R.S.A.No.3615 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.3615 of 2008 (O&M) Date of decision: 10.5.2011 Urmila Devi and another ......Appellants Versus Gurdial Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Toor, Advocate, for the appellants. None for respondents **** SABINA, J. The plaintiffs had filed a suit for possession of the land measuring 3 kanals 13 ½ marlas out of khasra Nos. 1170 (7-5), 1171 (8-18) and 1179 (2-5). It was further prayed that the judgment and decree dated 13.2.1998 passed by the Civil Judge (Jr.Divn.) in civil suit No.11 of 15.1.1996 was not binding on the plaintiffs. The case of the plaintiffs, in brief, was that they were bonafide purchasers for consideration of 3 kanals 13 ½ marlas of R.S.A.No.3615 of 2008 (O&M) 2 land. The plaintiffs had purchased the said land from defendant No.2 vide sale deed dated 11.9.1997 for a consideration of ` 1,00,000/-. The possession of the suit land had been handed over to the plaintiffs by defendant No.2. The plaintiffs were not aware that any agreement to sell had been executed by defendant No.2 in favour of defendant No.1 Gurdial Singh on 18.7.1994. Since the plaintiffs had already purchased the suit property vide sale deed dated 11.9.1997, the sale deed dated 13.3.1998 could not be executed in favour of defendant No.1. Defendant No.1, in his written statement, denied the contentions in the plaint. It was averred that the sale deed dated 11.9.1997 had been executed by defendant No.2 in favour of the plaintiffs in collusion with each other to defeat his right. Defendant No.2 had agreed to sell the land measuring 4 kanals out of khasra No.1170 (7-5), 1171 (8-18) and 1180 (4-0) on 18.7.1994. However, defendant No.2 had failed to execute the sale deed in favour of defendant No.1. Hence, defendant No.1 filed a suit for specific performance of agreement to sell dated 18.7.1994 and the said suit was decreed on 13.2.1998 in favour of defendant No.1. In pursuance of the said decree, the sale deed was executed in favour of defendant No.1. Defendant No.2 was proceeded ex parte as he failed to appear despite service. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are bonafide purchaser of the R.S.A.No.3615 of 2008 (O&M) 3 property in dispute, if so whether the plaintiffs are entitled to possession of the same ? OPP 2. If the plaintiffs are not found to be in exclusive possession, whether they are entitled to joint possession? OPP 3. Whether the judgment land decree dated 13.2.1998 is not binding upon the plaintiffs ? OPP 4. Whether the sale deed executed by the defendants on the basis of this judgment, is liable to be cancelled ? OPP 5. Whether the suit is not maintainable ? OPD 6. Relief. The trial Court vide judgment and decree dated 16.11.2006 dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the same was also dismissed vide judgment and decree dated 29.1.2008 passed by the District Judge. Hence, the present appeal by plaintiffs Nos. 1 and 2. Learned counsel for the appellants has submitted that the plaintiffs had purchased 3 kanals 13 ½ marlas of land out of khasra Nos. 1170 (7-5), 1171 (8-18) and 1179 (2-5), whereas, defendant No.1 had agreed to purchase 4 kanals of land out of khasra Nos. 1170 (7-5), 1171 (8-18) and 1180 (4-0). The sale deed had been executed in favour of defendant No.1 through Court qua khasra Nos.1170, 1171, 1180. The sale deed had not been executed in favour of defendant No.1 qua khasra No.1179. Hence, the R.S.A.No.3615 of 2008 (O&M) 4 appellants were entitled to get possession of 1/5th share out of khasra No.1179 (2-5). The substantial question of law that arises in this case is “whether the Courts below have failed to appreciate the evidence on record ?” Ex.P-1 is the sale deed executed by Gurnam Singh in favour of the plaintiffs. A perusal of the said sale deed reveals that Gurnam Singh-defendant No.2 had sold 3 kanals 13 ½ marlas of land i.e. 1/5th share out of khasra No.1179 (2-5), 1170 (7-5) and 1171 (8-18). So far as defendant No.1 is concerned, defendant No.2 had agreed to sell him 1/5th share out of khasra No.1170 (7-5), 1171 (8-18), 1180 (4-0) to the extent of 1/5th share. After the suit filed by defendant No.1 for specific performance of agreement to sell dated 18.7.1994 was decreed, the sale deed was executed in favour of defendant No.1 through Court qua the said khasra numbers. Thus, a perusal of the sale deed executed by defendant No.2 in favour of the plaintiffs, Ex.P-1 and the agreement to sell executed by defendant No.2 in favour of defendant No.1 reveals that the agreement to sell in question had not been executed in favour of defendant No.1 qua khasra No.1179, whereas, the sale deed was executed by defendant No.2 in favour of the plaintiffs qua 1/5th share of khasra No. 1179 (2-5). Thus, the Courts below have failed to appreciate the evidence on record in its correct perspective as the suit of the plaintiffs, though could not be decreed qua khasra numbers 1170 and 1171, but the same was liable to be decreed qua khasra No. 1179. The substantial question R.S.A.No.3615 of 2008 (O&M) 5 of law stands answered accordingly. Hence, the present appeal is partly allowed. The impugned judgments and decrees passed by the Courts below are set aside. The suit of the plaintiffs is decreed as prayed for qua 1/5th share out of khasra No.1179 (2-5). (SABINA) JUDGE May 10, 2011 anita