Judgment:
Rs.No.3533 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.3533 of 1986 Date of Decision: January 22, 2014 Balak Singh and another ..Appellants Versus Gajjan Singh and another ..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.Dhaliwal, Advocate for the appellants.
Mr.G.S.Punia, Advocate for the respondents.
Paramjeet Singh, J.
This second appeal arises from a suit for declaration and permanent injunction filed by appellants-plaintiffs against respondents-defendants which has been decreed by the Court of fiRs.instance vide judgment and decree dated 22.02.1985 and appeal preferred by defendant no.2 has been accepted by lower Appellate Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 2 Court, suit of plaintiffs has been dismissed, vide judgment and decree dated 20.11.1986.
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 suit for declaration alleging that defendant no.1 was the owner of land measuring 21 kanals 18 marlas comprised in khaSr.no.655 (4-8).656(8-0).650 (7-2).654/1(2-8) with a right in 'Taur Chah' comprised in khaSr.no.648 as co-owner.
Defendant no.1 had sold the aforesaid land vide sale deeds dated 07.06.1978 and 08.06.1978 with all rights in 'Taur Chah', share in bore, 'rahat' 'mahal chah', trees etc.to plaintiffs.
On the basis of said sale deeds, mutation entries were made in favour of the plaintiffs, however, due to inadvertence, defendant no.1 continued to be recorded as a co-sharer in khaSr.no.648 (gair mumkin thata chah).By taking undue advantage of wrong entry in favour of defendant no.1, he had sold his share i.e.5 marlas from this khaSr.number to defendant no.2 through registered sale deed dated 23.08.1982.
Defendant no.2 had threatened the plaintiffs to take possession of the disputed property under the garb of sale deed dated 23.08.1982.
Hence, the plaintiffs filed suit seeking a decree for declaration to the effect that the sale deed in favour of defendant no.2 is null and void and has no effect on the rights of plaintiff and mutation in favour of defendant no.2 qua the share of defendant Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 3 no.1 with regard to khaSr.no.648 is also null and void and illegal.
The plaintiffs also sought decree for permanent injunction restraining the defendants from interfering in their possession over khaSr.no.648.
Defendant no.2 resisted the suit and filed written statement by taking preliminary objections of maintainability, affixation of ad valorem court fee, jurisdiction and locus standi.
On merits, it was pleaded that defendant no.1 had not sold his share in khaSr.no.648 to the plaintiff and recital in sale deed regarding the share of defendant no.1 in 'hora' 'taur chah' etc.is a routine entry and does not confer any title to the plaintiff.
On the basis of pleadings of parties, the Court of fiRs.instance framed following issues: “1.
Whether defendant no.1 sold the property in dispute along with share in bari chah, rasta chah, share of taur and share of trees and other rights appurtenant thereto?.OPP2 If issue no.1 is proved in affirmative, what is the effect of sale deed executed by defendant no.1 in favour of defendant no.2 regarding the land in dispute?.OPP3 Whether the suit in the present form is not maintainable?.OPD4 Whether the suit is not properly valued for the purpose of court fee and jurisdiction?.OPD5 Whether the plaintiff is in possession of the Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 4 suit land, if so its effect?.OPD6 Relief.”
.
After appreciating the evidence, the Court of fiRs.instance decided issues no.1 and 2 in favour of the plaintiffs and consequently decreed the suit holding that plaintiffs were in joint possession of 'taur chah' which they purchased from Malkiat Singh.
Feeling aggrieved, defendant no.2 preferred an appeal before lower Appellate Court which has been accepted and suit of the plaintiffs has been dismissed.
Hence, this regular second appeal.
When the appeal was admitted, no substantial question of law was framed, however, during the pendency of appeal, following substantial questions of law have been framed vide order dated 21.08.2013 by a Coordinate Bench of this Court: i) Whether the lower Appellate Court was justified in reversing the finding of the trial Court, omitting to take note of the fact that the plaintiff's vendor Malkiat Singh had retained to himself no property but sold all his holdings including the well and his share in the well to the plaintiff and consequently, the sale by his vendor to the fiRs.defendant subsequently in respect of the well alone did not create any title in favour of the fiRs.defendant?.
ii) Whether the property conveyed that Exs.P1 Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 5 and P2 included the proprietary right in the well itself although not specifically described by khaSr.number and whether the lower Appellate Court has committed an error in failing to appreciate an explanation by the plaintiff that it had been omitted to be mutated in faovur of the plaintiff's vendor although the ownership to his vendor was never lost for want of such mutation?.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellants has vehemently contended that vide sale deeds dated 7.06.1978 and 08.06.1978, defendant no.1 had sold all his holdings including the well and his share in the well to the plaintiffs.
Defendant no.1 had also sold his share in 'Ihata Chah' (well).The same is specifically described in the sale deeds Ex.P-1 and Ex.P-2, however, khaSr.number has not been mentioned therein.
For the reason that mutation of inheritance with regard to khaSr.no.648 was not sanctioned in favour of defendant no.1 when he sold the land in question to the plaintiff, this khaSr.number was left out to be incorporated in the mutation sanctioned in favour of the plaintiffs.
Learned counsel has further contended that this is a small piece of land which is surrounded by the land owned by defendant no.1 which has been sold to the plaintiffs and this is the only source of irrigation.
The Court of fiRs.Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 6 instance has rightly decreed the suit considering the recitals of sale deeds Ex.P-1 and P-2 and subsequent sale deed dated 23.08.1982 executed in favour of defendant no.2 has no effect on the rights of the plaintiffs.
Per contra, learned counsel for the respondents has vehemently opposed the contentions of learned counsel for the appellants and contended that sale deeds Ex.P-1 and P-2 do not mention about khaSr.no.648 which is a 'gair mumkin ihata chah'.
Defendant no.1 had never sold this khaSr.number to the plaintiffs.
He had only sold the khaSr.numbers mentioned in the sale deeds.
Mere recital regarding share in the well does not confer any title because the property bears specific khaSr.number.
The findings of fact have been recorded by the lower Appellate Court and the same cannot be challenged in the second appeal.
I have considered the rival contentions of learned counsel for the parties.
I would proceed to decide jointly both the substantial questions framed by a Coordinate Bench of this Court.
Admittedly, sale deeds Ex.P-1 and P-2 have been executed by defendant no.1 in favour of the plaintiffs.
Perusal of these sale deeds makes it clear that there is non-disclosure of khaSr.no.648 which is a 'Taur Chah' (area along with well).It is specifically mentioned in the sale deeds that all rights in 'Taur Chah', share in bore, 'rahat' 'mahal chah', trees etc., whatever Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 7 owned by defendant no.1, have been sold to the plaintiffs.
KhaSr.no.648 is a 'Taur Chah' in which defendant no.1 was a co-sharer to the extent of its 1/4th share and khaSr.no.648 has not been mentioned in the text of sale deeds and the same is missing.
Reason for not mentioning khaSr.no.648 in the sale deed is that the said khaSr.number was earlier left out to be incorporated in the mutation of inheritance sanctioned in favour of defendant no.1.
Perusal of text of sale deeds Ex.P-1 and P-2 reveals that share in 'Taur Chah' (area along with well) was also sold to the plaintiffs.
KhaSr.no.648 is the joint ownership of all the co-shareRs.Since there was non-disclosure of khaSr.number of 'taur chah' in sale deeds, the mutation was not sanctioned with regard to khaSr.no.648 in favour of plaintiffs and by taking undue advantage of absence of this entry,defendant no.1 had sold his share i.e.5 marlas comprised of khaSr.no.648 subsequently vide registered sale deed dated 23.08.1982 to defendant no.2, who is none else, but his real uncle.
Since defendant no.1 had sold his all rights vide sale deeds Ex.P-1 and P-2 which was affirmed vide writing Ex.P-3 executed between the parties, there was no share left in 'taur chah' with defendant no.1.
He could not again sell his share in 'taur chah' to defendant no.2, therefore, the sale deed dated 23.08.1982 is null and void to the extent of share of defendant no.1 in 'taur chah'.
The lower Appellate Court committed a grave error as it totally misread and incorrectly appreciated the evidence on record.
The findings of Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document Rs.No.3533 of 1986 8 the lower Appellate Court suffer from perversity and cannot be sustained and are accordingly reversed and the findings of the Court of fiRs.instance are upheld.
Both the substantial questions of law are answered in above terMs.No other point has been argued.
In view of above, the instant appeal is allowed, judgment and decree of the lower Appellate Court are set aside, judgment and decree of the Court of fiRs.instance decreeing the suit are restored.
Decree-sheet be prepared.
No order as to costs.
January 22, 2014 (Paramjeet Singh) parveen kumar Judge Kumar Parveen 2014.02.19 11:14 I attest to the accuracy and integrity of this document