RSA No.2361 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2361 of 2008 (O&M) Date of Decision: August 21, 2009 Babita and another ...........Appellant Versus Ishwar Singh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Rakesh Nehra,Advocate for the appellants. ** Sabina, J. Plaintiff filed a suit for declaration and permanent injunction. The suit of the plaintiff was decreed by the Additional Civil Judge (Senior Division) Jhajjar vide judgment and decree dated 24.5.2005. The appeal filed by defendants was dismissed by the District Judge, Jhajjar vide judgment and decree dated 29.4.2008. Hence, the present appeal by the defendants. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under:- “ 2. The case of the plaintiff as emerging out from the plaint of his suit out of which this appeal has arisen, is that defendant No.1 was owner in possession of the agricultural land measuring 8 kanal being 160/431 share of total land measuring 21 kanal 11 marla comprised in khewat No.126 Khatoni No.182 Rect No.95 RSA No.2361 of 2008 (O&M) 2 Killa no.2/2 (6-0), 9/1 (7-11), 108 (8-0) ,as per jamabandi for the year 1990-91 situated in the revenue estate of village Yakubpur, Tehsil and Distt. Jhajjar (hereinafter called the land in dispute). He sold the land in dispute for a consideration of Rs.1,00,000/- to the plaintiff vide registered sale deed dated 12.5.97. Therefore, plaintiff became owner in possession of the land in dispute from the date of execution of the sale deed but defendant No.1 in collusion with the defendant No.2 suffered a consent decree in favour of the defendants No. 2 & 3 of the land in dispute in civil suit No.1385 of 1995 titled as Smt. Babita etc. vs. Bijender Singh. It is further the case of the plaintiff that decree dated 18.7.95 was not implemented in the revenue record upto 8.5.97. Actual physical possession of the land in dispute was also not handed over to defendants No. 2 & 3 by defendant No.1. The plaintiff came to know about the impugned judgment and decree on 1.6.97 when defendants No. 2 & 3 filed a civil suit against him challenging the sale deed dt. 12.5.97 executed in his favour by defendant No.1. All the defendants admitted in that suit was owner in possession of the land in dispute on the basis of the sale deed dt.12.5.97 and ultimately that suit was dismissed in default on 4.9.97. However, the names of defendants No.2 & 3 were illegally existing in the revenue record on the basis of mutation No. 2478 dt. 8.5.97 and on the basis of the wrong entries in the revenue record defendants starting to interfere in the peaceful possession of the plaintiff over the land in dispute. Therefore, the plaintiff felt the necessity to file this suit, praying a decree for RSA No.2361 of 2008 (O&M) 3 declaration to the effect that he is owner in possession of the land in dispute and that judgment and decree dt.18.7.95 passed in civil suit No.1385 of 1995 titled as Babita etc. Vs.Bijender Singh and mutation No.2478 dt. 8.5.1997 are illegal, null and void and not binding on his rights. The plaintiff also prayed for a decree for permanent injunction restraining the defendants from interfering in his peaceful possession over the land in dispute. 3. The defendants appeared and filed their written statement contesting the suit on the grounds that the land in dispute was ancestral property of defendants No. 1 and 3. Therefore, defendant No.1 was not exclusive owner in possession of the same, rather the property in dispute was jointly owned and possessed by the defendants; that defendant No.1 did not sale the land in dispute to the plaintiff; that it was intimated to the plaintiff by defendant No.2 regarding the ownership and possession of the land in dispute; that no consent decree was suffered by the defendant No.1 in favour of defendants No. 2 & 3; that defendant No.2 is the wife of defendant No.1,therefore, she was entitled for maintenance from him and in lieu of the maintenance she got the land in dispute through a court decree dt.18.7.95; that defendant No.3 is co-parcener and had his share in the land in dispute from his birth, therefore, decree dt.18.7.95 and the mutation No.2478 dt.8.5.97 were legal, valid and binding upon all concerned; that no compromise took place between the plaintiff and the defendants in the earlier suit; that the sale deed dt.12.5.97 was illegal, null and void and did not create any right in favour of the plaintiff in the RSA No.2361 of 2008 (O&M) 4 land in dispute; that plaintiff has no cause of action and locus standi to file the suit; that his suit was not maintainable in the present form; that the plaintiff was estopped from filing the suit by his act and conduct; that the suit was barred by limitation and was liable to be dismissed with special costs under Section 35A of C.P.C. ” On the pleadings of the parties, the following issues were framed:- “1. What the defendant No.1 was owner in possession of the agricultural land mentioned in para no.10 of the plaint and now the plaintiff has purchased the said land from defendant for sale consideration of Rs.100000 on 12.5.97?OPP 2. Whether a consent decree has been suffered by defendant No.1 in collusion of defendants No. 1 and 2 in civil suit No.1387 of 1995 on 18.7.05, if so its effect?OPP 3. Whether the plaintiff has no locus standi to file the present suit?OPD 4. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the plaintiff has estopped from filing the present suit at own act and conduct?OPD 5. Whether the suit of the plaintiff is time barred ?OPD 6. Whether the defendants are entitled for special cost under Section 35-A CPC?OPD 7. Relief..” After hearing the learned counsel for the appellant, I am of the RSA No.2361 of 2008 (O&M) 5 opinion that the instant appeal is devoid of any merits. Plaintiff had filed a suit for declaration that he was owner in possession of 8 kanals of land out of the suit land 21 kanals 11 marlas on the basis of sale dated 12.5.1997 (Exhibit P3) executed by Bijender Singh in his favour for a consideration of Rs.1,00,000/-. The case of the defendants, on the other hand, is that Bijender Singh had suffered a decree in their favour on 18.7.1995 and, thereafter, the mutation was sanctioned in favour of the defendants on 8.5.1997 on the basis of the said decree passed in Civil Suit No. 1385 of 1995. Admittedly, Bijender Singh was owner to the extent of half share of the land measuring 21 kanals 11 marlas. He executed the sale deed with regard to 8 kanals of land in favour of the plaintiff on 12.5.1997 (Exhibit P3). Before the execution of the sale deed, an agreement to sale was executed between the parties on 8.5.1997 (Exhibit P4). Plaintiff could have made inquiry only from the revenue record and before the execution of the agreement to sell (Exhibit P4), the land was reflected in the revenue record to be owned by the vendor-Bijender Singh. The mutation on the basis of decree was sanctioned in favour of the defendants on 8.5.1997. Apparently, the plaintiff had entered into an agreement to sell on 8.5.1997 and before that he must have made an inquiry from the revenue record with regard to the ownership of the vendor. Hence, in the facts and circumstances of the case, it cannot be said that the plaintiff was not a bona fide purchaser. Both the Courts below, after appreciating the evidence on record, have given a finding of fact that the plaintiff was a bona fide purchaser and, consequently, the decree dated 18.7.1995 had no bearing on RSA No.2361 of 2008 (O&M) 6 the rights of the plaintiff accrued to him on the basis of sale deed executed in his favour. The said finding of fact arrived by the Courts below calls for no interference by this Court in appeal. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 21, 2009 arya