R.S.A. No. 1522 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1522 of 2010 (O&M) Date of decision : 24.1.2011 Gurmej Singh ......Appellant Versus Davinder Nath and others .......Respondents ******* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. O.S. Batalvi, Advocate, for the appellant. **** SABINA, J. Plaintiff filed a suit for declaration to the effect that he was owner in possession of the suit property. The case of the plaintiff, in brief, was that the plaintiff and defendant No.3 are real brothers. They were owner of land measuring 5 kanals 12 marlas bearing khasra No.97. On 17.1.1981 a family settlement was arrived at between the parties. Portion shown as mark 'A' in the site plan came to the share of the plaintiff and the portion shown as mark 'M' came to the share of defendant No.3, whereas portion shown as mark 'S' came to the share of defendant No.2. The plaintiff as well as defendants No.2 and 3 took possession of their respective plots which had come to R.S.A. No. 1522 of 2010 (O&M) 2 them in the family settlement. The said family settlement had, thus, been duly acted upon between the parties. Defendant No.2 had sold the plot given to her shown as letters 'MNOQ' to different persons. Thus, defendants No. 2 and 3 had no share left in the plots allotted to them. Defendant No.1 in collusion with defendant No.2 and her sons alleged that he had purchased the plot shown as 'ABCDE' in the site plan and were threatening to dispossess the plaintiff. Hence, the suit was filed by the plaintiff. Defendants No.3 in his written statement, admitted the claim of the plaintiff. Defendants No.1, in his written statement, admitted the relationship between the plaintiff and defendants No.2 and 3. It was denied that the plaintiff and defendant No.3 were owners of the suit property. It was averred that defendant No.2 was owner in possession of the suit property and had sold the same to defendant No.1 vide sale deed dated 26.3.1999 for a consideration of ` 3,00,000/-. After purchase of the property in dispute, defendant No.1 had raised a boundary wall over the suit property and had also affixed a door. The suit had been filed by the plaintiff to harass defendant No.1. Defendant No.2, in her written statement, denied the factum of family settlement on 17.1.1981. It was denied that defendant No.2 had sold her entire share out of the suit property. Defendant No.2 had executed sale deed in favour of defendant No.1 and had also handed over the possession of the suit property to defendant No.1. On the pleadings of the parties, following issues were framed R.S.A. No. 1522 of 2010 (O&M) 3 by the trial Court:- “1.Whether the plaintiff is entitled for declaration and permanent injunction as prayed for ? OPP 2. Whether the plaintiff is estopped by his act and conduct to file the present suit as alleged ? OPD. 3. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 26.4.2005. Appeal filed by the plaintiff challenging the said judgment and decree was allowed by the Additional District Judge, Fast Track Court, Gurdaspur and the suit of the plaintiff was decreed for declaration that he was owner in possession of plot pertaining 1 kanal 10 marlas detailed in the head note of the plaint and defendant No.1 was restrained from interfering in the physical possession of the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff has placed reliance on writing dated 17.11.1981. The case of the plaintiff was that as per the said writing, the partition effected between the parties was reduced into writing. Learned Additional District Judge, after appreciating the evidence on record, has given a finding of fact that defendant No.2 was not well within her rights to execute the sale deed as she was not left with any title in the suit property. Defendant No.2 had already sold her share in the suit property by executing the sale deeds in the names of different persons. Learned counsel for the appellant has failed to controvert the said finding of R.S.A. No. 1522 of 2010 (O&M) 4 fact during the course of arguments. In these circumstances, the rights of defendant No.1 are not protected on the basis that he is a bona fide purchaser. The vendee cannot derive a better title than a vendor in the suit property. Since the vendor-defendant No.2 had no share in the suit property, the sale deed executed by defendant No.2 in favour of defendant No.1 cannot pass on any rights in favour of defendant No.1. Hence, the sale deeds executed by defendant No.2 had no effect on the rights of the plaintiff. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 24, 2011 Anand