RSA No.1043 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1043 of 2010 (O&M) Date of decision: 10.3.2010 Om Parkash and others ............Appellants Versus Harbans Singh and others .........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. S. S. Dinarpur, Advocate for the appellants. --- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. 1. The present second appeal has been filed challenging the judgment and decree dated 4.1.2010 passed by the first Appellate Court/Addl. District Judge, Ambala. 2. The brief facts of the present case are that the plaintiffs/respondents filed a suit for declaration to the effect that they are the joint owners in equal shares of the land measuring 18 marlas (fully described in the plaint) by virtue of sale deed dated 9.7.1959; further declaration was sought that the subsequent sale deeds dated 11.7.1990, 26.7.1991and any other sale deeds are illegal, null and RSA No.1043 of 2010 (O&M) 2 void being the result of forged documents; consequential relief of possession was also sought. It was submitted that one Sadhu Ram was the owner in possession of the land in dispute; he had purchased the land which was comprised in khasra no.1283//1167/2 and khasra no.1096; he had purchased the land by way of a registered sale deed dated 21.3.1956 from one Shri Durga Parshad; Sadhu Ram sold the land in dispute to Ram Sarup and Chhajju Ram vide registered sale deed dated 9.7.1959; they were put into possession of the land; however, being illiterate persons, the plaintiffs could not get the mutation sanctioned in their names; that in 1989 the plaintiffs came to Ambala for getting the mutation entered; the Halqa Patwari asked them to bring Sadhu Ram; on inquiry they came to know that Sadhu Ram had shifted to Jalandhar where he died on 29.12.1988; they again contacted the Halqa Patwari of the village Nasirpur and Sh. Gobind Ram who was the Sarpanch of the village who assured full cooperation; however, when the plaintiffs again visited village Nasirpur after 2-3 years they saw that a building had been constructed upon the plot (land in dispute); the defendant No.5 Gobind Lal told that he had purchased the plot but did not show any sale deed; upon inquiry they came to know that Gobind Lal had got executed sale deeds in favour of defendants No.1 to 4; the defendant No.5 connived the defendants No.1 and 2, introduced some person who impersonated as Sadhu Ram and got the sale deed dated 11.7.1990 executed in favour of defendants no.1 and 2; he further got one Bharat Bhushan appointed as the General Power of Attorney of defendants No.1 and 2 and on the basis of the General Power of Attorney got sale deed dated 26.7.1991 executed in favour of his family members namely defendants No.6 and 7 and also raised RSA No.1043 of 2010 (O&M) 3 construction over the plot; the plaintiffs applied to the Tehsildar for demarcation of the plot bearing khasra 324 measuring 18 marlas; a retired Kanungo was appointed and the demarcation was carried out; a report was submitted on 23.3.1995 in which it was mentioned that over the land in dispute, a house had been constructed and the name plate with the same Saheb Ditta Mal was affixed thereon; this Saheb Ditta Mal is defendant No.7 and is the father of defendant No.5 Gobind Lal and father-in-law of defendant No.6; that the sale deeds were a result of fraud. Hence, the suit was therefore filed. 3. Defendants No.1, 2, 5, 6 and 7 contested the suit and raised certain preliminary objections regarding maintainability, limitation, suit for declaration simpliciter not being maintainable, proper court fee not having been paid, the plaintiffs not having the locus standi, the plaintiffs having materially concealed and suppressed the true facts of the case. It was submitted that the original owner Sh. Durga Parshad had sold the suit property to one Chaudhary Ram; in the consolidation proceedings khasra No.1283/1167/2 was converted into khasra No.324, Sadhu Ram had never become the owner in possession of the land converted into khasra No.324; that as per revenue record, Sadhu Ram was the owner of khasra No.1283//1167 which was subsequently converted into khasra No.323. The claim of the plaintiffs was, therefore, false; that the suit was without cause of action, was bad for mis-joinder and non-joinder of necessary parties; was hit by the provisions of Order 7 Rule 1 CPC, was false and frivolous, the defendants were bonafide purchasers of the property and were protected under Section 41 of the Transfer of Property Act; the suit has not been filed within limitation; the plaintiffs were estopped from filing the suit by their own RSA No.1043 of 2010 (O&M) 4 act and conduct; on merits, all averments made in the plaint were denied; it was, however, admitted that Sadhu Ram was the owner of the property; that the plaintiffs might have purchased some other property; the averments were denied. 4. Learned trial Court has dismissed the suit, however, on appeal, learned first Appellate Court decreed the suit in favour of the plaintiffs/respondents. 5. I have heard learned Counsel for the appellants and perused the record. 6. Undisputedly, Sadhu Ram was the owner of the property in dispute. Undisputedly, Sadhu Ram executed registered sale deed dated 9.7.1959 in favour of the original plaintiffs. Defendants claim that Sadhu Ram once again on 11.7.1990, sold the same very property in favour of defendants No.1 and 2. The only argument advanced before both the Courts below and before this Court by way of proposed substantial question of law No.1 is since plaintiffs failed to get mutation done in their favour pursuant to 1959 sale deed, making the sale deed of 9.7.1959 as waste paper and non est, hence, subsequent sale deed of 1990 made by Sadhu Ram is valid, and in any case defendants/appellants are bonafide purchasers. 7. In my humble opinion, the settled position of law is that entries in revenue record or municipal record do not confer any title, the important aspect to prove title is only source of title. Again settled position of law is that none can transfer title better than he himself has. Since, Sadhu Ram has sold the property in favour of the plaintiffs vide sale deed dated 9.7.1959, hence, he thereafter had no authority or legal right to transfer the same very property in favour of the defendants No.1 and 2 by way of subsequent sale deed of RSA No.1043 of 2010 (O&M) 5 11.7.1990. Hence, sale deeds claimed by the defendants/appellants is nothing except a waste paper and are void ab nitio and non est in the eye of law. Prior sale deed of 9.7.1959 would not become waste paper or non est simply because plaintiffs failed to get mutation done in their favour pursuant to sale deed of 9.7.1959. In other words, true owner can not loose or relinquish his title merely because he failed to get mutation done for long in his favour. 8. Therefore, in my humble opinion, learned first Appellate Court has committed no illegality or jurisdictional error in decreeing the suit in favour of the plaintiffs/respondents. 9. In view of the above, in the present appeal no substantial question of law arises which would require consideration in the present appeal. 10. The appeal being devoid of merit, must fail, and the same is dismissed at the admission stage. (ALOK SINGH) 10th March, 2010 JUDGE ashish