R.S.A.No. 3795 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3795 of 2009 (O&M) Date of decision: 23.10.2009 Satbir Singh ......Appellant Versus Jagbir 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 Civil Judge (Jr.Divn.), Gurgaon vide judgment and decree dated 2.6.2005. In appeal, filed by defendant No.2, the said judgment and decree were upheld by the Additional District Judge, Gurgaon vide judgment and decree dated 31.3.2008. Hence, the present appeal by defendant No.2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The plaintiff has filed the present suit against defendants for seeking declaration to the effect that he is R.S.A.No. 3795 of 2009 (O&M) 2 absolute owner of the strip of land of size 13 feet x 15 feet i.e. 13 feet towards East and West and 15 feet towards the North and South measuring an area of 22 sq. yards and shown in red colour and marked by letters ABCD in the site plan Mark P1 which forms part and parcel of Khasra No.2923/3 of Gurgaon village and situated within the residential colony of Laxman Vihar fully detailed in para No.1 of the plaint. 3. It is further submitted that plaintiff became the owner of the land along with other adjoining portions of the land bearing khasra No.2923/3 shown in yellow colour by way of family settlement/oral partition effected in between the plaintiff and his two brothers namely Baljeet Singh and Satbir Singh and the said family settlement was reaffirmed between the three brothers and their wives in suit No.126/95 titled as Baljeet Singh versus Jagbir etc. decided on 4.12.1995 by the court of Shri R.K.Sharma, the then Additional Civil Judge (Senior Division), Gurgaon and the mutation of the said decree was entered vide No.18408 and was sanctioned on 20.3.1996. After acting upon the said family settlement the plaintiff had left a strip of 13 feet x 214 feet for the purpose of plots meant for commercial activities i.e. shop etc. after leaving a rasta of 18 feet R.S.A.No. 3795 of 2009 (O&M) 3 wide toward the south of the said strip. In said family settlement the land of khasra no.2923/2 shown in green colour had fallen to the share of defendant No.2 and the land of the plaintiff abuts to the land of the defendant No.2. Defendant No.2 became dishonest and out of his mala fide sold away different pieces of above said strip of land of the size of 13 feet x 214 feet through different sale deeds. Defendant No.1 is one of the vendee of defendant No.2 and the sale deed bearing vasika no.13812 dated 24.2.1999 executed by defendant No.2 in favour of defendant No.1 is illegal, null and void and not binding upon the right, title and interest of the plaintiff qua the strip of suit land mentioned in para No.1 of the plaint as the same has been illegally included by defendant No.2 in the said impugned sale deed and the plaintiff has the subsisting right to get canceled the sale deed dated 24.2.1999 as the same had included an area of 22 sq. yards belonging to the plaintiff therein. Defendant No.1 had encroached the suit land of the plaintiff by raising compound wall along with three sides and defendant No.1 is adamant to raise construction over the suit land and the plaintiff has got the subsisting right to get the defendant restrained from raising any sort of R.S.A.No. 3795 of 2009 (O&M) 4 construction over the suit land by way of permanent injunction. 4. It is also submitted that defendant No.2 had sold away the suit land despite stay orders against him passed in the suit titled Jugbir versus Satbir Singh pending before the court of Sh.R.K.Jain, the then civil Judge (Jr.Divn.), Gurgaon for 20.4.2000. The plaintiff also got demarcated his land of khasra no.2923/3 from Gian Chand office Kanungo, Gurgaon who was appointed as Local Commissioner by Tehsildar, Gurgaon and also found that the present defendant No.2 had illegally sold away some pieces of the land out of the strip of 13 feet x 214 feet from which plaintiff reserved his right to seek possession from other vendees of defendant No.2, hence the suit. 5. Notice of the suit was given to the defendants and the defendants filed written statement and defendant No.1 took the preliminary objection of maintainability, locus standi, and misjoinder and non- joinder and necessary parties. 6. On merits, it is submitted that sale deed is legal and is binding on the plaintiff and defendant No.2. All other allegations have been denied as wrong as mentioned in the plaint. R.S.A.No. 3795 of 2009 (O&M) 5 7. Defendant No.2 filed separate written statement and taken almost all the preliminary objection as of defendant No.1. On merits, it is submitted that the factum of family partition is admitted and stated that defendant No.2 received khasra no.2923/2 in the said partition. Defendant No.1 is bona fide purchaser and defendant No.2 has sold only his share to him. All other allegations made in the plaint were denied as wrong.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is the absolute owner of strip of land mentioned in para no.1 of the plaint? OPP 2. Whether the sale deed dated 24.2.1999 executed by defendant No.2 in favour of defendant No.1 qua the suit land is illegal, null and void and nonest and same is not binding upon the plaintiff? OPP 3. Whether the defendant No.1 encroached upon the suit land and if so to what effect? OPP 4. Whether the plaintiff has no locus standi to file the suit? OPD 5. Whether the plaintiff has no cause of action to file the suit? OPD 6. Whether the plaintiff is estopped from filing R.S.A.No. 3795 of 2009 (O&M) 6 the present suit? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 8. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether the suit is time barred? OPD 10. Whether the defendant No.1 is bond fide purchaser. If so, to what effect ? OPD 11. 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. The plaintiff had filed a suit for declaration that he was absolute owner of the strip of land mentioned in head note of the plaint. The case of the plaintiff is that by way of family settlement, he had become owner of the suit property. A decree was also passed between the plaintiff and defendant No.2 and their brother Baljit Singh in civil Suit No.126 of 1995 decided on 4.12.1995. Mutation, on the basis of decree, bearing No.18408 was sanctioned on 20.3.1996. Both the Courts below, after appreciating the evidence on record, held that the suit property formed part and parcel of khasra No.2923/3, which had come to the share of the plaintiff in a family settlement followed by the civil Court decree. The said finding of R.S.A.No. 3795 of 2009 (O&M) 7 fact, arrived at by 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