RSA No. 3871 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3871 of 2010 Date of decision: 17.10.2011 Lakhmi Chand ........ Appellant Versus Bhagwan Dass and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mr. Rajneesh Chadwal, Advocate for the appellant. JORA SINGH, J. Lakhmi Chand-appellant filed this Regular Second Appeal, to challenge the judgments and decrees dated 18.2.2008 and 29.5.2010, passed by the Courts below being illegal, against the law, facts and circumstances of the case. Brief facts of the case are that appellant-plaintiff filed main suit for declaration bearing Civil Suit No. 184 of 2006 on 4.5.2006, against Bhagwan Dass-respondent No.1 and Smt. Reshma Devi- respondent No.2, on the allegation dated sale deed bearing Vasika No. 1248 dated 25.11.2005, executed by respondent-defendant No.1 (Bhagwan Dass) in favour of respondent-defendant No.2 (Smt. Reshma Devi) is illegal, null and void, against law, facts, based upon misrepresentation, fraud and forgery at the hands of respondent- defendant No.1. Appellant-plaintiff and respondent-defendant No. 1 RSA No. 3871 of 2010 -2- have jointly purchased land measuring 1 kanal situated in village Ateli within the revenue estate of village Dhanonda, bearing Khewat No. 65, Khatoni No. 128, fully described in sale deed dated 26.6.2000, executed by Kamla and Moti sons of Harnarain. After purchase of the said land, there was a family settlement amongst the appellant-plaintiff and respondent-defendant No.1 and as per family settlement actual possession of the entire land purchased as per sale deed dated 26.6.2000, was delivered to the appellant-plaintiff and in lieu thereof appellant-plaintiff had given his other property to respondent-defendant No.1. Appellant-plaintiff, had also paid ` 1 lac vide bank draft dated 9.5.2002 to respondent-defendant No.1. Construction was raised over the suit land by the appellant-plaintiff and he is carrying on business over the suit property and is also keeping residence in it since its purchase. Respondent-defendant No. 1 had relinquished his title in the above said property. Respondents filed joint written statement and suit was contested inter alia on the ground that the same is not maintainable. Appellant and respondent No. 1 had purchased 20/159th share of land under Khewat No. 65 Khatoni No.128 out of land measuring 7 kanal 19 marlas for a consideration of ` 3 lacs but there was no family settlement or compromise. From the pleadings of the parties issues were framed 2.11.2006 and dates were given to the appellant to produce evidence but no evidence was led and ultimately suit was dismissed under Order 17 Rule 3 CPC. Learned counsel for the appellant argued that only two RSA No. 3871 of 2010 -3- dates were given to the appellant to lead its entire evidence. Learned counsel for the appellant submits that appellant be given only one date to conclude its evidence and requests that impugned judgments and decrees be set aside. After going through the file, I am of the opinion that submission of the learned counsel for the appellant seems to be not genuine one. Allegation of the appellant is that appellant and respondent No. 1 had jointly purchased land measuring 1 kanal situated within the revenue estate of village Dhanonda, bearing Khewat No. 65, Khatoni No. 128 but sale deed dated 25.11.2005, executed by respondent No. 1 in favour of respondent No.2 is null and void. Earlier appellant and respondent No. 1 had jointly purchased the disputed property as per sale deed dated 26.6.2000 but later on there was a family settlement amongst the brothers. Actual possession of the disputed property was handed over to the appellant and in lieu of the said property, appellant has given his other property to respondent No. 1 besides payment of ` 1 lac as per bank draft dated 9.5.2002. At the time of arguments, enquiry was made to the learned counsel for the appellant as to whether appellant can produce the copy of jamabandi or exchange deed to show that disputed property measuring 1 kanal was purchased by the appellant and respondent No. 1 and there was a family settlement and in lieu of the disputed property, appellant had given other property to respondent No. 1 but learned counsel for the appellant frankly stated that appellant is not in a position to produce any document to show that disputed property was purchased by the RSA No. 3871 of 2010 -4- appellant and respondent No. 1 and there was a family settlement amongst the appellant and respondent No.1. Sale deed dated 25.11.2005, was executed by respondent No. 1 in favour of respondent No.2. Respondent No. 1 had the locus standi and cause of action to file suit for declaration that sale deed dated 25.11.2005, is null and void based upon misrepresentation, fraud, forgery etc. but no explanation why sale deed dated 25.11.2005, was not challenged by respondent No.1. Appellant is not in a position to produce any document to show as to which property was given to respondent No. 1 by him in lieu of the disputed property, actual possession of which property was given to him as per family settlement amongst the brothers. After family settlement, if any, no document that the appellant is in possession of the disputed property or respondent No. 1 is in actual possession of the property which was earlier owned by the appellant. If the property was jointly purchased by the appellant and respondent No. 1 and respondent No. 1 had executed sale deed dated 25.11.2005, in favour of respondent No. 2 then on the basis of sale deed, respondent No. 2 has stepped into the shoes of respondent No. 1. So, remedy with the appellant is to file suit for partition. Sale deed dated 25.11.2005, was not executed by the appellant. Respondent No. 1 appeared before the trial Court and contested the suit of the appellant on the allegation that actual possession of the entire suit property was not delivered to the appellant and the appellant had not given his other property to the answering respondent No.1. Appellant is the real brother of respondent No.1. Sale deed in question was executed by respondent No. 1 in RSA No. 3871 of 2010 -5- favour of respondent No.2. To harass and humiliate respondent No.2, main suit for declaration was filed by the appellant. From the pleadings of the parties issues were framed on 2.11.2006, then the case was adjourned to 2.5.2007, for evidence of the plaintiff-appellant with a direction to file list of the witnesses within a period of one month but the same was not filed. On 2.5.2007, no witness on behalf of the appellant was present then the case was adjourned to 24.9.2007 but on 24.9.2007 again there was no evidence on behalf of the appellant and the case was adjourned to 18.2.2008, for evidence of the appellant and last opportunity was also given but on 18.2.2008, there was no evidence on behalf of the appellant. When evidence of the appellant was closed by order then Ist Appellate Court, rightly observed that sufficient opportunities were given to the appellant and no case for remand is made out. As discussed earlier, there is no documentary proof that the appellant was in possession of the land in dispute and the possession of other land was handed over to respondent No.1 in lieu of disputed property as per family settlement amongst the real brothers i.e. the appellant and respondent No.1. If the appellant is in actual possession of the disputed property even then sale deed dated 25.11.2005, executed by respondent No. 1 in favour of respondent No. 2 cannot be set aside at the instance of the appellant particularly when respondent No. 1 pleaded that sale deed in favour of respondent No. 2 was rightly executed. In view of all discussed above, I am of the opinion that there is no illegality or infirmity in the impugned judgments and the RSA No. 3871 of 2010 -6- same are upheld. There is no substantial question of law to be framed for adjudication. For the reasons recorded above, appeal without merits is dismissed. October 17, 2011 ( JORA SINGH ) rishu JUDGE