REGULAR SECOND APPEAL No. 4902 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4902 OF 2010 DATE OF DECISION: JANUARY 24, 2011 Jaswinder Singh & Others .... Appellants Versus Master Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sunil Chadha, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) Defendant No.1 to 4 having lost in both the courts below, are in second appeal. Suit was filed by Gurbax Singh who has since died and is represented by respondent Nos.1 and 2 as his legal representatives. The plaintiff alleged that defendant No.5 Sant Kaur was having two sons i.e. plaintiff Gurbax Singh and Swaran Singh. She give her land to them in equal shares i.e. half share each. However, defendant No.5 sold 19 Kanals 8 Marlas land i.e. half share to defendants No.1 to 4 vide sale deed dated 30.11.1988, whereas half share of plaintiff regarding 19 Kanals 8 Marlas suit land was affirmed in his favour through consent decree dated 16.02.1990 by defendant No.5. Thus defendant No.5 was left with no land. However, defendant No.5 sold 3 Kanals 9 Marlas land to defendants No.1 to 4 vide sale deed dated 05.12.1997. The said sale has been challenged in the suit alleging that defendant No.5 had no right to sell the same as she was not owner thereof. REGULAR SECOND APPEAL No. 4902 of 2010 -2- Earlier defendants No.1 to 4 had filed Civil Suit No.304 of 27.11.2000. The said suit was decided on the basis of compromise on 30.10.2002, but the same related to 19 Kanals 8 Marlas land of the share of the plaintiff's brother Swaran Singh which had been sold by defendant No.5 to defendant Nos.1 to 4 vide sale deed dated 30.11.1988. The plaintiff, therefore, sought declaration that he is owner cosharer in possession to the extent of 19 Kanals 8 Marlas land in joint land measuring 67 Kanals 17 Marlas and that sale deed dated 05.12.1997 by defendant No.5 in favour of defendant Nos.1 to 4 regarding 3 Kanals 9 Marlas land does not affect the rights of the plaintiff and compromise decree dated 30.10.2002 was obtained by fraud and mutations on the basis of sale deed dated 05.12.1997 and decree dated 30.10.2002 are liable to be set aside. Consequential relief of injunction was also claimed. Defendant Nos.1 to 4 contested the suit. It was admitted that defendant No.5 was having two sons i.e. Gurbax Singh and Swaran Singh. It was also admitted that defendant No.5 sold 19 Kanals 8 Marlas to defendant Nos.1 to 4 vide sale deed dated 30.11.1988. Other plaint allegations were broadly controverted. It was pleaded that plaintiff obtained collusive decree from his mother Defendant No.5 and the said decree included some of the land which had already been sold by defendant No.5 to defendant Nos. 1 to 4 vide sale deed dated 30.11.1988 and, therefore, defendant Nos.1 to 4 filed Civil Suit No.304 against plaintiff and his mother and others. The said suit was decided vide compromise decree dated 20.10.2002, which is legal and valid. It was also pleaded that defendant No.5 sold 3 Kanals 9 Marlas land to defendant No. 1 vide sale deed dated 05.12.1997. Plaintiff had knowledge of the said sale deed. Said land had not been transferred by defendant No.5 to the plaintiff vide decree dated 16.02.1990. Even otherwise, the said decree is REGULAR SECOND APPEAL No. 4902 of 2010 -3- collusive and plaintiff had no pre-existing right in the suit land and, therefore, he could not derive any right, title or interest therein, consent decree being unregistered. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sultanpur Lodhi vide judgment and decree dated 12.09.2007 decreed the plaintiff's suit declaring that he is owner co-sharer in possession to the extent of 19 Kanals 8 Marlas land on the basis of decree dated 16.02.1990 out of the joint land in question, and that sale deed dated 05.12.1987 and consequent mutation are illegal and null and void. Injunction restraining defendants from further alienating the suit land has also been granted. First appeal preferred by defendant Nos.1 to 4 has been dismissed by Learned Additional District Judge, Kapurthala vide judgment and decree dated 23.03.2010. Feeling aggrieved, defendant Nos.1 to 4 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Decree dated 16.02.1990 suffered by the defendant No.5 in favour of plaintiff regarding 19 Marlas 8 Kanals land in question has been proved on record. Consequently, thereafter defendant No.5 had no right to alienate 3 Kanals 9 Marlas land out of it to defendant No.1 vide sale deed dated 05.12.1997, as defendant No.5 was no longer owner thereof. Consequently the impugned sale deed has been rightly held to be illegal and null and void. Learned counsel for the appellants vehemently contended that mutation of decree dated 16.02.1990 passed in favour of the plaintiff was not entered and therefore, defendant No.1 purchased 3 Kanals 9 Marlas land out of it and he is bonafide purchaser thereof for consideration. It was also contended that if the said consent decree had been registered, it would have REGULAR SECOND APPEAL No. 4902 of 2010 -4- come to the knowledge of the general public and for this reason also, defendant No.1 is bonafide purchaser of the said land. This contention cannot be accepted because no such plea of defendant No.1 being bonafide purchaser of the said land, has been taken in the written statement. Consequently, the plaintiff had no occasion to depict that consent decree dated 16.02.1990 was in the knowledge of defendant No.1 at the time of sale deed dated 05.12.1997. Learned counsel for appellants also contended that decree dated 16.02.1990 being unregistered, plaintiff got no right, title or interest in the land for which the said decree was suffered. The contention cannot be accepted because defendants No.1 to 4/appellants have no right to challenge the said decree on this ground. On the other hand, valid consent decree could be suffered by defendant No.5 in favour of her own son Gurbax Singh-plaintiff on the basis of family settlement. Pleadings of the suit in which decree dated 16.02.1990 was passed have not been produced in evidence and consequently it cannot be said that the said decree required compulsory registration or that plaintiff had no pre-existing right in the land in question. Learned counsel for the appellants also referred to compromise decree dated 30.10.2002. However, the said decree pertained to 19 Kanals 8 Marlas land purchased by defendant Nos.1 to 4 vide sale deed dated 30.11.1988. The same is not in issue in the instant suit. Sale deed dated 05.02.1997, which has been challenged in this suit, pertains to other 3 Kanals 9 Marlas land. Consequently compromise decree dated 30.10.2002 does not help the appellants in any manner. Learned counsel for the appellants lastly contended that defendant No.5 had mortgaged 6 Kanals 18 Marlas land in question with Bank and, therefore, defendant No.5 could not suffer decree of 19 Kanals 8 Marlas land REGULAR SECOND APPEAL No. 4902 of 2010 -5- in favour of plaintiff. The contention is completely misconceived and devoid of merit, because even after mortgage, defendant No.5 was not divested of ownership rights in the mortgaged land. Consequently, she could validly suffer decree dated 16.02.1990 regarding the suit land, including the mortgaged land, in favour of the plaintiff although the decree would of course subject to rights of the mortgagee if any in the mortgaged land. For the reasons aforesaid, I find no merit in the instant second appeal. There is concurrent finding by both the courts below in favour of plaintiff. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below and is not shown to be vitiated in any manner by misreading or mis-appreciation of evidence. The said finding, therefore, does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 24.01.2011 'raj'