R.S.A.No. 3794 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3794 of 2009 (O&M) Date of decision: 23.10.2009 Satbir Singh ......Appellant Versus Jugbir Singh @ Jaibir Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Shailendra Jain, Advocate, for the appellant. **** SABINA, J. Plaintiff Jugbir Singh @ Jaibir Singh filed a suit for declaration, injunction and possession which was decreed by the Civil Judge (Jr.Divn.), Gurgaon vide judgment and decree dated 29.8.2007. In appeal, filed by defendant No.2, the said judgment and decree were upheld by the Additional District Judge, Gurgaon vide judgment and decree dated 15.11.2007. Hence, the present appeal by the defendant No.2. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 3794 of 2009 (O&M) 2 Court in para Nos. 2 to 7 of its judgment, are as under:- ““2. Briefly stated the facts of the present case are that plaintiff is owner of the strip of land of size 13 x 25' measuring approximately 36 square yards shown in red colour and marked by letters ABCD in the site plan annexure A which is forming part and parcel of khasra No. 2923/3, situated within the residential colony of Laxman Vihar Phase-II, Gurgaon (hereinafter called as suit property) and which is bounded as under:- East: Land of plaintiff illegally encroached upon by Shri Khem Chand in collusion with defendant No.2. West: Land of the plaintiff illegally encroached upon by Ravinder etc. in collusion with present defendant No.2. North: Land of Khasra No. 2923/2 owned by the defendant No.2, who sold the same to the defendant No. 1. South: Land of the plaintiff forming part of Khasra No. 2923/3 being used as rasta of 18' wide and thereafter other land of the plaintiff. 3. Plaintiff further submitted that he became the owner of the above said red strip of land mentioned in para No.1 of the plaint along with other adjoining land shown in R.S.A.No. 3794 of 2009 (O&M) 3 yellow colour towards the East, West and South and same forming part of Khasra No.2923/3 which was received by the plaintiff by way of family partition in civil suit No.126/95 titled as Baljit Singh and others vs. Jugbir Singh etc. decided on 4.12.1995 by the court of Shri R.K.Sharma, the then Addl.Senior Sub Judge Gurgaon and the mutation of the said decree dated 4.12.1995 was duly incorporated in the revenue records vide mutation No.18408 sanctioned on 20.3.1996. The said land bearing khasra No.2923 along with the other land was the ancestral land of the plaintiff, defendant No.2 and another brother namely Baljit Singh. The plaintiff reserved the strip of size 13' x 214' shown in yellow and red colour in the site plan for commercial purpose. Plaintiff further mentioned that the suit land mentioned in para No.1 of the plaint forms part and parcel of khasra No.2923/3 belonging to the plaintiff was also established in the demarcation carried out by Shri Gian chand Kanungo Gurgaon vide his report dated 19.5.1999 who was appointed as LC on the application of the plaintiff. Plaintiff further submitted that defendant No.2 out of his malafide and dishonesty sold away the strip of land mentioned in para No.1 of the plaint to the defendant No.1 through registered sale R.S.A.No. 3794 of 2009 (O&M) 4 deed vasika No.6103 dated 5.8.1997 along with other land shown in red colour towards the North of the suit land at the rate of Rs.1,000/- per sq.yard and the said sale deed dated 31.7.1997 qua the suit land mentioned in para No.1 of the plaint is illegal, null and void and nonest and not binding upon the plaintiff. Plaintiff further submitted that defendant No.1 wants to raise construction over the said portion despite the fact that he has no right, title and interest. Plaintiff further submitted that defendant No.1 started digging foundation for raising compound wall over the suit land. Plaintiff further submitted that he has already challenged the sale deeds pertaining to the strip of land through separate suits already pending in the different courts apart from the initial suit Jugbir v. Satbir instituted by the plaintiff. Plaintiff has prayed that a decree for declaration be passed to the effect that the plaintiff is the owner of the suit land mentioned in para No.1 of the plaint and the defendants have no right, title or interest in the same and that the sale deed dated 31.7.1997 registered on 5.8.1997 vide vasika No.6103 qua the suit land executed by defendant No.2 in favour of defendant No.1 is wrong, illegal, null and void and not binding upon the plaintiff and also that same does R.S.A.No. 3794 of 2009 (O&M) 5 not confer any right, title or interest of the defendant No.1. 4. . Notices were served upon the defendants. Defendants appeared and filed the written statement. Defendant No.2 has primarily objected suit on the grounds of the maintainability, cause of action, being estopped from filing the suit by his own act, conduct, omission, commission, locus standi; suit being barred under Section 23 CPC as well as under Order 2 rule 2 CPC and that plaintiff has not come to the court with clean hands and concealed the true and material facts. 5. While replying on merits the defendant No.2 has denied that plaintiff is owner in possession of the property in question. It is also denied that the land in question forms part of Khasra No.2923/3. It is also denied that the suit land was ever allotted to the plaintiff in the alleged family settlement. Defendant No.2 further submitted that defendant No.2 is in legal possession of the land in question by way of sale deed. 6. Defendant No.1 has also filed the written statement primarily objecting the suit being bad for no cause of action; maintainability; suit being bad for non- impleading of necessary parties and locus standi. 7. While replying on merits defendant No.1 has R.S.A.No. 3794 of 2009 (O&M) 6 submitted that he has purchased the land in khasra No.2923/2, from defendant No.2 being absolute owner of the land in question and the defendant No.2 is legally competent to alienate his own property in favour of anybody. Defendant No.1 has submitted that he has purchased the land in the year 1997 and since then residing thereon by way of construction of her residential house bounded by four walls. Defendant No.1 accordingly has prayed for dismissal of the suit.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of strip of land 13' x 25' mentioned in para no. 1 of the plaint. If so to what effect? OPP 2. Whether the sale deed executed by defendant no. 2 in favour of defendant no. 1 qua the suit land mentioned in para No.1 of the plaint is illegal, null and void and not binding upon the plaintiff as alleged?OPP 3. Whether the defendant No.1 encroaching upon the land of the plaintiff in the guise of impugned decree as alleged?OPP 4. Whether the suit land is part and parcel of Khasra No. 2923/3 or not? OPP 5. Whether the plaintiff has no locus standi to file R.S.A.No. 3794 of 2009 (O&M) 7 the suit?OPD 6. Whether the suit is not maintainable?OPD 7. Whether the plaintiff has no cause of action to file the suit?OPD 8. Whether the suit is barred under order 2 rule 2 and order 23 CPC as alleged? OPD 9. Whether the plaintiff is estopped from filing the present suit ?OPD 10. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the plaintiff had filed a suit for declaration that he was absolute owner of the suit property. Learned Appellate Court, in para Nos. 17 to 21, in the impugned judgment held as under:- 17. Now the moot question in this case is as to whether the appellant Satbir has no right to alienate the land marked by letters ABCD as shown in red colour in site plan Ex.PW7/1. No doubt, on behalf of appellant, an argument has been raised that there is difference in area as per Annexure-A site plan Ex.PW7/8 and mutation Ex.PW7/2 and as per report Ex.PW4/1 taken along with site plan Ex.PW4/2. However, for the reasons mentioned R.S.A.No. 3794 of 2009 (O&M) 8 herein, I am of the confirmed view that under the facts and circumstances of the present case, which also shows the real intention of the parties as held in Roshan Lal vs. Ganpat and others (supra), 2000-2 PLR 39, the area which was partitioned from North to South and from East to West remained the same. Now when Satbir Singh appellant stepped into witness box as DW1, he has admitted that in the partition all the three brothers had got equal land. The site plan Ex.PW7/8 also shows that amongst three brothers appellant Satbir etc. equal land was allotted. Now on the file no site plan on behalf of appellant Satbir Singh has been produced which could possibly show that the area of land as shown in site plan Ex.PW7/1 filed by the plaintiff is different. Now it has come in the statement of plaintiff Jugbir that at the time of visit of Local Commissioner, construction was existing at the spot. Now irrespective of the fact that there is difference in measurement of length from East to West, yet from North to South, the site plan Ex.PW7/8 and Ex.PW7/1 tallies and a perusal of both the site plan show that the three brothers were allotted an area upto 84 feet each from north to south. Thus, Baljit Singh the brother of appellant Satbir was allotted an area upto 84 feet from North to South and then appellant Satbir Singh was R.S.A.No. 3794 of 2009 (O&M) 9 allotted another area of 84 feet beyond the area of Baljit Singh and plaintiff Jugbir was allotted another area of 84 feet from North to South beyond the area of Satbir Singh. 18. It may be added here that though the measurement from East to West in site plan Ex. PW7/8 and Ex.PW7/1 or Ex.PW4/2 may be different, yet the area of all the three brothers remain the same. 19. As discussed above, there was construction existing around the area which was partitioned amongst brothers, thus, the area which was partitioned also remained the same and was not capable of being increased or deceased. 20. Thus, when the area was equally distributed between appellant and his two brothers, the appellant Satbir can not claim an area of more than 84 feet in width from north to south beyond the area of his brother Baljit Singh. 17. Thus, actually, respondent-plaintiff Jugbir Singh was the owner of area upto 84 feet from North to South beyond the area of appellant Satbir and thus, appellant Satbir had no right to sell the portion beyond his 84 feet from north to south in site plan Ex.PW7/8. I am of the confirmed view that learned lower court has rightly reached to the conclusion that plaintiff Satbir is absolute R.S.A.No. 3794 of 2009 (O&M) 10 owner of strip of land of the size 13' x 25' shown in red colour marked by letters ABCD in the site plan and has rightly held sale deed to be illegal which includes area of that strip. Therefore, there is no need to appoint any fresh local commission and the judgment Mahabir and another versus Surta and others (supra) 2006-1 PLR 490 is of no help to the appellant.” Both the Courts below, after appreciating the evidence led by the parties have held that the plaintiff was absolute owner of the suit land and the sale deed executed by defendant No.2 in favour of defendant No.1 was illegal, null and void. In view of the report of the Local Commissioner, it was found that Satbir-defendant No.2 could not claim an area of more than 84 feet in width from North to South beyond the area of his brother Baljeet Singh. The said finding of fact arrived at by both the Courts below cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 23, 2009 anita