Rs.No.733 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.733 of 1987 Reserved on: 20.12.2013 Date of Decision: January 08, 2014 Mehar Singh and others ...Appellants Versus Jagmal Singh @ Jai Pal Singh and others ..Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.G.S.Bhatia, Advocate, for appellant Nos.1 and 2.
Mr.S.K.Chauhan, Advocate for Mr.R.M.Singh, Advocate, for appellant Nos.3 and 4.
Mr.Sukant Gupta, Advocate, for respondent Nos.1 to 3.
None for respondent Nos.4 and 5.
Paramjeet Singh, J.
The appellants-plaintiffs filed the suit, out of which the present regular second appeal arises, for declaration to the effect that they are owners of certain land situated in the area of Village Dhanora, Tehsil Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 2 and District Kurukshetra as detailed in para Nos.1 and 3 of the plaint.
The trial Court decreed the suit, but lower appellate Court reversed the judgment and decree of the trial Court and accordingly, dismissed the suit and the appellants-plaintiffs have, therefore, filed the present regular second appeal in this Court.
The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced.
However, the brief facts relevant for disposal of this second appeal are that plaintiffs filed a civil suit alleging that Mam Raj son of Uda son of Jawaria, husband of respondent No.4/defendant no.1 and father of respondent no.5/defendant no.2, was owner of the suit land mentioned in para no.1 of the plaint.
Mam Raj had mortgaged the said land with possession with defendant Nos.3 to 5 for a consideration of Rs.24,000/- vide registered mortgage deed dated 21.06.1971 and mutation was sanctioned in favour of defendant Nos.3 to 5 on the basis of mortgage deed.
Later on, Mam Raj being the owner of the said land, sold the land measuring 48 Kanals 9 Marlas for a consideration of Rs.30,000/- vide registered sale deed dated 14.06.1972 to the plaintiffs.
By virtue of sale deed, the plaintiffs have become owners of the land in their own rights.
It is also averred in the plaint that mortgage consideration of Rs.24,000/- was left with the plaintiffs to be paid to the mortgagees i.e.defendant Nos.3 to 5 and Rs.6,000/- was received by the vendor Mam Raj but the mutation on the basis of sale deed was not sanctioned in favour of the plaintiffs by the revenue authorities for the reasons best known to them, though entries to Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 3 that effect have been made in the revenue record on the basis of sale deed by the circle Patwari on 22.01.1974 and attested by girdawar Kanungo on 06.12.1974.
It was also mentioned in the sale deed that the plaintiffs would be entitled to redeem the land on payment of the mortgage consideration to the mortgagees, however, mutation on the basis of the sale deed in favour of plaintiffs could not be sanctioned due to their non-appearance before the revenue authorities.
After the death of Mam Raj, mutation was sanctioned in favour of defendant Nos.1 and 2 in equal shares.
The plaintiffs were neither summoned nor informed.
Taking advantage of the mutation, defendant no.2 sold the land measuring 24 kanals 4 marlas to defendant Nos.3 to 5 being mortgagees in possession, for a consideration of Rs.40,000/- illegally with mala fide intention without any notice to the plaintiffs.
Since the entire land measuring 48 kanals 9 marlas had already been sold by Mam Raj and defendant no.2 was not left with any share in the land, the same could not have been sold by defendant no.2.
Notice was issued to the defendants.
Defendant Nos.1 and 5 were proceeded against ex-parte vide order dated 17.07.1979.
Defendant Nos.2 to 4 contested the suit.
Defendant no.2 filed an independent written statement and defendant Nos.3 and 4 jointly filed separate written statement.
Thereafter, counsel for defendant no.2 pleaded no instructions.
As such defendant no.2 was also proceeded against ex-parte.
In both the written statements, the defendants have taken identical preliminary objections and it was one of the objections that defendant Nos.4 and 5 are minors but they have been sued as major so the plaint may be rejected as Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 4 such; suit does not lie in the present form; suit has not been properly valued for the purposes of court fee and jurisdiction.
On merits, defendant no.2 alleged in his written statement that Mam Raj, father of defendant no.2, never sold any land in favour of the plaintiffs, he became blind 7-8 years before his death.
So, he was not in a position to execute any document much less the sale deed.
The defendants averred that sale deed, if any, in possession of the plaintiffs, is false, fictitious document and result of fraud played by the plaintiffs on Mam Raj.
Defendant no.2 has averred that she is sole heir of deceased Mam Raj.
It has also been pleaded in the written statement that if sale deed is proved to have been executed then it was without any consideration and legal necessity and is not binding upon defendant No.2.
It was also alleged that husband of plaintiff no.1 now represent by LR's and his brother entered into a conspiracy along with defendant no.1 to grab the property of Mam Raj.
Defendant no.1 – Sona Devi has been wrongly alleged and declared to be widow of deceased Mam Raj at the time of succession of property while husband of Sona Devi is still alive.
It is further averred that Sona Devi claimed on the basis of fabricated Will and a collusive decree in respect of the land of Mam Raj in her favour was obtained allegedly in connivance with plaintiff's husband and his brotheRs.All the transactions are result of conspiracy.
Civil Court decree in favour of Sona Devi was found to be doubtful and has been ignored by the Collector while sanctioning mutation of property of the deceased Mam Raj.
The mutation could not have been sanctioned in favour of the plaintiffs because the sale deed is not a genuine document.
Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 5 Defendant no.2 further admitted that she has sold ½ share of the land in favour of defendant Nos.3 to 5 and the said sale deed is for legal necessity.
Defendant Nos.3 and 4 in their written statement submitted that they have purchased the land from defendant no.2 in good faith and for a consideration and they have no knowledge of previous sale, if any, made by Mam Raj.
They have verified the title of defendant no.2 from the revenue record as well as from all other sources available at their command.
Ultimately, they pleaded that the suit be dismissed with special costs.
Plaintiffs filed replication to the written statements controverting the contents of the written statements as incorrect and reiterating the contents of the plaint as correct.
On perusal of the pleadings of the parties, the following issues were framed by the trial Court on 24.11.1979:- “1.
Whether plaintiff is owner of the land in dispute as alleged in the plaint?.
If so to what effect?.
OPP2 Whether mutation in favour of defendants no.1 & 2 has been sanctioned illegally and is thus invalid?.
OPP3 Whether defendants No.3 to 5 are bona fide purchasers of the land in suit without notice for consideration?.
If so to what effect?.
OPD4 Relief.”
.
Again on 11.01.1982 on the application of the defendants, the following additional issues were framed by the trial Court:- “3(a) Whether the defendants No.4 & 5 are minors if so its effect?.
OPD3b) Whether the suit does not lie in the present form?.
OPD Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 6 3(c) Whether the suit has not been properly valued for the purposes of court fee & jurisdiction?.
OPD”.
The parties were afforded opportunity to lead their respective evidence.
When defendant Nos.3 and 4 were leading evidence, then a statement was made by the counsel for the defendants that he had no instructions from defendant no.2 – Sardari Devi to pursue this case on her behalf, thus, he did not want to appear on behalf of defendant no.2 and thus, she was proceeded against ex-parte on 27.03.1982.
Learned fiRs.Court recorded issuewise findings and decreed the suit of the plaintiffs vide judgment and decree dated 24.08.1982.
Thereafter, only defendant no.4 i.e.Jagmal Singh @ Jai Pal Singh son of Nawab Singh preferred an appeal before the learned lower appellate Court, which has been accepted and the judgment and decree of the learned fiRs.Court has been set aside vide judgment and decree dated 16.09.1986.
Hence, this second appeal.
At the time of admission of this appeal, no substantial question of law was framed.
However, during the pendency of the appeal, the following substantial questions of law have been placed on record:- “1.
Whether sale deed Ex.D1 confers any better title than the one Smt.
Sardari was having in view of setting aside of mutation No.870 dated 5.2.1979 in Civil Court Decree dated 15.3.1981 (Ex.P1)?.
2.
Whether in view of Civil Court Decree dated 15.3.1981, sale qua ½ share of Smt.
Sona Devi was to be protected?.
3.
Whether the execution of sale deed dated 14.6.1972 is still to be proved even after admission of DW5 regarding its execution?.
Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 7 4.
Whether the sale deed coming from proper source has presumption of due execution in terms of Section 57(5) and 60 of the Registration Act?.”.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellants vehemently contended that findings of the trial Court on issue Nos.1 and 3 are in favour of the appellants-plaintiffs and there is categorical finding that the appellants are owners and the sale deed dated 14.06.1972 (Ex.P1) is valid one and the plaintiffs are entitled to take possession of the land after getting it redeemed on deposit of mortgage money.
The sale deed and mutation in favour of defendant no.3 as per sale by Sardari, does not confer any title of ownership on defendant Nos.3 to 5.
She was incompetent to sell the suit land because land already stood sold in the name of the plaintiffs vide sale deed (Ex.P1) executed by Mam Raj, the original owner.
With regard to the plea of defendants that they are bona fide purchasers for value, the learned trial Court has also recorded finding against defendant Nos.3 to 5.
It is further contended by the counsel for the appellants that lower appellate Court has recorded erroneous finding that sale deed (Ex.P1) executed by original owner Mam Raj in favour of the plaintiffs has not been proved on record.
Besides this, on issue no.3 the findings have been recorded that the defendants No.3 to 5 are bona fide purchasers for value and are protected under the provisions of Transfer of Property Act.
Learned counsel for the appellants further contended that the findings are not sustainable in the Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 8 eyes of law.
The sale deed executed by Mam Raj has been duly proved, certified copy of the same was also placed on record as Ex.P1 which is admissible in evidence being public record coming from the office of Sub Registrar.
The sale deed was neither challenged by the legal heirs of Mam Raj nor by defendant Nos.3 to 5.
Learned counsel for the appellants further contended that so far as finding of bona fide purchaser for value is concerned, there is complete misreading and non-reading of the evidence on record.
There is categorical evidence with regard to the sale deed in favour of the plaintiffs.
The entries were effected in the revenue record by the concerned revenue authorities.
Mutation was also entered but it was not sanctioned due to non-appearance of the vendees at the time of hearing.
The revenue record clearly indicates about the execution of sale deed by Mam Raj in favour of the plaintiffs is prior in time.
It is further argued that mutation does not confer any title and it is only for fiscal purposes to update the revenue record.
The sale deed is a document of title and it cannot be ignored.
Learned counsel further contends that the issue with regard to admissibility of the certified copies of the public document in evidence is no more res integra.
In support of his contention, learned counsel has relied upon various authorities which would be dealt with later.
Per Contra, learned counsel for the respondents vehemently contended that the land in question was mortgaged in favour of defendant Nos.3 to 5 and the mutation regarding the land could not be sanctioned, whereas they got sanctioned the mutation in respect of the land sold to Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 9 them by Sardari.
It is further contended that sale deed in favour of plaintiffs has not been proved on record, although the original sale deed was produced but its last page was missing.
It is further contended that they are bona fide purchasers for value and have proved the sale deed in their favour and the plaintiffs remained silent during the life time of Mam Raj and did not make any attempt.
The findings of fact have been recorded with regard to bona fide purchase and the same cannot be set aside in regular second appeal.
No substantial question of law arises in the present appeal for consideration of this Court.
From the pleadings as well as arguments addressed by the counsel for the parties, following substantial questions of law arise:- “i) Whether the sale deed as well as its certified copy is admissible in evidence without being proved by calling witnesses?.
ii) Whether there is a misreading and non-reading of the revenue record and the entries before the revenue officials as a result of which finding on issue no.3 with regard to bona fide purchaser was erroneously recorded and is not sustainable?.
The fiRs.question which arises for consideration is whether the sale deed in favour of plaintiffs has been proved on record in accordance with law and the lower appellate Court has wrongly reversed the finding with regard to the proof of sale deed and the consequential ownership of the plaintiffs.
Before I consider the issue, it would be appropriate to reproduce the relevant provisions of the Indian Evidence Act, 1872:- Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 10 “74.
Public documents – The following documents are public documents:- (1) Documents forming the acts, or records of the acts - (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officeRs.legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents.
76.
Certified copies of public documents – Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation – Any officer who, by the ordinary couRs.of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
77.
Proof of documents by production of certified copies – Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
.
Section 74 refers to the public documents maintained by the public authority, Section 76 refers to the certified copies of the public Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 11 documents and Section 77 provides that the certified copies of public documents may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
In the case in hand, sale deed dated 14.06.1972 has been proved and exhibited on record as Ex.P1.
It is admitted case that the original sale deed was available with the plaintiffs but its last page was missing.
Thereafter, on an application filed by the plaintiffs, secondary evidence was allowed to be produced on record and the certified copy of the same was brought on record.
Balbir Singh, Registration Clerk from the office of Sub Registrar, Kurukshetra appeared as PW2, who by referring to the original records brought by him deposed that Ex.P1 is the correct copy of the original sale deed.
Furthermore, PW3 – Kishan Kumar son of Ram Ditta Mal also appeared to prove the signatures of his father Ram Ditta Mal, who scribed the sale deed and has died in the year 1976 and the said witness has proved the entries of the sale deed in the register, scribed by his father at Serial No.266/267 dated 14.06.1972.
When a document is a public document, it is not required to be proved by examining any witness or executant of any document provided the certified copy of the said public document is obtained from the competent authority.
Section 57(5) of the Registration Act, 1908 provides that all copies given under the said section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.
Registered sale deed contains an endorsement as well as a certificate of registration which is issued in terms of Section 60 of the Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 12 Registration Act, 1908.
Section 60(2) of the Registration Act provides that all such certificates shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by the Registration Act and the facts mentioned in endorsement are admissible.
Thus, once the issuance of certified copy of such document stood proved besides the existence of the original and the loss of the last page of the original, learned trial Court has rightly accepted the document and exhibited it on record, so in view of this, the finding of the lower appellate Court that it is not in admissible is not sustainable in the eyes of law.
Hon'ble Supreme Court in Jaswant Singh versus Gurdev Singh and otheRs.2011(4) Civil Court Cases 0738 has held that certified copy of a public document is admissible in evidence without being proved by calling witness.
Hon'ble Supreme Court in Madamanchi Ramappa and another versus Muthaluru Bojjappa, AIR1963Supreme Court 1633, has held that in terms of Section 77 of the Evidence Act, 1872 the certified copy of a public document is admissible in evidence without further being proved by calling the witness.
Such finding has been recorded on the strength of the established principles that once a document is preserved as a public document, it need not be proved like any other private document.
The Hon'ble Supreme Court held as under:- “....The learned Judge emphasized the fact that no sale deed had been produced by the appellants to prove their title, and then examined the documentary evidence on which they Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 13 relied.
He was inclined to hold that Ex.A.8 had not been proved at all and could not therefore, be received in evidence.
It has been fairly conceded by Mr.Sastri for the respondent before us that this was plainly erroneous in law.
The document in question being a certified copy of a public document need not have been proved by calling a witness.
Besides, no objection had been raised about the mode of proof either before the trial Court or in the District Court....”
.
Hon'ble Surpeme Court in State of Haryana vs Ram Singh, AIR2001SC2532has held that the documents which are public documents within the definition of Section 77 of the Evidence Act, cannot be said to be inadmissible in evidence.
It has been held that it is not the law that a certified copy of a registered document for sale is inadmissible in evidence unless the parties to the document are examined to prove the same.
Hon'ble Delhi High Court in P.R.Vaze versus C.R.Jayana and otheRs.1968 PLR, 16 has held that once a registered document (public document) is produced in evidence, it not only proves its existence, but also the contents thereof.
This Court in Om Parkash and others versus Ram Gopal @ Paali Ram @ Doojpuri Maharaj and another, 2011(4) PLR364has held that certified copy of a registered sale deed is an admissible piece of evidence and the same need not be proved by examining the witnesses or the executant thereof.
This Court has also held in Smt.
Giano versus Puran and otheRs.2005(4) RCR (Civil) 414 that the contents of a registered sale deed registered by the Registrar are admissible in evidence under Section 60 of the Registration Act.
This Court further held that the proof of the Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 14 execution of the Will, Gift Deed and other testamentary documents stand on a different footing.
It was held that certified copy of the gift deed from the office of the Sub Registrar would be sufficient to prove its due execution.
Hon'ble Karnataka High Court in K.M.Shaffi versus Smt.
Dayamathi Bai, 1999 AIHC4071 while relying upon various judgments of the Hon'ble Supreme Court, has held that once the Registration Authority makes the entry of the document in the public record, the said document becomes a pubic document because any entry made in the register concerning the right of the immovable property cannot be construed otherwise.
It was thus, held that when the Sub Registrar attests the document within the meaning of Section 3 of the Transfer of Property Act, the same becomes a bullet proof safeguard and that in such backdrop the genuineness and validity of the said document cannot be called in question.
Further, Hon'ble Calcutta High Court in Smt.
Sulochana Devi Bubna versus Gobinda Chandra Nag and otheRs.1999(1) RLR, 92 has held that though the sale deed is a private document but the record of the sale deed which is kept in the office of Sub Registrar is a public document and hence it falls within the category of public document.
It was thus held :- “9....Secondary evidence is admissible under clause (e) when the original is a public document within the meaning of Section 74 and under clause (f) when the original is a document of which a certified copy is permitted by the Evidence Act, or by any other law in force in India to be given in evidence.
The Supreme Court held in Kalyan Singh versus Smt.
Choti and otheRs.AIR1990SC396- Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 15 “25....Section 63 of the Evidence Act mentions five kinds of secondary evidence.
Clauses (1).(2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence.
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.
xx xx xx 10.
Relying on this authority, we hold that the certified copy of the registered sale deed is also admissible under Clause (e) of Section 65”.Hon'ble Karnataka High Court in H.K.Ramakrishna Iyengar versus Smt.R.Kamalabai, 1997(2) RLR515has held that the document kept in the office of Sub Registrar is a public document and the same need not be proved by examining the witnesses or executant of the said document.
The findings of the lower appellate Court with regard to the admissibility and proof of sale deed (Ex.P1) are totally against the settled principle of law as well as the statutory provisions referred to herein above.
Thus, the findings of the lower appellate Court are patently illegal, hence, are set aside.
The fiRs.question is answered accordingly.
The second question which arises for consideration is with regard to issue no.3 as defendant Nos.3 to 5 claimed to be bona fide purchasers of the property in question and have been held as such by the lower appellate Court, such finding is apparently against the evidence Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 16 available on record and there is clear misreading and non-reading of evidence.
Admittedly, the sale deed in favour of the plaintiffs-appellants is prior in time which was executed and registered in the office of Sub Registrar on 14.06.1972 by Mam Raj, the original owner.
However, mutation was not sanctioned and not incorporated in the revenue record, as a result of which after the death of Mam Raj, mutation of inheritance of the property was sanctioned on the basis of natural succession in the name of Sardari, daughter and Sona Devi widow.
Sardari had sold half share vide registered sale deed dated 17.05.1979.
Sardari in her cross examination has categorically stated that she knew that the property in question had already been sold in favour of the plaintiffs by her father.
She has also admitted that the land was mortgaged with defendant Nos.3 to 5.
The relevant part of her cross-examination reads as under:- “....I sold the land to Mohan Singh, Jagmal Singh and Daya Singh.
I do not remember as to who had got the registry reduced into writing.
The possession is of Mohan Singh etc., because the land was under mortgage with them.
Earlier Mam Raj mortgage this then he sold.
After the death of my father, the land which was sold mutation of the same was entered in my name and in the name of Sona Devi ½ ½”.It is the admission of Sardari defendant no.2 that Mam Raj firstly mortgaged the property and then he sold it.
Meaning thereby Mam Raj earlier mortgaged the property to defendant Nos.3 to 5 and subsequently sold to the plaintiffs.
There is no reference to any other sale Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 17 made by Mam Raj in the statements of the parties as well as in the pleadings of the defendants.
As such, this is clear that Mam Raj deceased executed the sale deed in favour of the plaintiffs.
It is also pertinent to mention that a decree has also been passed in favour of Sona Devi the widow of Mam Raj and it was also never challenged by the parties or the legal heiRs.It is also admitted by DW3 – Jagmal Singh in his cross- examination that at the time of execution of sale deed dated 14.06.1972, his elder brother and grand-father Chamel Singh were present.
The relevant part of his cross-examination reads as under:- “....My grand-father was present.
At the time of registry, my elder brother and grand-father Chamel Singh, were presented I was not there.....”
.
Besides this, it is clear that in the revenue record, entries with regard to the execution of sale deed by Mam Raj in favour of plaintiffs are already in existence.
Although, mutation on that basis has not been sanctioned.
Once the entry with regard to the execution of sale deed by Mam Raj was already mentioned in the revenue record, then defendant Nos.3 to 5 must be presumed to have knowledge of the same as they are supposed to verify the revenue record before purchasing a property and this cannot be said that the defendants were not aware of that fact.
Since the sale deed executed by one of the legal heirs of Mam Raj in favour of defendants No.3 to 5 is subsequent to the sale deed actually executed by Mam Raj, the original owner, subsequent sale deed have no effect on the rights of the appellants-plaintiffs.
The sale deed upon which the present Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 18 suit is based is a registered document, and it is elementary principle of law that registration of instrument tantamount to a constructive notice under Section 3 of the Transfer of Property Act.
It is, therefore, perfectly futile to contend the defendants No.3 to 5 were purchasers without knowledge.
They cannot be in a better position than the person from whom they purchased.
Issue no.3 has erroneously been decided by the learned lower appellate Court by misreading and non-reading of the material evidence available on record.
Thus, the findings of the lower appellate Court on issue no.3 that defendant Nos.3 to 5 are bona fide purchasers for value, are patently erroneous, perveRs.and result of misreading of material evidence on record, hence, are set aside The finding on issue no.2 has also been wrongly recorded by the learned lower appellate Court by misreading the evidence.
The lower appellate Court has simply reversed the finding in view of the finding on issue nos.1 and 3 having been reversed.
But while reversing the finding on issue no.2, the ld.
Lower appellate Court has neither given any reason nor evidence led by the parties has been discussed.
Admittedly, mutation No.870 was sanctioned in favour of defendant Nos.1 and 2 to the extent of ½ share each of the land of Mam Raj and thereafter, Sardari has sold her share to defendant Nos.3 to 5, though this mutation has also been challenged in this suit but while dealing issue no.2, ld.
Trial Court after going through the documentary evidence produced by way of judgment and decree in a civil suit No.490 of 1979 titled “Sona Devi versus Sardari Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document Rs.No.733 of 1987 19 Devi”., Ex-P-3 vide which mutation No.870 was declared as illegal, in effective, void and ultra vires.
The said judgment and decree (Ex.P3) is binding between the parties, but the ld.
Lower appellate court without discussing this evidence has reversed the finding on issue no.2.
Hence, finding on issue no.2 is also result of misreading of material evidence and is set aside.
In view of above, the substantial questions of law referred to herein above are answered accordingly.
The instant regular second appeal is allowed.
The impugned judgment and decree dated 16.09.1986 of the learned lower appellate Court is set aside and the judgment and decree dated 24.08.1982 of learned trial Court is restored with costs throughout.
January 08, 2014 [Paramjeet Singh].vkd Judge Kumar Virender 2014.02.04 17:13 I attest to the accuracy and integrity of this document