Punjab-Haryana High Court
Charan Kaur And Another vs Sucha Singh And Others on 28 March, 2011
Author: Sabina
Bench: Sabina
R.S.A.No. 1586 of 2007(O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1586 of 2007(O&M)
Date of decision: 28.3.2011
Charan Kaur and another
......Appellants
Versus
Sucha Singh and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.K.Kapila, Advocate,
for the appellants.
Mr. B.R.Mahajan, Advocate
for respondents No.2 to 6 and 8.
****
SABINA, J.
The plaintiffs had filed a suit for declaration that they were co-owners in possession qua suit land.
The case of the plaintiffs, in brief, was that the land was purchased by Sucha Singh and Charan Singh vide three sale deeds. Charan Singh died un-married and issueless. After his death, the plaintiffs being sisters and Sucha Singh being brother of Charan Singh were liable to inherit his share equally. The plaintiffs had, thus, inherited 1/6th share out of the suit property after the death of Charan Singh. Defendant No.1, however, got the mutation sanctioned in his R.S.A.No. 1586 of 2007(O&M) 2 own name and defendants No.2 to 6 had submitted that they had purchased the suit property from defendant No.1. The execution and validity of the alleged sale deeds by Charan Singh in favour of defendants No.2 to 6 was denied. It was averred that the plaintiffs were in possession of the suit land.
Defendant No.1 was proceeded ex parte.
Defendants No.2 to 6, in their written statement, averred that they had purchased the suit property vide sale deeds dated 24.5.1983, 1.6.1983 and 6.4.1983. The defendants were bonafide purchasers for consideration. The suit had been filed at the instance of Sucha Singh by the plaintiffs.
Defendants No.7 and 8, in their written statement, admitted the fact that Sucha Singh and Charan Singh had purchased the suit property. It was denied that the plaintiffs had inherited the share of Charan Singh.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether plaintiffs are co-sharers to the extent of 2/6th share in possession of suit land? OPP.
2. Whether plaintiffs have inherited the estate of Charan Singh to the extent of 1/3rd share each ? OPP
3. Whether suit is bad for non-joinder of necessary parties ? OPD
4.Whether suit is not within limitation ? OPD
5. Whether Sucha Singh and Charan Singh sold landuring 42 kanals 7 Marlas in favour of Janak Raj? OPD R.S.A.No. 1586 of 2007(O&M) 3
6. Whether Janak Raj sold land measuring 42 kanals 7 marlas in favour of defendants No.7 and 8 vide sale deed dated 7.8.1980 ? OPD
7. Whether in the alternative, the possession of defendants No.7 and 8 is open, hostile, continuous and uninterrupted ? OPD, if so, its effect ? OPD
8. Whether defendants No. 2 to 6 purchased part of suit property vide sale deed dated 24.5.1983 from Subhash Chander and Madan Lal for consideration? OPD
9. Whether defendants No.2 to 13 have purchased part of suit property from Smt. Raj Sehgal vide sale deed dated 24.5.1983 for consideration? OPD
10. Whether defendants No.2 to 6 purchased the part of suit property form Balwant Kaur for consideration vide sale deed dated 1.6.1983 ? OPD
11. Whether defendants No.2 to 6 purchased part of suit property from Janak Raj for consideration vide sale deed dated 6.4.1983 ? OPD
12. Whether the defendants No.2 to 6 purchaser part of suit property from Chaman Lal and Ajit Pal for consideration vide sale deed dated 25.4.1983 ? OPD
13. Whether the defendants No.2 to 6 are bona fide purchaser for consideration without notice and are protected under Section 41 of Transfer of Property Act? OPD
14. Whether the plaintiffs are entitled for declaration injunction as prayed for ? OPP
15. Whether in the alternative plaintiffs are entitled for R.S.A.No. 1586 of 2007(O&M) 4 joint possession of suit land ? OPP
16. Relief."
Additional Civil Judge vide judgment and decree dated 4.9.2000 decreed the suit of the plaintiffs and held that they were co- sharers in possession of the land measuring 30 kanals 2 marlas which formed 2/6th share out of land measuring 90 kanals 7 marlas. Aggrieved by the same, defendants No.2 to 6 preferred an appeal and vide judgment and decree dated 23.2.2007, Additional District Judge allowed the appeal and set aside the judgment and decree passed by the trial Court. Consequently, the suit filed by the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs.
Learned counsel for the appellants has submitted that defendants No.2 to 6 could not be described as bona fide purchasers for consideration. They knew that the plaintiffs had inherited the share of Charan Singh. In support of his arguments, learned counsel has placed reliance on Gurcharan Singh and others vs. Surjit Kaur and others 2005 (3) RCR (Civil) 628, wherein, in para 8, it was held as under:-
"After hearing the learned counsel and perusing the concurrrent findings of the Courts below on various issues, i have reached the conclusion that the instant appeal does not raise any question of law warranting its admission. It has been concurrently found by both the Courts below that the plaintiff-respondents are three daughters of deceased Amar Singh and the mutation of inheritance got sanctioned by Inder Singh and Baru Singh in respect of the property of deceased Amar Singh in R.S.A.No. 1586 of 2007(O&M) 5 1969 was null and void as it over-looked completely the interest of successor-in-interest widow Parsin Kaur and his three daughters namely the plaintiff-respondents. Moreover, the defendant-appellants were from the same village and were aware of the share of Amar Singh. It has been further found that protection furnished by Section 41 of the Act is not available because the legal position is that the transferor-co-sharer was not required only to be ostensible owner that he was also required to be authorised by the other co-sharer for management of the property in respect of their share. The aforementioned question has been considered by the Supreme Court in the case of Suraj Rattan Thirani v. Azamabad Tea Co. Ltd., AIR 1965 SC 295. A similar argument was raised before the Supreme Court which has been rejected by observing as under:
"The next point urged was based on Section 41 of the Transfer of Property Act. It was said that Ismail was by reason of the entry in the revenue registers which the co-heirs did nothing to correct, ostensibly the full owner of the property and hence the mortgage by him as full owner and the sale in Court auction in execution of the decree by the National Agency Co. Ltd. passed the full title to the Tea Estate and that the co-heirs were consequently estopped from disputing the defendant's right to the full 16 as share in the R.S.A.No. 1586 of 2007(O&M) 6 property.
In order that Section 41 of the Transfer and Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co-sharers and besides that they took reasonable care to ascertain whether Ismail had the power to make a transfer of the full 16 as interest. Now, the facts however were that except the property being entered in the revenue records in Ismail's name and that the management of the property was left by the co-sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property. It is manifest that the conduct of co- sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The learned judges have also pointed out that even the least enquiry by the mortgagee would have disclosed, that Ismail was not the full owner and this finding was not seriously challenged before us. In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that Section 41 was inapplicable to cases of sales in Court auctions for the reason that what the Court is capable of R.S.A.No. 1586 of 2007(O&M) 7 selling and what is sold in execution of a decree is only the right, title and interest of the judgment- debtor and nothing more. We, therefore , hold that the learned Judges of the High Court rightly held that Section 41 of the Transfer of Property Act afforded no defence to the respondents."
In view of the above findings of facts as well as findings on law there is no merit in the present appeal warranting its admission under Section 100 of the Code. The findings are based on ample evidence and it cannot be concluded that there is any perversity in those finding. Therefore, the appeal is liable to be dismissed." Learned counsel has further placed reliance on Bal Singh and others vs. Ravinder Singh and others 2005 (3) PLR 632, wherein in para 11, it was held as under:-
"Even the second contention raised by the learned senior counsel is without any merit. Learned trial Court as well as learned Single Judge has clearly noticed that Shrimati Akko while appearing as Dw-1 has stated that she had told Baj Singh (appellant) that she had entered into an earlier agreement with the plaintiff qua the land in dispute and had even delivered possession of a part of it. The factum of delivery of possession was even admitted by Surjan Singh, defendant and also by Balkar Singh defendant-appellant. In view of the aforesaid admission of the defendants, the defendant-appellants cannot claim that they had no knowledge of the previous R.S.A.No. 1586 of 2007(O&M) 8 agreement. Accordingly, the defendants cannot be heard to claim that they were bona fide purchasers of the property without any notice of the previous agreement.
In view of the aforesaid discussion, we do not find any merit in the present appeal. The same is, accordingly, dismissed."
Learned counsel for the respondents, on the other hand, has submitted that respondents No.2 to 4 and 6 were bona fide purchasers for consideration. The suit had been filed by the plaintiffs at the instance of Sucha Singh.
After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal.
In the instant case, the only question that requires consideration is as to whether defendant Nos. 2 to 6 were bona fide purchasers for consideration or not. Admittedly, the suit property had been purchased by Sucha Singh and Charan Singh in equal shares. The plaintiffs are the sisters of Charan Singh and Sucha Singh. After the death of Charan Singh, his share out of the suit property was mutated in favour of Sucha Singh. Thereafter, Sucha Singh executed the sale deeds in the year 1983 in favour of defendants No. 2 to 6. It has been noticed by the learned Additional District Judge in the impugned judgment that PW-2 Ajit Singh had stated that he knew defendants No.2 to 6. The suit land had been purchased by the said defendants about 15-16 years ago and they were in possession of the suit property. Defendants No.2 to 6 had constructed their R.S.A.No. 1586 of 2007(O&M) 9 residential house and haveli and had installed tubewell therein. He had been brought by Sucha Singh to make a statement in the case and the suit had been filed by the plaintiffs at the instance of Sucha Singh. Defendant No.1 Sucha Singh himself was proceeded ex parte. Defendants No.2 to 6 after verifying the revenue record had purchased the suit property. The suit had been filed by the plaintiffs at the instance of Sucha Singh in the year 1987 challenging sale deeds relating to the year 1983. In these circumstances, learned first Appellate Court rightly came to the conclusion that defendants No.2 to 6 were bona fide purchasers for consideration. So far as defendants No.7 and 8 are concerned, the sale deed had been executed in their favour by Charan Singh during his life time.
No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed.
(SABINA) JUDGE March 28, 2011 anita