IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3085 of 2010 (O&M) Date of decision: 2nd August, 2011 Hukam Singh and others … Appellants Versus Satya Pal @ Satte and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. C.B. Goel, Advocate for the appellants. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Civil Misc. No.9126-C of 2010 For the reasons stated in this application, the same is allowed and delay of two days in filing the appeal is condoned. Regular Second Appeal No.3085 of 2010 Present regular second appeal has been filed by defendants No.2 to 6, 9 and 10, and the legal representatives of defendants No.7 and 8 to the suit. To put the facts in right perspective, before their narration, it will be necessary to give inter-se relationship of the defendants. Rati Ram was father of Ami Chand @ Amin Chand, Smt.Lodhi @ Lahori and Maha Devi. Maha Devi had died and she was represented in the suit by her sons namely Narain Singh, Rehru and Ram Karan, i.e. defendants No.7 to 9 to the suit, and her daughter Daya Wanti defendant No.10. Smt.Lodhi has been arrayed as defendant No.6 Regular Second Appeal No.3085 of 2010 (O&M) to the suit. From the loins of Ami Chand, four sons were born namely Hukam Singh, Raghbir, Hoshiar Singh and Rohtash, who have been impleaded as defendants No.2 to 5. It is not disputed that sons of Ami Chand had filed a suit (Ex.PW5/A) on 17th August, 1976 for declaration and permanent injunction against their father Ami Chand and his two sisters namely Smt. Lodhi @ Lahori and Maha Devi. At that time Maha Devi had died and thus, Narain Singh, Rehru, Ram Karan and Daya Wanti, defendants No.7 to 10 were also impleaded. In the suit the plaintiffs prayed that sisters of their father, i.e. Smt. Lodhi @ Lahori and Maha Devi in order to keep their relations with their parental house had surrendered their 2/3rd share in the estate of their father Rati Ram to Ami Chand. Copy of that suit has been exhibited as Ex.PW5/A. It is stated that progeny of Maha Devi and Smt.Lodhi suffered a decree in favour of their nephews namely, Hukam Singh, Raghbir, Hoshiar Singh and Rohtash. Plaintiffs-respondents to the present suit stated that their father had purchased land measuring 8 Kanals 11 Marlas, description and details whereof have been given in para No.1 of the plaint, from Ami Chand and defendants No.2 to 5 vide a registered sale deed dated 3rd August, 1979 for a consideration of Rs.10,000/-. It was further pleaded that due to an error, in the mutation the revenue authorities had wrongly recorded father of the plaintiffs as owner of 6 Kanals 10 Marlas of land instead of 8 Kanals 11 Marlas. It was stated that they enjoyed possession of the entire suit land i.e. 8 Kanals 11 Marlas which was delivered to them by defendants No.2 to 5 and their father vide a registered sale deed. It was further stated that later-on, defendants No.3 and 6 in collusion with each other sold the land measuring 17 Marlas out 2 Regular Second Appeal No.3085 of 2010 (O&M) of the disputed land in favour of defendant No.1 Daya Ram vide a registered sale deed dated 12th August, 1996. It was pleaded that defendants No.3 and 6 had no right or title to transfer said 17 Marlas of land, therefore, the sale deed executed by them on 12th August, 1996 was illegal, null and void, and was not binding upon the plaintiffs. It was stated by the plaintiffs that defendant No.6 Smt.Lodhi in Civil Suit No.176 of 1976 Ex.PW5/A, had transferred her rights, title and interest to defendants No.2 to 5 and she ceased to be owner of the property. Mr. C.B. Goel, Advocate appearing on behalf of the appellants, has produced the written statement filed by defendants No.1 to 6 to the suit, in which a definite stand was taken that defendants No.2 to 5 and their father Ami Chand were very simple and straightforward villagers whereas Sampat Ram, father of the plaintiffs, was a very clever person; therefore, in the year 1979 Sampat approached defendants No.2 to 5 and their father for sale of their land measuring 6 Kanals 01 Marla situated in the revenue estate of Village Mau, Tehsil Pataudi, District Gurgaon for a consideration of Rs.10,000/-. Defendants No.2 to 5 and their father agreed to the proposal of Sampat and the sale deed was executed. However, in the sale deed the area was wrongly mentioned as 8 Kanals 11 Marlas, in fact the sale was for 6 Kanals 01 Marla of land and therefore, when this discrepancy was noticed, mutation was granted only qua 6 Kanals 01 Marla of land. It was stated that the sale deed dated 3rd August, 1979 was beyond 1/9th share of the father of defendants No.2 to 5 and therefore, was not binding. After conclusion of the pleadings, the trial Court formulated following issues: 3 Regular Second Appeal No.3085 of 2010 (O&M) “1. Whether sale deed dated 2.8.96 executed by defendant No.3 & 6 in favour of defendant No.1 is illegal, null and void and that the plaintiffs are owners in possession of the suit land? OPP 2. Whether plaintiffs are entitled to get the revenue entries corrected? OPP 3. Whether the plaintiffs are entitled for restraint against the defendants from interfering into their possession upon the suit land? OPP 4. Whether the suit is not maintainable for want of locus standi and cause of action in favour of plaintiffs? OPD 5. Whether the suit is barred by time and is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Whether the plaintiffs have concealed the material facts and as such are estopped from filing the present suit? OPD 7. Relief.” Plaintiff No.1 himself appeared as PW-4 and also examined five other witnesses. They also tendered various documents. Defendant No.2 appeared as DW-1 but no other witness was examined by him. He had also tendered various documents, which were taken on record as Ex.D1 to Ex.D11. The trial Court held that the decree Ex.P1 passed in Civil Suit No.176 of 1976 has not been disputed by either of the parties. Noticing contention of defendants No.2 to 6 that genuineness of the sale deed Ex.PW3/A is matter of dispute on the ground that therein wrongly 8 Kanals 11 Marlas of land was recorded instead of 6 Kanals 10 Marlas because of a fraud, the trial Court held that this plea of fraud is not tenable as the defendants have failed to elaborate the same. Furthermore, defendants made no grudge against the sale deed dated 3rd August, 1979 as same was never challenged. 4 Regular Second Appeal No.3085 of 2010 (O&M) This Court is of the view that the findings given by the trial Court are just and appropriate as when the sale deed was executed in view of the decree Ex.P1, defendants No.2 to 5 had become owners of the property. Furthermore, sale deed Ex.PW3/A was executed by Ami Chand along with defendants No.2 to 5. The trial Court had rightly held that on the basis of preponderance of probabilities the sale deed Ex.PW3/A, which was executed voluntarily, suffers from no infirmity. The Court further held that in view of the decree Ex.P1, whereby Smt.Lodhi and the legal representatives of Maha Devi had relinquished their share in favour of defendants No.2 to 5, they had become owners of the entire 2/3rd share of Smt. Lodhi and Maha Devi in the suit property. Therefore, in mutation No.401, the share of Smt. Lodhi and Maha Devi was wrongly mentioned. After the above discussion, the trial Court observed as under: “31. In my considered opinion, the mistake committed by the revenue authorities at the time of sanction of mutation No.401 by mentioning the wrong share of the vendor and addition of name of ‘Ami Chand’ as one of the vendor is the generator of the entire controversy. Had the mutation No.401 been sanctioned exactly in accordance with the contents of the decree Ex.P1, there was no scope of any dispute between the parties. 32. XXXX XXXX XXXX XXXX XXXX XXXX 33. Since by virtue of sale deed Ex.PW3/A, the defendants No.2 to 5 and their father sold their entire share in the suit land in favour of father of the plaintiffs, my considered opinion by virtue of sale deed Ex.PW3/A, the father of the plaintiffs became the owner of the entire suit land except the land comprising in killa No.36/26.” 5 Regular Second Appeal No.3085 of 2010 (O&M) The Court further held that since there was a recital in the sale deed that the possession has been given, the plaintiffs are owners in possession of the suit property. Thus, the trial Court held that the sale deed dated 12th August, 1996 executed by defendants No.3 and 6 in favour of defendant No.1-Daya Ram was illegal, null and void. Therefore, issue No.1 was partly decided in favour of the plaintiffs. Issue No.2 was decided in favour of the plaintiffs and they were held entitled to correction in the revenue record. Qua issue No.3, it held the plaintiffs to be owners in possession of the suit property. Issue No.4 was decided against the defendants and it was held that the plaintiffs are entitled to injunction. Issue No.5 was not pressed by counsel for the defendants and therefore, the same was decided in favour of the plaintiffs. The Court further held that since rights of the parties emanated from the decree Ex.P1 and sale deed Ex.PW3/A, they are in possession of the suit property and their suit is not barred by way of limitation. Issue No.6 was not pressed by the defendants, and hence, the same was also decided against them. Thus, the trial Court held the plaintiffs to be owners in possession of the suit property and restrained the defendants perpetually from interfering into the suit property. Aggrieved against the same, all the defendants except defendant No.1-Daya Ram filed an appeal. The same was dismissed and the findings returned by the trial Court were upheld. Mr.Goel has stated that the decree Ex.P1 was collusive in nature and was granted in just two days, therefore, defendants No.7 to 10, being legal representatives of Maha Devi, and Lodhi Devi-defendant No.6 were not divested of their rights in the suit property. Therefore, it is 6 Regular Second Appeal No.3085 of 2010 (O&M) stated that the sale deed dated 12th August, 1996 effected by Smt. Lodhi-defendant No.6 in favour of Daya Ram-defendant No.1 is valid and legal. Before the arguments raised by Mr.Goel are dealt with, there is an usual feature of this case which is required to be noticed at the outset. Whatever was the purported share of Smt.Lodhi, she had transferred the same to Daya Ram-defendant No.1. Daya Ram has not challenged the findings of the trial Court by filing any appeal before the lower appellate Court or before this Court. Therefore, there was no title which vested in Smt.Lodhi after she had executed the sale deed in favour of Daya Ram. At the cost of repetition, it is stated that Daya Ram is not a party before this Court. Furthermore, defendants No.2 to 5 had instituted a civil suit Ex.PW5/A against sisters of their father namely, Smt.Lodhi-defendant No.6 and legal representatives of Maha Devi, i.e. defendants No.7 to 10. Smt.Lodhi and the legal representatives of Maha Devi suffered a statement in favour of nephews of Smt.Lodhi and Maha Devi. They agreed to a specific pleading in civil suit Ex.PW5/A that Smt.Lodhi and Maha Devi had surrendered their shares in their parental property. Civil Court decree Ex.P1 has not been assailed by Smt.Lodhi and legal representatives of Maha Devi and as on today the said decree stands. Furthermore, the decree Ex.P1 was passed in the year 1976, therefore, it does not lie in the mouth of the plaintiffs to say that the decree Ex.P1 was collusive in nature. Moreover, this argument was nowhere raised before both the courts below. It is stated that the suit filed by the plaintiffs was barred by way of limitation. Sampat, father of the plaintiffs had purchased the property vide a registered sale deed dated 3rd August, 1979. The 7 Regular Second Appeal No.3085 of 2010 (O&M) property which was sold to them was subsequently sold by defendants No.3 and 6 to defendant No.1-Daya Ram. As stated earlier, Daya Ram has not challenged the judgments of both the courts below. Furthermore, because of earlier sale executed in 1979 on strength of decree Ex.P1, no right vested in defendants No.3 and 6 to execute sale deed in 1996. The plaintiffs continued to be in possession of the suit property as it has been rightly held that there is a recital in the sale deed that the possession has been delivered to them. Even otherwise, there was no quarrel that they were in possession of 6 Kanals 10 Marlas of land. It is only when their possession was threatened, they had filed the present suit. Furthermore, they had only sought declaration that the entry in the revenue record was not correct. Thus, the courts below have rightly held that the suit filed by them is not barred by way of limitation. During the course of arguments, no question of law, much less a substantial one, has been raised for consideration of this Court. Hence, there is no merit in the present appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE August 2, 2011 rps 8