RSA No.488 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.488 of 2011 (O & M) Date of Decision: 31.01.2011 Jasbir Kaur ……Appellant Versus The Ganda Cooperative Joint Farming Society Ltd. and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sukhbir Singh, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.1329-C of 2011 Allowed as prayed for. CM No.1330-C of 2011 This is application by appellant for condonation of delay of 553 days in refilling the appeal. It is alleged that the appeal was initially filed within limitation period, but it was returned with some objections and was refilled on 01.07.2009 after removing the objections. However, the appeal was again returned with some objections. Then the file was mixed with other briefs and was misplaced after it was returned on 10.08.2009. The file was traced on 25.01.2011 and, therefore, there has been delay of 553 days in refilling the appeal. RSA No.488 of 2011 (O & M) - 2 - I have heard learned counsel for the applicant-appellant and perused the case file. Learned counsel for the applicant-appellant reiterated the version stated in the application. I have carefully considered the same, but find myself unable to condone the long delay of 553 days in refilling the appeal on the aforesaid vague, general and specious ground. Such long delay of more than 1 ½ years cannot be condoned on such vague and general averments. If these averments are accepted to condone this long delay, the very purpose of prescribing the limitation period would be defeated completely. For the reasons aforesaid, I find no sufficient ground for condoning the long delay of 553 days in refilling the appeal. The application is accordingly dismissed. Main appeal. Since application for condonation of delay in refilling the appeal has been dismissed, the appeal is liable to be dismissed on this ground. However, even on merits, the appellant cannot succeed. Defendant No.2-Jasbir Kaur has filed the instant second appeal, after having partially failed in both the Courts below. Respondent Nos.3 to 7-plaintiffs filed suit against defendant-respondent No.1- The Ganda Cooperative Joint Farming Society Ltd. (in short, the Society), Jasbir Kaur-appellant-defendant No.2 and her husband Baldev Singh defendant No.3/respondent No.2. Plaintiffs alleged that the suit land measuring 16 kanals was owned by defendant No.1-Society and was being cultivated by RSA No.488 of 2011 (O & M) - 3 - plaintiff No.5 and by Bagicha Singh father of plaintiff Nos.1 to 4 as tenants on 1/3rd batai since long. After death of Bagicha Singh, plaintiffs No.1 to 4 are cultivating the suit land along with plaintiff No.5. Defendant No.1-Society has been dissolved and Ved Prakash, Sub-Inspector, Cooperative Societies, has been appointed as Liquidator vide order dated 21.07.2005. However, after dissolution of the Society, defendant No.3, who is shareholder in the Society, executed sale deed dated 08.09.2005 of the suit land in favour of his own wife defendant No.2, but in the sale deed, defendant No.2 was described by her father’s name instead of describing her by her husband’s name i.e defendant No.3, who executed the sale deed. Defendant No.2 had no right to execute the sale deed of the suit land after liquidator of the Society had been appointed. The sale deed was executed without consideration and authority and is based on fraud. The same is liable to be set aside. Defendant Nos.2 and 3 threatened to dispossess the plaintiffs from the suit land on the basis of the said sale deed. Accordingly, plaintiffs sought permanent injunction restraining defendant Nos.2 and 3 from dispossessing the plaintiffs from the suit land forcibly and illegally and from taking possession thereof. The plaintiffs also sought relief that the aforesaid sale deed is null and void and is liable to be set aside. Defendant No.1 broadly admitted the claim of the plaintiffs. Defendant Nos.2 and 3, by filing separate but similar written statements, contested the suit and broadly denied the plaint allegations. It was pleaded that there are 11 members of defendant No.1-Society which is being managed by Managing Committee of 5 members. Defendant Nos.2 and 3 are members of the Society. On RSA No.488 of 2011 (O & M) - 4 - 16.06.1993, Managing Committee of the Society by majority votes sold land measuring 43 kanals 1 marla including the suit land. Sale deed thereof was to be executed in favour of defendant No.2 at Collector rate. The total sale price came to about Rs.2,15,250/-. The sale consideration was adjusted from security money and other money of defendant No.2 which had already been deposited with defendant No.1-Society. Power of attorney was given to defendant No.3 to execute the sale deeds. However, in the resolution, the matter of sale was not mentioned inadvertently. However, the same was ratified vide resolution dated 10.02.1994. General body of defendant No.1-Society vide its resolution dated 15.07.2005 by majority votes authorized defendant No.3 to execute the sale deed of the aforesaid total land including suit land on behalf of defendant No.1-Society in favour of defendant No.2 . In compliance with the said resolution, defendant No.3 executed the sale deed of the aforesaid total land in favour of defendant No.2 and also got it registered dated 08.09.2005 for ostensible price of Rs.6,43,500/- at the current Collector rate because Sub-Registrar refused to register the sale deed for lesser consideration. The suit land was agreed to be sold to defendant No.2 much prior to the alleged winding up process and appointment of Liquidator on 21.07.2005. Authority of defendant No.3 conferred vide resolution date 15.07.2005 to execute sale deed was not revoked. The suit land was previously cultivated by Bhup Singh and Kashmir Singh, but they had given up its cultivation in the year 2000-01 and thereupon plaintiff No.5 and his brother Bagicha Singh i.e father of the plaintiff Nos.1 to 4 forcibly occupied the suit land without consent of concerned parties and got the girdawari corrected illegally without notice. Plaintiffs are neither RSA No.488 of 2011 (O & M) - 5 - tenants over the suit land nor have ever given batai to defendant No.1. They are trespassers. Defendant No.2 is entitled to take possession of the suit land from them on the basis of title. Defendant No.2 made counter claim for the same. Learned Additional Civil Judge (Senior Division), Fatehabad vide judgment and decree dated 31.05.2008 partly decreed the plaintiffs’ suit regarding relief of permanent injunction restraining defendant Nos.2 and 3 from dispossessing the plaintiffs from the suit land forcibly. Counter-claim of defendant No.2 was dismissed. However validity of sale deed dated 08.09.2005 was not adjudicated upon as the same was executed after dissolution of defendant No.1-Society, the same being subject to scrutiny by liquidator of the Society. Defendant No.2 preferred two first appeals against judgment and decree of the trial court, possibly because suit of the plaintiffs was partly decreed and counter claim of defendant No.2 stood dismissed by the trial Court. Learned Additional District Judge, Fatehabad vide common judgment dated 13.02.2009 dismissed both the appeals. Feeling aggrieved, defendant No.2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Defendant No.2 has set up her title over the suit land on the basis of sale deed dated 08.09.2005, but prior to it, defendant No.1-Society had already been dissolved and its Liquidator had been appointed on 21.07.2005. Consequently, Courts below have rightly RSA No.488 of 2011 (O & M) - 6 - not adjudicated upon the issue of validity of the aforesaid sale deed, which has been left to be determined by the Liquidator. Courts below have decreed the plaintiffs’ suit for relief of permanent injunction only. Admittedly the plaintiffs are in possession of the suit land which is also proved form the evidence on record. Consequently, plaintiffs cannot be dispossessed therefrom except in due course of law and injunction to this effect has been rightly granted by the Courts below. Learned counsel for the appellant, however, contended that plaintiffs are trespassers and, therefore, injunction cannot be granted in their favour against defendant No.2-appellant who is true owner of the suit land. The contention cannot be accepted for two reasons. Firstly, defendant No.2-appellant is not yet established to be owner of the suit land and the issue regarding the same is to be adjudicated upon by the Liquidator of the Society. Secondly, plaintiffs are in established possession of the suit land. Even according to version of defendant No.2-appellant herself, plaintiff No.5 and Predecessor of plaintiff Nos.1 to 4 occupied the suit land in 2000-01 after previous occupants Bhup Singh and Kashmir Singh gave up cultivation of the suit land. The instant suit was instituted on 24.10.2005. In other words, the plaintiffs have been in possession of the suit land for almost five years since before the filing of the suit. The plaintiffs are thus in established possession of the suit land. Consequently, plaintiffs cannot be dispossessed therefrom except in due course of law. RSA No.488 of 2011 (O & M) - 7 - Learned counsel for the appellant also contended that plaintiffs have not proved payment of any batai by them to defendant No.1-Society. However, Liquidator of the Society may, if so advised, take appropriate steps in accordance with law for recovery of the batai amount if any due from the plaintiffs. However, for the same, relief of injunction cannot be denied to the plaintiffs when they are in established possession of the suit land. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 31.01.2011 A.kaundal