R.S.A.No. 3792 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3792 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, mandatory injunction and possession which was decreed by the Additiional Civil Judge (Sr.Divn.), Gurgaon vide judgment and decree dated 24.5.2006. In appeal, filed by defendant No.3, 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.3. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Briefly stated the facts of the present case are R.S.A.No. 3792 of 2009 (O&M) 2 that plaintiff is owner of the strip of land of size 13 x 27' measuring approximately 40 square yards shown in red colour and marked by letters ABCD in the site plan which is forming part and parcel of khasra No. 2923, situated within the residential colony of Laxman Vihar Phase-II, Gurgaon (hereinafter called as suit property) and which is bounded as under:- East: Vacant land of the plaintiff shown in yellow colour, forming part of Khasra No. 2923/3. West: Vacant land of the plaintiff shown in yellow colour and thereafter houses of Ravinder and Mahesh who illegally encroached upon the land of the plaintiff the size 13 x 25'. North: Land of Khasra No. 2923/2 owned by the defendant No.3, who sold the same to the defendants No. 1 and 2 through the sale deed in question. South: Land of the plaintiff forming part of Khasra No. 2923/3 being used as rasta of 18' wide and thereafter other plots of the plaintiff. It was averred that plaintiff became owner of suit property on the basis of family settlement, re-affirmed in civil suit No. 126/95 decided on 4.12.1995 and mutation No. 18408 sanctioned and 20.3.1996; that family settlement R.S.A.No. 3792 of 2009 (O&M) 3 was duly acted upon by the parties concerned; that defendant No.3, brother of plaintiff has now been became dishonest and out of mala fide, he sold the plot measuring 180 sq. yards including suit property to defendants no.1 and 2 through registered sale deed dated 7.2.97 for sale consideration of Rs. 1,80,000/-. It was averred that the sale deed dated 7.2.97 is illegal, null and void and not binding upon the rights of plaintiff, but defendants no. 1 and 2 have raised the construction of boundary wall during pendency of previous suit titled as Jugbir Singh vs. Satbir Singh which is still pending and plaintiff is entitled to get possession of suit land free from all kinds of construction. It was averred that in previous suit titled Jugbir Singh vs. Satbir Singh, Local Commissioner submitted his report on 22.5.1999 about raising of construction on suit land by defendants No. 1 and 2 during pendency of that suit and plaintiff also got demarcated his share of land through Gian Chand, the then Office Kanungo,Gurgaon ; that said Gian Chand carried out demarcation and found that defendant NO.3 had illegally sold some pieces of land including suit property belonging to plaintiff by selling away his own land to defendant No.1. It was pleaded that on coming to know about illegally committed by defendant no.3, R.S.A.No. 3792 of 2009 (O&M) 4 plaintiff made request to defendants not to raise construction, but of no use. Hence the present suit. 3. On being noticed, defendants appeared. Defendants No. 1 and 2 filed written statement controverting the claim of the plaintiff by taking certain preliminary objections regarding maintainability, no cause of action, suit being time barred, estopped etc. On merits, almost all other averments of the plaintiff were denied and it has been strenuously averred that answering defendants are bonafide purchaser for consideration ; that after purchase the answering defendants have raised a compound walls of the height of 5.5 feet over the plot in question and there has been no objection of any kind from any person including plaintiff. It was asserted that before purchase, answering defendants even had inquired from plaintiff himself and on his assurance, answering defendants did purchase suit property. It was emphasised that plaintiff and defendant No.3 have colluded with each other to cause illegal loss to the answering defendants. It was prayed that suit be dismissed with costs. \ 4. Defendant No. 3 also filed separate written statement dispiting the claim of plaintiff. The following preliminary objections were taken that suit is legally not R.S.A.No. 3792 of 2009 (O&M) 5 maintainable in the present form; that suit is barred under Order 2 rule 2 CPC; that plaintiff is estopped from filing the present suit by his own act and conduct: that suit is barred under Order 23 CPC etc. on merits, ownership of plaintiff over the suit property was denied by pleading the answering defendants did not sell any land of plaintiff. Rather, answering defendant sold the land out of his own land to defendants no. 1 and 2. Request for dismissal of suit was made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner of strip of land of size 13' x 27' stated in para no. 1 of the plaint? Opp 2. Whether the said strip of land in suit is part and parcel of Khasra No. 2923/3 of Gurgaon village? OPP 3. Whether the sale deed bearing Vasika No. 15879 dated 7.2.97 executed by defendant no. 3 in favour of defendants no. 1 and 2 qua the strip of land in suit is illegal, null and void and not binding upon the plaintiff?OPP 4. Whether the plaintiff is entitled to possession of the strip of land in suit?OPP 5. Whether the suit is not maintainable?OPD R.S.A.No. 3792 of 2009 (O&M) 6 6. Whether the plaintiff has no cause of action to file the suit?OPD 7. Whether the suit is time barred? OPD 8. Whether the plaitniff is estopped from filing the present suit as alleged?OPD 9. Whether the suit is bad for non-joinder of necessary parties as alleged?OPD 10. Whether the defendants no. 1 and 2 are the bonafide purchasers for valuable consideration and notice to the plaintiff?OPD 11. Whether suit is collusive between the plaintiff and defendantl no. 3 as alleged?OPD 12. Whether the suit is not properly valued for the purposes of court fees and jurisdiction as alleged?OPD 13. Whether the suit is barred under Order 2 rule 2 CPC?OPD 14. 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. 14 to 17, in the impugned judgment held as under:- R.S.A.No. 3792 of 2009 (O&M) 7 14. 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.P1. No doubt, on behalf of appellant, an argument has been raised that there is ;difference in area as per Annexure-C site plan Ex.PW6/5 and mutation Ex.PX/9 and as per report Ex.PX/3/EX.PX/4 taken along with site plan Ex.PX/5. However, for the reasons mentioned 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 appellant Satbir stepped into witness box as DW1, he has admitted that there was wall in the Northern side of Z portion of site plan Ex.PW6/5. He has also admitted that on the Southern side of Y portion of the site plan Ex.PW6/5, when site plan Ex.PW6/5 was got prepared houses had been constructed there. Thus, measurement of the area which was partitioned amongst Satbir and his brothers was definite from North to South. Now it may be added here that as statement of Satbir Singh DW, the area in between from East to West also remained the R.S.A.No. 3792 of 2009 (O&M) 8 same as Satbir when stepped into witness box as DW1, he ; has admitted that in site plan Ex.P1, beyond FL line towards East, there were already existing houses and beyond MH line towards West, the LR of Jodha alias Dallu had cut the land into plots before their partition. Now Satbir has admitted that site plan Ex.PW6/5 was correctly prepared on the date on which it was prepared and they all the three brothers had put their signatures after admitting it to be correct. He was admitted that as per site plan Ex.PW6/5, they had got an area 84 feet each in length from North to South. Now this fact is also supported by site plan Ex.PW6/5 which site plan shows that all the three brothers were allotted 84 feet each from North to South. 15. Thus, what comes out is that the area that was divided between the parties was definite and was not capable of being reduced or increased. 16. As discussed above that area was equally distributed between appellant and his two brothers. Thus, 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.PW6/5. I am of the R.S.A.No. 3792 of 2009 (O&M) 9 confirmed view that learned lower court has rightly reached to the conclusion that plaintiff Satbir is absolute owner of strip of land of the size 13' x 27' 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.3 in favour of defendants No.1 and 2 was illegal, null and void. In view of the report of the Local Commissioner, it was found that Satbir-defendant No.3 could not claim an area of more than 84 feet in width from North to South beyond the area of his brother Baljit 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