RSA No.2304 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2304 of 2010 (O&M) Date of decision 11.7.2011. Sukhpal Singh ...... Appellant. versus Mithu Singh and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Mukand Gupta, Advocate for the appellant. K.C.PURI . J. This appeal is directed by plaintiff/appellant against the judgment and decree dated 8.2.2007 passed by Shri M.S. Chauhan, Additional District Judge, Mansa vide which the appeal preferred by the plaintiff/appellant against the judgment and decree dated 31.8.2006 passed by Shri Hira Singh Gill, Civil Judge ( Senior Division ) Kapurthala was dismissed. 2. Brief facts of the case of the plaintiff are that Mithu Singh defendant No.1 was the owner in possession of the suit property measuring 172 kanals 15 marlas to the extent of ½ share, which was joint Hindu family RSA No.2304 of 2010 2 property. The defendant No.1 being a Karta of the family, managed the property in dispute. The plaintiff and defendant No.9 were the co-sharers in the property in dispute being the members of Hindu Joint Family and are entitled to the share in the property in dispute. In a family settlement defendant No.1 gave 1/6th share to the plaintiff and defendant No.9 and defendant No.1 gave 1/6th share to the plaintiff and defendant No.9 and regarding this civil court passed a decree on 11.5.1987 in a civil suit No. 843 of 19.1.1987 against defendant No.1 but the entries were not made in the revenue record rather Mithu Singh defendant No.1 has been shown as owner in possession of ½ share of 172 kanals 15 marlas of suit land. Mithu Singh defendant No.1 through rapat roznamcha No. 350 dated 11.6.1993 and mutation No. 3080 exchanged the land measuring 3 kanals 13 marlas 70//1/1(1-10) 2/1/1(2-4) and received the land measuring 3 kanals 13 marlas 38//3/2(1-10)4/1(2-3) therefore the land measuring 3 kanals 13 marlas 78//3/(2-7) has been excluded from the joint khata and has been shown in the names of defendant No.2 and 3 and the land measuring 3 kanals 14 marlas 70//1/1 2/1/1/ has been shown in the name of defendant No.1. As such through unregistered exchange rapat roznamcha No. 441 dated 7.5.1990 agreement dated 5.9.1990 vide mutation No. 2970 , 66//18/2/(2-18) 19/1(3-16) 22(6-6) ½ share of 13 kanals 78//3/1(6-10) has been received from defendants No.2 and 3, hence the suit land 78//3/1(6-10) has been excluded from the suit land and has been shown in the names of defendants No. 2 and 3. Mustil and Killas Nos 66//18/2, 19/1,22, ½ share of 13 kanals has been shown in the name of defendant No.1 Mithu Singh in the revenue record. Defendant No.1 sold 6 kanals 13 marlas of land to RSA No.2304 of 2010 3 defendants No. 2 and 3 through sale deed dated 10.5.1990 and mutation No.2973. Defendant No.1 also sold 3 kanals 14 marlas of land to defendant No.2 and 3 through sale deed on 7.5.90 vide mutation No. 2972. he also sold 7 kanals 18 marlas to defendant no.2 and 3 through sale deed dated 10.6.93 mutation No. 3085 and sale deed No. 1197 vide mutation No. 3154. Mithu Singh defendant No.1 sold the 23 kanals 6 marlas of land through sale deed No. 5369 and 21 kanals 11 marlas through sale deed No. 5332 dated 15.3.96 vide mutation No. 3172 to defendants No. 2 and 3. After selling the suit land through both sale deeds there was no suit property in the name of defendant No.1 rather he has sold the suit property more than his share. He has no right to alienate the remaining suit property. Defendants No. 1 and 8 have partitioned the joint khata through family partition writing dated 1.12.95 rapat No. 139 of 13.12.1995 mutation No. 3164 on the decision dated 21.2.96 of AC second Grade. As per partition, portion of Mithu Singh has been assessed in which exchanged suit property aforesaid and after 31.12.95 which was sold or mortgaged and last two sale deeds and mutations No. 3170 and 3172 have been included which is to be excluded from his portion (Tuk) though at the time of partition plaintiff and defendant No.9 were not present, so they are not bound to that partition. In case the proceedings of partition be presumed to be correct the suit land measuring 16 kanals 4 marlas which has been sold to defendants No. 4 to 7 vide sale deed No.73 of 4.4.97, the plaintiff and defendant No.9 are entitled to owners in possession in equal shares. The said sale deed is null and void and defendant No.1 has no locus standi to alienate the suit property more than his share as defendant No.1 has already alienated the suit property RSA No.2304 of 2010 4 more than his share. Defendants No. 4 to 7 have no right of ownership through the said sale deed. Defendants No. 4 to 7 are not entitled to redeem the land measuring 16 kanals 4 marlas which was under mortgage as plaintiff and defendant No.9 are entitled to ownership and possession of said 16 kanals 4 marlas of land in equal shares. Mithu Singh defendant No.1 after executing the sale deed dated 4.4.97 has sold the suit land 13 kanals in ½ shares to defendants No. 2 and 3 and plaintiff is owner in possession of the same. The land which was received through exchange to defendant No.1 from defendants No. 2 and 3, defendant Nos. 1 to 3 have not right to alienate the same. Plaintiff has every right to file the present suit. Defendants No. 2 to 7 are at the verge to take forcible possession of remaining land after redemption of 8 kanals out of ½ shares of 13 kanals and 16 kanals and 16 kanals 4 marlas of said land whereas the plaintiff is owner in possession of the disputed land and defendants bent upon to alienate the disputed land and are at the verge of cause loss of the plaintiff. They were requested not to do so, but they bluntly refused to do so, hence the present suit has been filed. 3. On notice, defendants appeared and filed separate written statements by taking legal objection that judgment and decree dated 11.5.87 is the result of impersonation. Plaintiff and defendant No.9 have no concern with the disputed suit land, suit is not maintainable as the plaintiff has challenged the partition order and mutations Shinder Kaur wife of Sukhpal Singh is necessary party who has not been made party. Present suit has been filed by concealing true facts from the court and to harass the defendants. Suit is false, hence, defendants are entitled to special costs under Section 35 RSA No.2304 of 2010 5 A CPC. Plaintiff and defendant No.9 have no interest in the suit property nor they are in possession of the same. Plaintiff and defendant No.9 are not the members of the Hindu Joint Family rather they are Jat Sikhs and following the ceremonies of Jat Sikhs, so plaintiff and defendants No. 9 have no pre-existing right in the property in dispute. Defendant No.1 also denied any family settlement between the parties nor he engaged any counsel in said civil suit No. 843 of 19.1.1987 decided on 11.5.87, he never appeared in the court nor he gave any statement in the court. Defendant No.1 admitted the sale deeds executed by him in favour of defendants No. 2 and 3 and 4 to 7. Defendants No. 2 to 7 also filed a separate written statement by taking legal objections that suit is likely to be dismissed as plaintiff has no right to file the present suit, defendants are bona fide purchasers. As the sale deeds have been challenged by the plaintiff, so court fee is necessary to be fixed on the suit. Plaintiff has not come to the court with clean hands, the plaintiff has no possession on any part of the suit property in dispute. The property in dispute is not ancestral and coparcenary property. The case was also contested on merits by pleading that the suit land measuring 172 kanals 15 marlas belongs to defendant no.1 who was the owner in possession of ½ share, defendants are Jat Sikhs and they are not the members of the Hindu Joint family and they are following the ceremonies of Jat Sikh. No decree has been suffered by defendant No.1 in favour of plaintiff and defendant No.9, sale deeds and mutations are correct. The mutations and partition proceedings are also correct. The plaintiff has no right to challenge the sale deeds, defendants No. 2 to 7 are owner in possession of the suit land on the basis of sale deeds. Defendant RSA No.2304 of 2010 6 No.8 also filed a separate written statement by taking legal objections that plaintiff has no locus standi to file the present suit, defendant No.8 is owner in possession of the suit property as per partition proceedings, the alleged decree dated 19.1.1987 has no affect upon the right of defendant, the suit property which was partition in the name of Mithu Singh defendant No.1 is adjustable, plaintiff has not made entries in the revenue record, so plaintiff is stopped by his own act and conduct from filing the present suit, defendant has been unnecessary made party, hence suit is liable to be dismissed being misjoinder of necessary party. The alleged decree dated 11.5.87 shall have no affect upon 81 kanals 2 marlas, remaining paras of plaint were denied. Defendant No.9 also filed separate written statement by pleading that he has no objection if the suit be decreed and submitted the claim of the plaintiff. 4. Replications were also filed in which averments of the plaint were reiterated and contention of written statement were denied. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff and defendant No.9 are owners in possession to the extent of 1/6 shares in the suit property on the basis of decree of civil suit No.843 dated 19.1.1987 as alleged ?OPP 2. Whether the alleged sale deeds No.73 dated 4.4.1997 and sale deed No.358 dated 5.5.1997 by defendant No.1 are not binding on the rights of the plaintiff and defendant No.9 ?OPP 3. Whether the plaintiff is entitled to declaration prayed for ?OPP 4. Whether the plaintiff is entitled to injunction prayed for ? OPP 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction ?OPD. RSA No.2304 of 2010 7 6. Whether the suit is within time ?OPP. 7. Whether the suit is not maintainable in the present form ?OPD 8. Whether the plaintiff has no cause of action to file the present suit ?OPD. 9. Whether the defendants No.2 to 7 are the bona fide purchasers for value and their rights are protected as per provisions of section 41 of the Transfer of Property Act ? OPD 10. Whether the suit is bad for misjoinder and nonjoinder of necessary parties ?OPD 11. Whether the civil court has got no jurisdiction to entertain and try the suit ?OPD 12. Whether the defendants are entitled to special costs U/s 35-A, CPC ?OPD 13. Relief. 5. Both the parties have led their oral as well as documentary evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties dismissed the suit of the plaintiff vide judgment and decree dated dated 31.8.2006. 6. Aggrieved by the said judgment and decree, the plaintiff went in appeal and the learned Additional District Judge, Mansa vide judgment and decree dated 8.2.2007 also dismissed the appeal of the plaintiff. 7. Still feeling dis-satisfied with the aforesaid judgments and decrees passed by the Courts below, the plaintiff/appellant has preferred the present appeal. 8. The appellant in paragraph No.6 of the grounds of appeal has mentioned that following substantial questions of law have arisen in the RSA No.2304 of 2010 8 present appeal :- i) Whether the property in dispute received by respondent no.1 from his father who inturn inherited the same from his father, is ancestral in nature ? ii) Whether the sale deeds dated 4.4.1997 and 5.5.1997 have overriding effect on the pre-existing valid decree dated 11.5.1987 resulting from the family settlement ? Iii) Whether the judgments passed by lower courts are illegal and arbitrary and against the facts and evidence on file ? 9. Learned counsel for the appellant has submitted that by the operation of decree dated 11.5.1987, the plaintiff/appellant is the owner of the suit property. The plea of bona fide purchaser was not available to the defendants. 10. I have carefully considered the said submission but do not find any force in that submission. 11. Admittedly, the decree in question was not entered into the revenue record. The defendant purchased the property after consulting the revenue record for considerable period. The consideration was paid by them. So, in these circumstances, in view of concurrent finding of fact recorded by both the Courts below, declaring the defendant being bona fide purchaser, cannot be assailed in the regular second appeal in view of Section 100 CPC. 12. Learned counsel for the appellant has further submitted that suit property is joint Hindu family coparcenary property. The property in dispute was received by respondent No.1 from his father. So, in view of ancestral nature of property respondent No.1 was not competent to alienate the suit property in favour of other defendants/repondents. RSA No.2304 of 2010 9 13. I have carefully considered the said submission but do not find any force in that submission also. 14. The plea taken by the appellant is self-contradictory. On the one hand the plaintiff has submitted that he has become the owner of the suit property on the basis of decree dated 11.5.1987. On the other hand, he has taken the stand that property at the hands of defendant/respondent No.1 is joint Hindu family coparcenary property. These two pleas cannot be reconciled in any manner. Both the Courts below have given a finding against the plaintiff in this regard, which cannot be challenged in the regular second appeal. 15. The learned counsel for the appellant has further submitted that sale deeds dated 4.4.1997 and 5.5.1997 have no affect in view of the decree dated 11.5.1987 on account of the family settlement. 16. I have carefully considered the said submission but do not find any force in that submission. 17. As discussed above, the decree dated 11.5.1987 is merely a paper transaction, as observed by both the Courts below and defendants are the bona fide purchasers of the suit property. There is nothing on the file that judgment passed by both the Courts below are illegal, arbitrary and against the facts and evidence. 18. In view of the above discussion, all the points raised in para No.6 of the grounds of appeal stand determined against the appellant. 19. Consequently, the appeal is without any merit and the same stands dismissed. RSA No.2304 of 2010 10 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 11, 2011 sv