IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1935 of 2007 Date of Decision : July 30, 2009 Ashok Kumar ....Appellant Versus Rakesh Kumar and others .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.L.Verma, Advocate for the appellant. Mr. K.S.Dhillon, Advocate for respondent No.1. T.P.S. MANN, J. Suit for declaration filed by Balwan Singh Thakur, who is now represented by his son Ashok Kumar-appellant as his sole legal representative, that the registered sale deed dated 8.12.1993 executed by Yogesh Suri, as a Special Attorney of Smt. Sohag Rani and as a General Attorney of Tilak Raj and Jawahar Lal, in favour of Raj Kumar Madaan Memorial Charitable Trust, Kartarpur, in respect of House No. 3365, Gali Surian, Kartarpur, was illegal, malafide, fictitious, null and void and inoperative in the eyes of law and, thus, not binding upon him and also for a decree of permanent injunction so as to restrain Rakesh Kumar and Raj Kumar Madaan Memorial Charitable Trust, Kartarpur, from alienating any portion of the aforementioned house, was dismissed by learned Civil Judge (Junior Division), Jalandhar, on February 01, 2006. The appellant then filed the first appeal, which was also dismissed by learned Additional District Judge, Jalandhar, on January 25, 2007. He is now in a second appeal before this Court which he has filed under Section 100 of R.S.A. No. 1935 of 2007 -2- the Code of Civil Procedure. In his plaint, plaintiff Balwan Singh had averred that Smt. Sohag Rani, Tilak Raj and Jawahar Lal were the owners of the aforementioned house, which they had rented out to him in the year 1959 and since then, he and his family members were living in the same. All the owners of the suit property had given Power of Attorneys in favour of Yogesh Suri, who executed the sale deed dated 8.12.1993 regarding the suit property in favour of Raj Kumar Madaan Memorial Charitable Trust, Kartarpur-defendant No.2, with the sole purpose of ousting him from there. There was no such Trust by the name of Raj Kumar Madaan Memorial Charitable Trust, in existence and, therefore, the execution of the registered sale deed was illegal, malafide, fictitious, null and void and not binding upon him. On the basis of the aforementioned sale deed, Rakesh Kumar-defendant No.1, who claimed himself to be the Manager/Trustee of the so-called trust, tried to dispossess him forcibly from the house in dispute. Accordingly, the plaintiff filed a suit and obtained an order of injunction. Since he continued to be in lawful possession of the suit property, defendants No.1 and 2 started negotiating with some unscrupulous and influential persons to alienate the suit property in their favour in order to oust him forcibly. As the defendants did not accede to his request of not to alienate the suit property, he filed the present suit. The suit was opposed by defendants No.1 and 2, who took preliminary objections regarding maintainability and locus standi of the plaintiff. It was pleaded that Sohag Rani, Tilak Raj and Jawahar Lal sold the suit property to them vide sale deed dated 8.12.1993 for a valuable R.S.A. No. 1935 of 2007 -3- consideration and the possession of the major portion of the suit property was surrendered in their favour and they were in possession over the same since then. The trust was formed in the year 1987 and registered with the Sub Registrar in the year 1992. Stating that the averments made by the plaintiff were incorrect, they prayed for dismissal of the suit. As mentioned above, the plaintiff lost in both the learned Courts below and is now in the present second appeal. The suit property was owned by Sohag Rani, Tilak Raj and Jawahar Lal. All of them had given their respective Power of Attorneys in favour of Yogesh Suri. On the basis of the said authority, Yogesh Suri executed the sale deed dated 8.12.1993 transferring the suit property in favour of Raj Kumar Madaan Memorial Charitable Trust. These facts are not in dispute and so also the fact of the plaintiff being a tenant on the suit property. However, the dispute between them still continues regarding the area/portion of the suit property, under the tenancy of the plaintiff. The stand of the plaintiff that no such Trust by the name of Raj Kumar Madaan Memorial Charitable Trust, was in existence and, therefore, the sale deed dated 8.12.1993 executed by the attorney of the land owners of the suit property in favour of the Trust was illegal, malafide, fictitious, null and void and inoperative in the eyes of law, cannot be believed as the Trust was created vide Trust deed Ex.DW5/A on 20.10.1993 and registered with the Registrar of Firms and Societies, Punjab, in June, 1994. Therefore, the Trust was in existence before the execution of the sale deed. As the Trust was exempted from payment of stamp charges, the objection of the plaintiff that no R.S.A. No. 1935 of 2007 -4- stamp charges were paid when the sale deed was executed, cannot be given any credence. Even if the stamp duty was required to be paid and not paid by the Trust, it was for the Sub Registrar/Collector to take the appropriate action but the plaintiff has no locus standi to challenge the sale deed. The defendants had examined DW6 Jasbir Singh, Registration Clerk, from the office of Joint Registrar, Sub Tehsil, Kartarpur, who brought the record of bahi No. 240, vasika No. 507 and proved the attested copy of the same as Ex.DW6/B, which was the sale deed executed by Yogesh Suri, attorney of the owners of the suit property, in favour of Raj Kumar Madaan Memorial Charitable Trust. When the said witness was offered for cross-examination, no question was put by the plaintiff about the non payment of the stamp duty. As per the sale deed, it was for consideration and payment was made by way of drafts, numbers of which were mentioned therein. None of the owners of the suit property have challenged the sale deed in favour of the Trust. The plaintiff has a right in the suit property as a tenant only and not beyond that. He is not party to the sale deed and, therefore, having no locus standi to challenge the validity of the sale deed, more so when as the owners were at liberty to alienate the same in favour of the Trust. Learned counsel for the appellant submitted that there could not be any estoppel against his client, who is a tenant on the suit property, from taking the plea that the sale deed said to have been executed by defendants No.3 to 5 through their attorney in favour of Raj Kumar Madaan Memorial Charitable Trust, was ineffective and, therefore, the transfer was non-existent in the eyes of law. In this regard, he has placed reliance on Subhash Chandra V R.S.A. No. 1935 of 2007 -5- Mohammad Sharif & others 1991 Civil Court Cases 5(S.C.). In the aforementioned judgment, the Hon'ble Supreme Court was seized of the matter relating to eviction of the appellant therein from a house after holding him to be a tenant under the respondents therein. The respondents had sought ejectment of the appellant. The appellant denied the title of the respondents-owners and their case that he was in possession of the property as their tenant. A decree for eviction was passed by the trial Court but it was set-aside in appeal by the first Appellate Court. The decision was reversed by the High Court in second appeal, which was challenged by the tenant by way of an appeal to the Hon'ble Supreme Court. The facts and circumstances of the said case are not applicable to the present case as the ejectment proceedings are not the subject matter of the present suit. The suit stands filed by the tenant for challenging the alienation of the suit property by the original owners in favour of the defendants-Trust. The concurrent findings of facts arrived at by the learned Courts below call for no interference in the present second appeal as these findings are based on proper appreciation of the evidence led by the parties and they do not suffer from any infirmity or illegality. None of the substantial questions of law as formulated by the appellant, arises for determination in the present second appeal. Accordingly, the judgments and decrees passed by the Courts below are affirmed and the appeal is dismissed. ( T.P.S. MANN ) July 30, 2009 JUDGE ajay-1