each other. On merits, it was denied that defendant No.1 cultivated the suit land as Kirinda or in any capacity before sale deed in his favour. The answering defendant has never seen the plaintiff in village Aherwan, therefore, she has no concern with the suit land. The entire story has been submitted to be fabricated at the instance of defendant No.2. It has further been submitted that defendant No.1 purchased suit land after making enquiries and verifying from the revenue record and on payment of full consideration and was, therefore, bona fide purchaser for consideration. No notice from ostensible owner was issued. There is no fraud with the plaintiff nor defendant No.1 was a party to the fraud, if any, committed by defendant No.2. Defendant No.1 was not aware of any proceedings between the plaintiff and defendant No.2 and defendant No.1 purchased the RSA No. 2492 of 2001 4 suit land after verifying the title of defendant No.2 from revenue records. The sanction of mutation dated 29.2.1980 on the basis of sale deed dated 13.11.1979 in his favour has been defended. Defendant No.2 initially proceeded ex-parte but later on filed application for setting aside ex-parte proceedings, which was dismissed by the trial Court and affirmed by this Court. Pleadings of the parties give arise to the following issues :- 1. Whether the report No.45 dated 6.10.1979 and Mutation No.497 sanctioned on 8.10.79/18.10.1979 and subsequent mutation with regard to the land in dispute are wrong, illegal, null and void and not binding upon the rights of the plaintiff ? OPP 2. Whether the sale deed No.3393 registered on 13.11.1979 was not and mutation No.505 sanctioned on 29.2.1980 with regard to the land in dispute in favour of defendant No.1 are wrong, illegal null and void and not binding upon the plaintiff on the grounds taken in the plaint ?OPP. 3. Whether the plaintiff is entitled to a decree for possession of land in dispute on the basis of title ?OPP. 4. Whether the plaintiff is estopped from filing the suit by her act and conduct ?OPD 5. Whether the suit is time barred ? OPD 6. Whether the plaintiff has no locus standi to file and maintain the suit ?OPD. 7. Whether the defendant No.1 is a bonafide purchaser of the land in dispute and for consideration, if so its effect ?OPD 8. Whether the suit is false, frivolous and has been filed by the plaintiff at the instance of defendant No.2 ?OPD. 9. Whether the suit is false, frivolous and the defendants are entitled to special costs ?OPD. 10.Relief. RSA No. 2492 of 2001 5 The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court decreed the suit of the plaintiff with costs vide judgment and decree dated 27.8.1997. Feeling dissatisfied with the judgment and decree dated 27.8.1997, the defendant preferred an appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Fatehabad vide judgment dated 27.11.2000. Still feeling dissatisfied with the above judgments and decree passed by both the Courts below, defendant-appellant has preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant has submitted that the following substantial questions of law have arisen in the present appeal :- 1. Whether there is misreading and misinterpreting the evidence on the file ? 2. Whether the appellant is a bona fide purchaser for valuable consideration in respect of the suit property? To support this contention, learned counsel for the appellant has relied upon authorities Nazar Singh vs. Nand Lal 1992 PLJ 175 and Jagsir Singh and another vs. Punjab Kaur & Others 1989 Civil Court Cases 347. Learned counsel for the respondent has supported the judgments of both the Courts below and prayed for dismissal of the appeal. RSA No. 2492 of 2001 6 I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. It is settled law that the second appeal lies only if any substantial question of law has arisen. The learned counsel for the appellant although has submitted that the trial Court has misread and misinterpreted the evidence on the file but no pointed attention towards any evidence or any document has been drawn by the learned counsel for the appellant. The facts of the present case are crystal clear that plaintiff admittedly inherited the property. Karamjeet Singh defendant showing Kaushalya Devi plaintiff has died got the mutation sanctioned in his favour. The appellant alleged to have purchased the property from Karamjeet Singh. Karamjit Singh himself was not the owner of the property and as such he was not competent to execute any sale deed in favour of the appellant. There is concurrent finding of fact recorded by both the courts below that plaintiff is the owner of the suit property and Karamjeet Singh by playing fraud got the mutation of inheritance of Kaushalya Devi sanctioned in his favour, although she is alive. The said sale deed is in fact result of fraud and the appellant cannot be taken as bona fide purchasers. There is concurrent finding of both the Courts below which does not call for interference. In case, the appellant has taken little care to find out whether the plaintiff is alive or not in that case he would have come to know that she is still alive and mutation of her inheritance is result of fraud. No Court can uphold the fraud committed by the party. The appellant is a party to the said fraud and as such cannot be RSA No. 2492 of 2001 7 said to be bona fide purchaser. In in view of the above discussion, the appeal is without any merit and the same stands dismissed with costs. Decree be drawn. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 27, 2011 sv