RSA No.4435 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4435 of 2010 (O & M) Date of decision: 18.01.2011 Mam Chand ........Appellant Versus Smt. Ramwati and others ......Respondents CORAM: HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr.R.K. S. Brar, Advocate for the appellant L. N. MITTAL, J.(ORAL) CM NO.13305-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 26 days in filing the appeal is condoned. CM No.13306-C of 2010 Allowed as prayed for. Main Appeal Plaintiff-Mam Chand having failed in both the Courts below, is in second appeal. Plaintiff’s father Molar suffered consent decree dated 10.08.1971 whereby plaintiff and his brother Raj Kumar became owners in possession of the suit land in equal shares i.e half share each. Raj Kumar died on 01.08.1973. Plaintiff alleged that half share of Raj Kumar in the suit land also came to plaintiff. The plaintiff has been cultivating the entire suit land. Plaintiff’s father remained away from the village for many years. His whereabouts RSA No.4435 of 2010 (O & M) -2- were not known for more than 15 years before the filing of the suit. Plaintiff had leased out 23 kanals land out of the suit land to defendant Nos.1 and 2, who had been paying lease money to the plaintiff. However, about 2 months prior the filing of the suit, defendant Nos.1 and 2 refused to give lease money to the plaintiff and declared that they had become owners of 22 kanals 16 marlas land pursuant to sale deed executed in their favour by plaintiff’s father Molar. On inquiries, the plaintiff found that there was sale deed dated 12.06.1985 relating to 4 kanals 9 marlas land in favour of defendant Nos.1 and 2 and another sale deed dated 20.05.1987 relating to 18 kanals 7 marlas land in favour of defendant No.1. The said sale deeds have been challenged in the suit being null and void as Molar had no right, title or interest in the suit land after suffering decree dated 10.08.1971. Defendant Nos.1 and 2 have gifted aforesaid land to defendant Nos.4 and 5 vide gift deed dated 02.02.2000, which has also been challenged in the suit. Accordingly, the plaintiff sought declaration that the aforesaid sale deeds dated 12.06.1985 and 20.05.1987 and gift deed dated 02.02.2000 and mutation No.2991 relating to gift are null and void and not binding on the plaintiff. He has also sought decree for joint possession of the suit land along with injunction restraining defendant Nos.1 and 2 from alienating the suit land. Defendant Nos.1 and 2 contested the suit and claimed to be bona fide purchasers of the suit property through sale deeds dated 12.06.1985 and 20.05.1987. Molar had also mortgaged some land with bank and with one Bhagat Ram prior to sale of the land to defendant Nos.1 and 2. The land was sold for legal necessity by RSA No.4435 of 2010 (O & M) -3- Molar. Its mutation was also got sanctioned by him in favour of defendant Nos.1 and 2. The plaintiff never objected to the same despite being aware of the sale. Defendant Nos.1 and 2 became owners in possession of the suit land since the date of sale deeds. The plaintiff’s father had also sold some land in the year 1982 within the knowledge of the plaintiff. Alleged decree dated 10.08.1971 was not reflected in revenue record till the filing of the suit on 19.08.2002. The suit was also alleged to be time barred. Some other preliminary objection were also raised. Plaint allegations were broadly controverted. It was denied that suit land was leased out from plaintiff to defendant Nos.1 and 2. On the other hand, they have been cultivating the land as owners after purchasing it from Molar, who delivered the possession to them. Various other pleas were also raised Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 18.12.2008 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Karnal vide judgement and decree dated 29.07.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Even taking the plaint allegations at face value, plaintiff- appellant cannot succeed. Plaintiff staked his claim on the basis of decree dated 10.08.1971 suffered by plaintiff's father in favour of plaintiff and his brother Raj Kumar in equal shares. Raj Kumar died on 01.08.1973. Plaintiff's claim is that on death of Raj Kumar, his RSA No.4435 of 2010 (O & M) -4- half share in the suit land also came to the plaintiff. However, this claim of the plaintiff is unacceptable because admittedly Molar father of plaintiff and Raj Kumar was alive when Raj Kumar died on 01.08.1973. Consequently, in view of Entry I of Class II of the Schedule to the Hindu Succession Act, 1956, Molar father of Raj Kumar deceased was his sole heir in preference to the plaintiff, who as brother of Raj Kumar falls in Entry II of Class II of the Schedule to the Hindu Succession Act, 1956. Consequently, plaintiff could not inherit half share of Raj Kumar and rather plaintiff's father Molar inherited the same. Molar sold 22 kanals 16 marlas land out of the suit land to defendant Nos.1 and 2 vide two sale deeds dated 12.06.1985 and 20.05.1987. Consequently, defendant Nos.1 and 2 became owners in possession of the said land. The plaintiff, therefore, has no right, title or interest therein. Learned counsel for the appellant contended that the aforesaid sale deeds were not executed by Molar, whose whereabouts were also not known and, therefore, the said sale deeds are null and void. However, no such plea appears to have been taken in the plaint that the said sale deeds were not executed by Molar. On the other hand, perusal of judgments of the Courts below reveals that the sale deeds were challenged by the plaintiff on the ground that Molar had no right, title or interest in the suit land and, therefore, he could not execute the sale deeds in favour of defendant Nos.1 and 2. This plea of the plaintiffs cannot be accepted because Molar became owner of half share of Raj Kumar in the suit land on the death of Raj Kumar, even assuming decree dated 10.08.1971 set up by the plaintiff to be valid. Moreover, there RSA No.4435 of 2010 (O & M) -5- is no cogent evidence to depict that whereabouts of Molar were not known for 15 years before the filing of the suit. There is practically only self-serving statement of the plaintiff to this effect which is not sufficient to establish this fact. In addition to it, even if it be assumed that whereabouts of Molar were not known for 15 years before filing of the suit, even then it cannot be said that the aforesaid sale deeds had not been executed by him. The suit was filed on 20.08.2002 and, therefore, according to plaint averments, whereabouts of Molar were not known since about August, 1987. However, sale deeds in favour of defendant Nos.1 and 2 were executed prior to it, the sale deeds being dated 12.06.1985 and 20.05.1987. Thus examined from any angle, the aforesaid sale deeds cannot be said to be invalid in any manner. It is also worth mentioning that revenue record continued to depict Molar to be owner in possession of the entire suit land including alleged half share of the plaintiff on the basis of consent decree dated 10.08.1971 because the said decree was never reflected in the revenue record. Consequently, defendant Nos.1 and 2 are bona fide purchasers of the suit land from Molar. Even otherwise, Molar had half share in the suit land even assuming the plaint averments to be correct at face value. Plaintiff's plea that he leased out the suit land to defendant Nos.1 and 2 in the year 1985 rather corroborates the version of the defendants that they had purchased the suit land in the years 1985 and 1987 and became owners in possession thereof since then. The plaintiff has taken the plea of leasing out the suit land to explain the possession of the defendant Nos.1 and 2 over the suit land since the year 1985. RSA No.4435 of 2010 (O & M) -6- However, there is no cogent evidence to substantiate the plaintiff's plea that he had leased out the suit land to defendant Nos.1 and 2. Revenue entries rather depicted defendant Nos.1 and 2 as owners in possession of the suit land. The suit is also barred by limitation. Sale deeds in favour of defendant Nos.1 and 2 were executed in the years 1985 and 1987 and the suit was filed in the year 2002. Thus the suit is hopelessly barred by limitation. There is concurrent finding recorded by both the Courts below against the plaintiff-appellant. The said finding is fully justified by the evidence on record and supported by detailed cogent reasons recorded by the Courts below in their elaborate judgments. The said finding is not shown to be perverse or illegal in any manner so as to call for interference in second appeal. On the contrary, taking the plaint averments at face value, the plaintiff has no right, title or interest in the suit land and, he cannot succeed in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely frivolous and meritless and is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 18.01.2011. A.Kaundal