R.S.A. No. 291 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 291 of 2009 (O&M) Date of Decision : 16.01.2009 Smt. Satto alias Satwant Kaur ....Appellant Versus Tarlochan Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Arun Palli, Senior Advocate with Mr. Parminder Singh, Advocate for the appellant. ..... MAHESH GROVER, J. This regular second appeal is directed against the judgments of the learned trial Court dated 17.8.1999 and the first Appellate Court dated 1.9.2008. The appellant, who was the plaintiff, filed a suit for joint possession to the extent of the shares which are detailed in the plaint and are reproduced herein below :- (A) 2/25 share in land measuring 112 Kls. 1 Ml. bearing Khata No.11, Khatauni Nos.40 to 48 Khasra Numbers 30R/23, 31R , 30R/10/2, 30R/22 Min Pahar, 4/2,5 30R/22 Min Dakan, 30R/11/1, 45R 15/2, 15/3, 16/3 41R , 30R , 30R 3,4,5/1,14 1/2, 2, 3/1 13/1, 18, 19 R.S.A. No. 291 of 2009 (O&M) -2- (B) 4/75 share of land measuring 3 Kls. 9 Mls. Khewat No.12, Khatauni No.4 Khasra Numbers 31R/4/1, 45R/16/2, (C) 1/120 share in land measuring 0 Kl. 9 Mls. bearing Khata No.13, Khatauni No.51, Khasra Number 264, (D) 2/75 share in land measuring 164 Kls. 16 Mls. bearing Khasra No.15, Khatauni No.54 to 68, Khasra Numbers 206, 31R - 207, 30R/10/1, 265/2, 7, 14, 17 30R/21/3, 27R/23/1/2, 27R/23/1/1, 31R , 3,8,13/1,13/4,23/2 41R/10/2, 41R - 42R/1/4-10, 30R , 6, 7 8, 9 208, 40R/5/1, 27/7, 27/18/2, 45R , 6/2,7, 15/1, 16/5 60R/4-5, (E) 4/75 share of land measuring 6 Kls. 6 Mls. Khewat No.16, Khatauni No.69, 70, Khasra No.31R/13/2, 30R/3/3, (F) 1/10 share of land measuring 8 Kls. bearing Khewat No.34, Khatauni No.104, Khasra Number 31R/6, (G) 2/27 share of land measuring 16 Kls. bearing Khewat No.133 Khatauni No.337, 338, bearing Khasra No.31R/18 or 37R/18 (whichever is correct) 41R/15, (H) 2/75 share of land measuring 16 Kls. bearing khewat No.133, Khatauni No.337, 338, bearing Khasra No.31R/2, 15R/10/2, as given and recorded in the copy of the jamabandi for the year 1984-85 of village R.S.A. No. 291 of 2009 (O&M) -3- Harpura, H.B.No.160, Tehsil Batala, District Gurdaspur. It was pleaded that Banta Singh son of Dhanna Singh was co-sharer in the suit land and had different shares in different khatas. He died about 8/9 years back leaving behind the plaintiff/appellant and respondents No.1 to 3 as the only legal heirs. The plaintiff/appellant and plaintiff/respondent No.8 were the daughters while respondents No.1 and 2 were the sons and respondent No.3 the widow of the deceased. It was pleaded that they were co-sharers to the extent of 2/5th share and were entitled to it. Respondents No.1 to 3 set up a Will to defeat the claim of the appellant and respondent No.8 which was also assailed by the plaintiff/appellant. On the basis of the said Will, respondents No.1 to 3 had got the mutation sanctioned in their favour. Some portion of the land was also sold by Tarlochan Singh in favour of respondents No.6 and 7. The learned trial Court framed the following issues :- 1. Whether the plaintiffs are the daughters of Banta Singh? OPP 2. Whether Banta Singh executed a valid Will dated 19.4.90, in favour of defendant no.1 to 3 as alleged? OPD 3. Whether the defendant no.7 is the bona fide purchaser for value without notice? OPD 4. Whether the plaintiffs are in joint possession? OPP 5. Relief. R.S.A. No. 291 of 2009 (O&M) -4- Upon appraisal of the evidence before it, the learned trial Court came to the conclusion that the Will as set up by respondents No.1 to 3 was shrouded by suspicious circumstances and accordingly discarded it. It was held that the plaintiff/appellant and respondent No.8 were entitled to their shares in the suit property as claimed by them. However, some portion of the land which was the subject- matter of sale-deed in favour of respondents No.6 and 7 was excluded from the claim of the appellant and respondent No.8 on the basis that the sale was held to be bona fide and protected by the provisions of Section 41 of the Transfer of Property Act. The sale-deed is Ex.D1/A on record. In appeal, the findings of the learned trial Court were affirmed by the first Appellate Court which has resulted in the filing of the present Regular Second Appeal. It was contended by the learned counsel for the appellant that the findings recorded by the Courts below regarding respondents No.6 and 7 being bona fide purchasers and the sale-deed being protected under the provisions of Section 41 of the Transfer of Property Act was erroneous for the reason that respondents No.6 and 7 are the sons of the first cousin of the appellant and respondent No.8. The relationship was proved but the respondents failed to disclose this relationship in their written statement. It was thus contended that since the parties were related closely, it cannot be said that they would be unaware about the factum of succession in favour of the appellant and respondent No.8 and that the sale deed which was executed by Tarlochan Singh in favour of respondents No.6 and 7 R.S.A. No. 291 of 2009 (O&M) -5- was vitiated and it cannot be held that respondents No.6 and 7 were bona fide purchasers. Reliance was placed on Kulwant Kaur and others v. Gurdial Singh Mann (dead) by LRs and others (2001) 4 Supreme Court Cases 262 to contend that in a regular second appeal if the High court comes to the conclusion that the findings were based on a wrong test, or on assumptions and conjectures and the findings tainted by perversity, the impugned judgment can be interfered with. He also placed reliance on Gurcharan Singh and others v. Surjit Kaur and others 2005(3) RCR(Civil) 628 to contend that to arrive at a conclusion that a purchaser is a bona fide purchaser, the knowledge of title, inspection of title from the revenue record to ascertain entries of ownership and possession in the name of the vendor is not enough to hold that the transferee is a bona fide purchaser and that a person residing in the same village is presumed to have knowledge of entitlement of heirs and co-sharers in the land irrespective of revenue entries in the name of one. I have heard the learned counsel for the appellant and have perused the impugned judgments. The vendor in this case is Tarlochan Singh who had set up a Will in his favour which has been discarded in the present proceedings. The sale of the property took place on 19.4.1990 and even though respondents No.6 and 7 were related to the appellant, yet it cannot be expected that they would be knowing that the Will on the basis of which revenue entries were made in favour of the vendor was a fabricated document or a genuine one. In this view of the matter, if respondents No.6 and 7 entered into a transaction on the belief that R.S.A. No. 291 of 2009 (O&M) -6- from the Will had flowed the title of the property in favour of Tarlochan Singh and the same had also been entered into as mutation in the revenue record which they had inspected before the purchase, then in such an eventuality they had acted like a prudent buyer and it cannot be said that merely because the Will had been discarded in subsequent proceedings in the year 1998 by the learned trial Court and 2008 by the first Appellate Court and that their sale would be vitiated. The findings of the Courts below on the issue by holding that the sale was protected by the provisions of Section 41 of the Transfer of Property Act cannot be held to be perverse to warrant an interference in a regular second appeal. Both the Courts have concurrently held to the same effect. No substantial question of law has been shown to have been arisen in the present appeal. Consequently, the same is devoid of any merit and is dismissed. 16.1.2009 (MAHESH GROVER) JUDGE dss