Punjab-Haryana High Court
Gurmukh Singh vs Avinder Singh And Others on 8 October, 2013
Author: Jaspal Singh
Bench: Jaspal Singh
Regular Second Appeal No.1234 of 1987 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Regular Second Appeal No.1234 of 1987 (O&M)
Date of Decision:8.10.2013
Gurmukh Singh ...Appellant
Versus
Avinder Singh and others ...Respondents
CORAM: HON'BLE MR. JUSTICE JASPAL SINGH
Present : Ms. Jyoti Sareen, Advocate for the appellant.
Ms. Bindu Goel, Advocate for respondents No.1 and 2.
Ms. Alka Sareen, Advocate for respondent No.20.
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JASPAL SINGH , J.
1. Since the Courts below duly discussed the pleadings and evidence brought on record by the parties in detail, therefore, there is no need to reproduce and repeat the same in the instant regular second appeal in this context. However, the facts relevant for deciding the present appeal are that a civil suit titled as Avinder Singh and another v. Gurmukh Singh and others; bearing Civil Suit No.350-A of August 12, 1985 was preferred by Avinder Singh to the effect that the decree dated January 14, 1980 passed by Sub Judge Ist Class, Amloh in civil suit No.173 of July 20, 1977 titled as Gurmukh Singh v. Avtar Singh is ineffective and inoperative against the rights of the plaintiffs-Avinder Singh etc. with respect to the land to the extent of 1/3rd share bearing Killa No.II min (6-0) of Rect. No.22 out of the land comprised of Rect. No.22 Khasra No.1(2-4), I0(8-0), 11(8-0) and further that the plaintiffs be not dispossessed from the land subject matter of the Civil Suit No.350-A of August 12, 1983 or in the alternative suit of the plaintiffs is that they are owners in possession of land measuring six kanals Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -2- out of the land measuring 231 Kanals 2 Marlas. The said Civil Suit No.350- A of August 12, 1983 was dismissed by the Sub Judge, Ist Class, Amloh, vide judgment and decree dated December 23, 1985 on the ground that Jagdish Singh was not competent to sell the land subject matter of the civil suit vide sale deed dated May 5, 1979 since it fell to the share of the defendant-Gurmukh Singh in the family partition. In order to prove family partition, Gurmukh Singh defendant examined himself as DW-1 and examined Som Nath as DW-2. Som Nath proved the photo stat copy of partition deed Ex.DA and stated that the partition deed was scribed by him. Accordingly, the learned trial Court came to the conclusion that joint land was partitioned between Gurmukh Singh, Jagdish Singh and Surinder Kaur who was the guardian of defendants No.4 to 6 and it was held that Jagdish Singh who sold 1/3rd share out of the land vide sale-deed Ex.P-1 was not the owner of the land on the date when he executed the sale deed. It was also held that admittedly neither the plaintiffs nor Jagdish Singh from whom they purchased the land in suit were a party to the civil suit No.173 of May 20, 1977 titled as Gurmukh Singh v. Avtar Singh but in the execution application, the plaintiffs filed objection on the same lines which were dismissed on January 7, 1983 Ex.D2 and the decree-holder was entitled to get possession from the plaintiffs and the plaintiffs cannot question the legality and validity of that decree by way of this suit as the same is barred by Order 21 Rule 101 CPC.
2. Against the judgment and decree dated December 23, 1985 passed by the Sub Judge, Ist Class, Amloh, the plaintiffs-Avinder Singh etc. preferred an appeal before the learned District Judge, Patiala, which was allowed vide judgment and decree dated January 28, 1987 and the judgment Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -3- and decree dated December 23, 1985 passed by the Sub Judge, Ist Class, Amloh, were set aside and the plaintiffs-Avinder Singh etc. were declared to be the owner and in possession of the land subject matter of the Civil Suit No.350-A of August 12, 1983 and they were entitled to maintain till the joint khewat is validly partitioned.
3. Feeling aggrieved against the judgment and decree dated January 28, 1987 passed by the learned Additional District Judge,Patiala, the defendant-appellant/Gurmukh Singh preferred the instant appeal which was admitted for hearing vide order dated May 18, 1987.
4. While assailing the impugned judgment and decree dated January 28, 1987 passed by the learned Additional District Judge, Patiala, it has been argued with vehemence by the learned counsel for the appellant that the same are absolutely against the evidence available on file and settled cannons of law. Lower Appellate Court has fallen in error while observing that the land in dispute was not partitioned solely on the ground that its factum has not been recorded in the revenue record. It is also fully established on record from Ex.D-1/Ex.DA memo of family settlement/partition that the land subject matter of the sale deed Ex.P-1 dated May 22, 1979 alongwith some other land total measuring 18 Kanals 4 Marlas fell to the share of the appellant-Gurmukh Singh. Even Jagdish Singh has also admitted the partition in question which took place in the year 1974 in respect of the land in question as is evident from the copy of order dated January 7, 1983 passed by Sub Judge Ist Class, Amloh whereby an objection petition/suit filed by the present respondents was dismissed. Jagdish Singh also appeared in those proceedings as OW-2 on behalf of the present respondents. So when Jagdish Singh was not the owner of the land Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -4- subject matter of the sale deed dated May 22, 1979 Ex.P-1 in favour of respondents No.1 and 2 Arvinder Singh etc, the sale deed is null and void as he could not transfer the better title than he himself possessed. Further the impugned judgment and decree has been challenged by the learned counsel for the appellant that the lower Appellate Court has committed grave error by holding that provisions contained in Order XXI Rule 101 of CPC are not applicable. In fact, trial Court had rightly observed that once the objections preferred by the respondents during the pendency of the execution have been dismissed on merits, fresh suit is not maintainable in view of the bar created by Order XXI Rule 101 CPC. To fortify his arguments, learned counsel for the appellant has placed reliance of the observation made in case Tanzeem-e-Sufia v. Bibi Haliman; 2002(4) R.C.R (Civil) 1.
5. It was next argued by the learned counsel for the appellant that even the sale deed Ex.P-1 is hit by the doctrine of lis pendens. The Civil Suit No.173 of May 20, 1977 titled as Gurmukh Singh v. Avtar Singh was pending on the date of execution of sale deed dated May 22, 1979 Ex.P-1 which was finally disposed of vide judgment and decree dated January 14, 1980. So, in such situation even the alleged vendees Arvinder Singh etc. cannot claim that they are bonafide purchasers for value and without notice of any adverse title. Learned counsel for the appellant, accordingly, prayed for setting aside of the judgment delivered by the learned lower Appellate Court dated January 28, 1987 and upholding the judgment and decree of the learned trial Court dated December 23, 1985 by way of acceptance of the instant appeal.
6. These arguments have been controverted by the learned counsel for the respondents contending that the impugned judgment and decree Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -5- dated January 28, 1987 are absolutely in consonance with the evidence available on file and the law applicable to the facts and circumstances of the case in hand. He has fully supported the judgment of the lower Appellate Court and submitted that the findings recorded by the lower Appellate Court and reversal of the findings delivered by the trial Court are absolutely perfect. He prayed for dismissal of the appeal with special costs.
7. This Court has given an anxious thought to the rival submissions made by the learned counsel for the parties and has minutely perused the impugned judgments as well as the records.
8. It is an undisputed fact that the land measuring 18 Kanals 4 Marlas alongwith some other land total land measuring 231 Kanals 2 Marlas was in the joint ownership of appellants Gurmukh Singh, Jagdish Singh and some other co-sharers. The land was already partitioned amongst co-sharers and the memorandum of partition dated Ex.D-1/Ex.DA dated March 19, 1974 was subsequently reduced into writing which bears the signatures of Gurmukh Singh, Jagdish Singh, Surender Kumar and some other persons. This memorandum of partition has been categorically admitted by Jagdish Singh as is evident from the copy of order dated January 7, 1983 whereby an objection petition/suit preferred by Arvinder singh and others was dismissed. As per the memorandum of partition, the land which is the subject matter of the sale deed Ex.P-1 fell to the share of Gurmukh Singh. Jagdish Singh was no more the owner thereof, particularly, on the date of execution of sale deed Ex.P-1. Moreover, the civil suit No.173 of May 20, 1977 titled as Gurmukh Singh v. Avtar Singh was pending at that time and during the pendency thereof, Arvinder Singh etc got executed the sale deed. As a general rule where a property sold by a person who is not an owner Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -6- thereof or does not sell it under any authority or with the consent of owner, the buyer acquires no better title than the seller had. This rule is derived from the maxim "nemo dat quod non habt" which connotes that one can not give what he himself has not got, i.e., a seller cannot convey better title than that of his own. Even otherwise, respondent-plaintiffs are not strangers in this case. They belong to the same village where the property is situated but opted to purchase the property during the pendency of the lis. So, they otherwise cannot claim themselves to be bonafide purchasers for valuable consideration or without notice of the adverse title of their vendor i.e. Jagdish Singh.
9. It would also be pertinent to mention here that the lower Appellate Court has gravely erred in holding that the bar created by order XXI Rule 101 is not attracted. Under the un-amended CPC, 3rd party adversely affected or dispossessed from the property involved were required to file independent suits for claiming title and possession but after amendment in the year 1976, the claims of the 3rd party to the property in execution are now required to be determined by the Executing Court itself in accordance with the provisions contained in Order XXI Rule 101 CPC with a right of appeal to the Higher Court against such decision by treating it to be a decree under Order XXI Rule 103.
10. Similar question came up for hearing before the Hon'ble Apex Court in case Ashan Devi and another v. Phulwasi Devi and others; 2004 (1) R.C.R. (Civil) 38. The relevant portion i.e. paras 15 and 16 are extracted as below:
"15. We would, first, take up for consideration the main question involved between the parties as to whether the Objectors/could have made application unde Order 21 Rule 99 Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -7- to the executing court and seek adjudication of their right and title through the executing court in accordance with Order 21 Rule 101 of the Code or their remedy lay in filing an independent suit. Order 21 Rule 99 and 101 read as under:-
"Order 21, Rules 99. Dispossession by decree-holder or purchaser.-(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions here contained.
Order 21, Rule 101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
16. It is necessary at this stage to take into account the objects of drastic amendments introduced to the Civil Procedure Code by Act No.104 of 1976. This Court in the case of Shreenath and anr. (supra), has compared the unamended provisions of the Code in Order 21 and the provisions introduced after amendment. It is noticed that earlier under the Code, third party 'dispossessed' in the execution of the decree was required to institute an independent suit for adjudication of its right and claims. In order to shorten the litigations concerning same Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh Regular Second Appeal No.1234 of 1987 (O&M) -8- properties between same and third parties, claims of third parties to the property in execution are now required to be determined by the executing court itself in accordance with provisions under Order 21 Rule 101 with right of appeal to the higher court against such adjudication treating it to be a 'decree' under Order 21 Rule 103 of the Code."
11. Similar observation was made in case Tanzeem-e-Sufia v. Bibi Haliman (supra).
12. Accordingly, the findings recorded by the lower Appellate Court in this regard are not sustainable and deserves to be reversed.
13. In the light of what has been discussed above, the impugned judgment and decree dated January 28, 1987 passed by the lower Appellate Court is not sustainable in view of the evidence as well as the settled principles of law discussed above and suffers from illegalities and infirmities. Therefore, impugned judgment and decree dated January 28, 1987 passed by the lower Appellate Court is set aside and that of the trial Court is affirmed by way of acceptance of the instant appeal.
14. Regular Second Appeal is, consequently, allowed.
(JASPAL SINGH) JUDGE 08.10.2013 rajeev Thakral Rajeev 2014.03.12 11:36 I attest to the accuracy and integrity of this document High Court Chandigarh