R.S.A. No. 613 of 2008 1 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 613 of 2008 Date of Decision: 01.12.09 Anil Tyagi son of Sh. Jai Bhagwan Tyagi son of Sh. Chunni Lal Tyagi, r/o village Holambi Kalan, Delhi. ... Appellant Versus 1. Satbir son of Sh. Mulki son of Sh. Ram Dhari, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 2. Jai Narain son of Sh. Kundan, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. ...Respondents R.S.A. No. 614 of 2008 Date of Decision: 01.12.09 Anil Tyagi son of Sh. Jai Bhagwan Tyagi son of Sh. Chunni Lal Tyagi, r/o village Holambi Kalan, Delhi. ... Appellant Versus 1. Jai Narain son of Sh. Kundan, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 2. Satbir son of Sh. Mulki son of Sh. Ram Dhari, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 3. Ramesh son of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 4. Parmesh son of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 5. Babli daughter of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. R.S.A. No. 613 of 2008 2 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 6. Rubesh daughter of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 7. Umesh (Minor) daughter of Sh. Mahabir, through her brother Ramesh son of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 8. Raju (Minor) son of Sh. Mahabir, through his brother Ramesh son of Sh. Mahabir, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. 9. Omrao Singh, Naib Tehsildar, Sub Tehsil Bapoli, District Panipat. ...Respondents R.S.A. No. 2621 of 2008 Date of Decision: 01.12.09 Satbir son of Sh. Mulki son of Sh. Ram Dhari, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. ... Appellant Versus 1. Anil Tyagi son of Sh. Jai Bhagwan Tyagi son of Sh. Chunni Lal Tyagi, r/o village Holambi Kalan, Delhi. ...Respondent 2. Jai Narain son of Sh. Kundan, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. ...Proforma-Respondent R.S.A. No. 2805 of 2008 Date of Decision: 01.12.09 Satbir son of Sh. Mulki son of Sh. Ram Dhari, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. ... Appellant Versus 1. Anil Kumar Tyagi son of Sh. Jai Bhagwan Tyagi son of Sh. Chunni Lal Tyagi, r/o village Holambi Kalan, Delhi. R.S.A. No. 613 of 2008 3 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 2. Jai Narain son of Sh. Kundan, r/o village Jhamba, Sub Tehsil Bapoli, District Panipat. ......Respondents 3. Ramesh son of Late Sh. Mahabir; 4. Parmesh son of Late Sh. Mahabir; 5. Babli daughter of Late Sh. Mahabir; 6. Rubesh daughter of Late Sh. Mahabir; 7. Umesh daughter of Late Sh. Mahabir; 8. Raju (Minor) d/o Late Sh. Mahabir; all residents of village Jhamba, Sub Tehsil Bapoli, District Panipat. 9. Naib Tehsildar, Bapoli, District Panipat. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ashwani Talwar, Advocate, for the appellant, in RSA No. 613 of 2008. Mr. Suryakant Gautam, Advocate, for respondent No. 1. Mr. Lokesh Singhal, Advocate, for respondent No. 2. Mr. Ashwani Talwar, Advocate, for the appellant, in RSA No. 614 of 2008. Mr. Lokesh Singhal, Advocate, for respondent No. 1. Mr. Suryakant Gautam, Advocate, for respondent No. 2. Respondents No. 3 to 8, exparte. Mr. Surya Kant Gautam, Advocate, for the appellant, in R.S.A. No. 2621 of 2008 and R.S.A. No. 2805 of 2008. R.S.A. No. 613 of 2008 4 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 SHAM SUNDER, J. * * * * This judgement shall dispose of RSA No. 613 of 2008, and RSA No. 614 of 2008, filed by Anil Tyagi, and, RSA No. 2805 of 2008 and RSA No. 2621 of 2008, filed by Satbir, against the judgment and decree, dated 09.02.08, rendered by the Court of Additional District Judge, Panipat, vide which, it accepted the appeal of Jai Narain, against the judgement and decree dated 30.11.06, rendered by the Court of Civil Judge (Junior Division), Panipat, and decreed his (Jai Narain's) suit for declaration and permanent injunction, and partly dismissed the suit of Anil Kumar. 2. The facts, in brief of Civil Suit No. 194/1 of 2005, are that, Anil Tyagi, plaintiff, purchased the land, in dispute, from Satbir, defendant, vide registered sale deed dated 20.06.02, for a valuable consideration of Rs. 4,80,000/-. It was stated that the possession of the land, in dispute, was delivered, to the plaintiff, by defendant No. 1, at the time of execution and registration of the sale deed. However, on 20.09.02, defendant No. 1, in connivance with the local Police, tried to dispossess the plaintiff, from the land, in dispute, without having any right and authority but his bid was foiled. The defendants, were many as time, asked to desist from their nefarious designs, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. Defendant No. 1 (Satbir), put in appearance, and filed written statement, wherein, he took up various objections, and R.S.A. No. 613 of 2008 5 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 contested the suit. It was pleaded that the suit was not maintainable; that the suit was bad for non-joinder of necessary parties; that the real and material facts were suppressed, from the Court; and that proper Court fee, had not been affixed. It was denied that any sale deed, was executed, in favour of the plaintiff, in respect of the land, in dispute. It was stated that, in fact, Ishwar Singh, father-in-law of the plaintiff, entered into an oral agreement with defendant No. 1, for exchange of some agricultural land. It was further stated that Ishwar Singh, approached defendant No. 1, on 02.06.02, and obtained his thumb impressions, on the sale deed, by making misrepresentation about the nature of the document. It was further stated that on 29.08.02, Ishwar Singh, proclaimed, in the village, that he had purchased the land, in dispute. It was further stated that, on enquiry, defendant No. 1, came to know, about the execution of the forged sale deed, as a result whereof, he got lodged a complaint with the concerned Police Station. However, no action, was taken, by the Local Police, and defendant No. 1, was forced, to file a private complaint, against the plaintiff, Ishwar Singh, the concerned Numberdar, and the scribe of the sale deed, in which, enquiry was still pending. It was further stated that defendant No. 1, was the owner of the land, in dispute. The remaining averments, were denied, being wrong. 4. Defendant No. 2 (Jai Narain), filed a separate written statement, pleading therein, that the plaintiff, had no locus-standi, to file the suit; that the suit was bad for mis-joinder and non-joinder of R.S.A. No. 613 of 2008 6 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 necessary parties; that real and material facts, were suppressed, from the Court; and that no cause of action, accrued to the plaintiff, to file the suit. It was stated that defendant No. 2, was the owner in possession of the land, measuring 8 kanals 0 marla, comprising khewat No. 94, khatoni No. 129, Rectangle No. 5, and killa No. 16. It was further stated that defendant No. 2, obtained the aforesaid land, from defendant No. 1, in exchange of some other land, which fact was duly incorporated, in the decree dated 29.07.92, passed by the Civil Court, in Civil Suit No. 635 of 1992, and since then, he had been in possession thereof. It was further stated that since the aforesaid land, was recorded, in the revenue record, in the name of shalmlat deh, therefore, it could not be mutated, in favour of defendant No. 2. However, the entries in the khasra girdwari, stood duly recorded in his name. It was further stated that thereafter, defendant No. 1, in collusion with the revenue authorities, again got the khasra girdawri entries, recorded in his name, without information and notice of defendant No. 2. It was further stated that defendant No. 1, without any right or authority, again alienated the land, in dispute, to the plaintiff. It was further stated that defendant No. 2, was the exclusive owner in possession of the land, in dispute. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is the owner in R.S.A. No. 613 of 2008 7 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 possession of the suit land as per sale deed dated 20.06.02 and is entitled to injunction thereby restraining defendants from interfering in his ownership and possession over the same? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff has no cause of action? OPD (iv) Whether the suit is bad for non-joinder of necessary parties? OPD (v) Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD (vi) Relief. 6. In Civil Suit No.230/1 of 2005, filed by Jai Narain, he claimed that he was the owner in possession of the land, to the extent of 1/ 2 share, as fully detailed, in the plaint, as per jamabandi, for the year 1986-87. It was stated that defendant No. 1, and Mahabir Singh, predecessor-in-interest of defendants No. 2 to 7, were the joint owners in possession of the land, in dispute. It was further stated that the plaintiff, on the one hand, and defendant No. 1, as also his brother Mahabir, on the other hand, exchanged their lands, in the year 1992. It was further stated that the said exchange, was duly incorporated, in a Civil Court decree dated 29.07.92, passed in Civil Suit No. 635 of 1992. It was further stated that, thus, the plaintiff, became the owner of the land, in dispute. It was further stated that, since the land, in dispute, had been recorded, in the name of shamlat deh, therefore, it could not R.S.A. No. 613 of 2008 8 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 be mutated, in his favour, but the entries, in the khasra girdawri, stood recorded, in his favour. It was further stated that, however, defendant No. 1, in connivance with defendant No. 9, again got the entries, in the khasra girdawri, changed in his name, and, thereafter, illegally alienated the suit land, in favour of Anil Tyagi, without any right or authority. It was further stated that, in the month of December, 2002, Anil Tyagi, tried to dispossess the plaintiff, from the land, in dispute. However, his attempt, was foiled with the intervention of respectables of the locality. The defendants, were many as time asked to desist from their nefarious designs, and treat the entries, made in khasra girdawri, in respect of the suit land, in favour of Satbir, as illegal, null and void, but to no avail. Ultimately, a suit for declaration and permanent injunction, was filed. 7. Defendants No. 1 to 3, filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not properly valued for the purposes of Court fee; that the plaintiff, had no locus-standi to file the suit; that no cause of action, accrued to the plaintiff, to file the suit; that real and material facts, were suppressed, from the Court; and that the suit, was bad for non- disclosure of the list of relatives of minor defendants. It was admitted that a consent decree, was passed, in favour of the plaintiff (Jai Narain). It was stated that no exchange took place, in respect of the land, in dispute, prior to the passing of the consent decree. It was further stated that though the land, in dispute, was covered by the river action, yet it R.S.A. No. 613 of 2008 9 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 did not vest in the shamlat deh. It was further stated that defendant No. 1, never executed any sale deed, in respect of the land, in dispute, in favour of Anil Tyagi. It was further stated that, in fact, Ishwar Singh, father-in-law of Anil Tyagi, persuaded him, to exchange the agricultural land, comprising Rectangle No. 17, killa No. 11/1/2 (3 kanals 1 marla), and Rectangle No. 18, killa No. 5/2/2 (5 kanals 7 marlas), with his agricultural land, comprising Rectangle Nos. 6, killa No. 19 (7 killas 19 marlas), 22 (7 kanals 18 marlas), 23 (8 kanals 0 marla), and 12/2 (7 kanals 7 marlas). It was further stated that Ishwar Singh, also agreed to repay the loan of defendant No. 1. It was further stated that, though, there was an oral exchange of the above referred land, yet, the same was not given effect to. It was further stated that Ishwar Singh, had fraudulently obtained the signatures of defendant No. 1, on the sale deed, by misrepresenting the nature thereof. It was further stated that defendant No. 1, was still the owner of the land, in dispute. The remaining averments, were denied, being wrong. 8. Defendants No. 8 and 9, filed a separate written statement, pleading therein, that the suit was not maintainable; that the plaintiff, had no locus-standi, to file the suit; that no cause of action accrued to the plaintiff, to file the suit; that the suit was not properly valued, for the purpose of Court fee; and that the plaintiff, was estopped, from filing the suit, by his own act and conduct. It was denied that any exchange, in respect of the land, in dispute, ever took place, between the parties. It was further stated that the plea of exchange, was a clever R.S.A. No. 613 of 2008 10 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 device, to avoid stamp duty. It was further stated that Anil Tyagi, had purchased the land, in dispute, alongwith some other land, from Satbir, for a valuable consideration, and the possession thereof, was also handed over, to him, at the time of execution and registration of the sale deed. The remaining averments, were denied, being wrong. 9. On the pleadings of the parties, the following issues were struck:- (i) Whether registered sale deed bearing number 478/1 dated 20.06.02, registered in the office of Sub-Registrar, Bapoli, District Panipat and mutation number 990 of village Jhamba and jamabandi for the year 1996-97 relating to land, measuring 8 kanals 0 marla, comprised in khewat No. 93, khatoni No. 129 min, rectangle No. 5, killa number 16 are illegal, null and void and not binding upon the rights of plaintiff? OPP (ii) In case issue No. 1 is decided in favour of plaintiff, then whether plaintiff is entitled for injunction as prayed for? OPP (iii) Whether suit filed by the plaintiff is not maintainable in the present form? OPD (iv) Whether suit filed by the plaintiff is not properly valued for the purposes of Court fee and jurisdiction? OPD (v) Whether defendant No. 8 is a bonafide purchaser of suit land for consideration and without notice? OPD (vi) Relief. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed Civil Suit No. R.S.A. No. 613 of 2008 11 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 194/1 of 2005, filed by Anil Tyagi, and dismissed Civil Suit No. 230/1 of 2005, filed by Jai Narain. 11. Feeling aggrieved, two appeals were preferred, by Jai Narain, which were accepted, by the Court of Additional District Judge, Panipat, and it partly set aside the judgement and decree passed in favour of Anil Tyagi, vide judgement and decree dated 09.02.08. 12. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants. 13. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 14 The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that Anil Kumar Tyagi, was not the bonafide purchaser of the disputed land, measuring 8 kanals, comprising khasra No. 5//16? 15. The Counsel for the appellant, submitted that, Anil Kumar Tyagi, appellant, after making due enquiries, like a prudent person, from the revenue record, purchased the property, in dispute, from Satbir, his vendor, for valuable consideration. He further submitted that, as such, the sale effected, in his favour, by Satbir, was protected, under Section 41 of the Transfer of Property Act. He further submitted that the first Appellate Court, was wrong, in coming to the conclusion, that Anil Kumar Tyagi, was not the bonafide purchaser, for valuable R.S.A. No. 613 of 2008 12 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 consideration, in good-faith, and without notice of any defect, in the title of Satbir, his vendor. He further submitted that the judgement and decree of the first Appellate Court, being illegal, were liable to be set aside. 16. On the other hand, the Counsel for Jai Narain, respondent, submitted that Jai Narain, was in possession of the land, as it had fallen, to his share, in exchange. He further submitted that, at the time of execution of the sale deed dated 20.06.02, by Satbir, in favour of Anil Kumar Tyagi, Jai Narain, was in possession of the suit property. He further submitted that Anil Kumar Tyagi, without ascertaining the nature of possession of Jai Narain, in respect of the property, in dispute, purchased the same. He further submitted that it could not be said, that Anil Kumar Tyagi, made bonafide enquiries, like a prudent person, before purchasing the property, in dispute. He further submitted that Anil Kumar Tyagi, could not be said to be a bonafide purchaser, for valuable consideration, in good-faith, and without notice of defect, in the title of Satbir, his vendor. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 17. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeals are liable to be dismissed, for the reasons to be recorded, hereinafter. It is evident, from P3, khasra girdawri, that from 01.10.93 to 01.03.97, Jai Narain, was shown, to be in possession of the R.S.A. No. 613 of 2008 13 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 property, in dispute, on the basis of decree, passed by the Court of Sh. S.S. Lamba, the then Senior Sub Judge, Panipat. Copy of the decree-sheet, is PW2/B, dated 29.07.92. A suit, was filed, by Mahabir and Satbir, against Jai Narain, to the effect, that they interse were owners in possession of 1/ 2 share, out of the total land, measuring 19 kanals 4 marlas, in head-note A, and Jai Narain, who was defendant therein, was owner in possession of 8 kanals of agricultural land, mentioned, in head-note B, on account of exchange. This suit, was decreed, as stated above, vide judgement and decree dated 29.07.92. On the basis of this decree, mutation P4, was sanctioned, in favour of Satbir and Mahabir, in respect of the land, they got in exchange from Jai Narain, and, they were shown, to be owners in possession thereof. Mutation of the land exchanged, in favour of Jai Narain, could not be sanctioned, as the said land, was shown, as the ownership of shamlat deh, but in possession of Satbir and Mahabir. However, on the basis of the decree, Jai Narain, was put in possession of the land given in exchange to him, by Satbir and Mahabir. However, thereafter, vide jamabandi P5, for the year 1996-97, Satbir, was shown, to be in possession, whereas, the ownership of 'shamlat-deh', was shown. In jamabandi P6, Satbir and Mahabir, were recorded, to be the owners in possession, to the extent of 1/ 2 share of the land, which was given, to them, in exchange by Jai Narain, as per the decree, referred to above. It means, that exchange, which was effected, between the parties, vide the decree aforesaid, was duly implemented. In P8 girdawri of the R.S.A. No. 613 of 2008 14 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 property, in dispute, again the name of Jai Narain, in the column of possession appeared. Mahender, Namberdar, appeared, as PW3, and stated that, Jai Narain, had been, in cultivating possession of the land, in dispute, since 1992. To the same effect, was the statement of Sumer Singh, resident of village Jhamba, who was examined, as PW4. No doubt, presumption of truth, is attached, to the entries, contained in the jamabandi. However, the same, is rebuttable. Since the decree, copy whereof, is PW2/B, had already been passed, in respect of the land, in dispute, in favour of Jai Narain, as far back as, on 29.07.92, and mutation P4, in respect of the land given in exchange by him to Satbir and Mahabir had already been sanctioned, had bonafide enquiries, been made, by Anil Kumar Tyagi, he would have certainly come to know, that Satbir, had already exchanged the land, in dispute, with Jai Narain, as a result whereof, he was put in possession thereof. Once, the land of Jai Narain, was given, by him, in exchange, and the exchange was duly acknowledged, by the decree, copy whereof, is PW2/B, and, Satbir and Mahabir, were put in possession thereof, it could not be imagined, that he (Jai Narain), would hand over the possession of his land, in their favour, on the basis of exchange, and would not take possession of the land, which was given, to him, by Mahabir and Satbir, in lieu of that land, in exchange. He did not make bonafide enquiries, like a prudent person, and purchased the land, from Satbir, knowing fully well, that he no longer remained in possession thereof, after the decree, referred to above, was passed. The first Appellate Court, was, thus, right in R.S.A. No. 613 of 2008 15 R.S.A. No. 614 of 2008 R.S.A. No. 2621 of 2008 R.S.A. No. 2805 of 2008 holding, that Anil Kumar Tyagi, was not the bonafide purchaser for valuable consideration, in good-faith, and without notice of defect, in the title of Satbir, in respect of the land, in dispute. The findings of the first Appellate Court, in this regard, being based, on the correct analysis of evidence, and law, on the point, do not suffer from any illegality and infirmity. The same, are liable to be upheld. 18. Satbir, has also challenged the legality and validity of the sale deed, exhibit DW1/B, in entirety. No doubt, the first Appellate Court, set aside the sale deed, to the extent of 8 kanals of land, in respect whereof, decree had already been passed, in favour of Jai Narain, and he was put in possession of the same. With regard to the remaining land, the sale deed, was not set aside. Ishwar, DW3, is one of the attesting witnesses of the sale deed, copy whereof, is DW1/B. He stated that Satbir, had sold the land, to Anil Kumar Tyagi, vide registered sale deed dated 20.06.02, for a valuable consideration of Rs. 4,80,000/-. He further stated that the sale deed, was typed by Sh. Satya Pal Sharma, Deed Writer, on the instructions of Satbir, which was read over