Punjab-Haryana High Court
Jalandhar Improvement Trust vs Harbhajan Kaur And Others on 18 February, 2010
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
C.M.No.9859-60C of 2009 in
RSA No.3673 of 2000 1
IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH.
C.M.No.9859-60C of 2009 in
RSA No.3673 of 2000
Date of decision: February 5,2010
Jalandhar Improvement Trust,Jalandhar
.....Appellant
vs.
Harbhajan Kaur and others .
...Respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG.
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Present: Mr. R.C.Setia, Senior Advocate, with
Mr.Raman Sharma, Advocate, for the applicant-respondents.
Mr.R.S.Bal, Advocate, for the non-applicant-appellabt.
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Rakesh Kumar Garg,J.
C.M.No.1012-C of 2010.
Allowed as prayed subject to all just exceptions.
C.M.Nos.1193-94-C of 2010 Allowed as prayed subject to all just exceptions.
Reply by way of affidavit of Baljit Singh Neelamahal, Chairman Improvement Trust, Jalandhar, to this application is taken on record.
C.M.No.9859-60C of 2009 Vide this application the appellant sought permission of this Court to place on record Annexures A1 to A7 by way of additional evidence and for dismissal of this appeal in the facts and circumstances of this case.
C.M.No.9859-60C of 2009 in RSA No.3673 of 2000 2 It has been averred in this application that the appellant-Trust instituted civil suit No.244 of 1995 challenging decree dated 12.2.1988 passed in civil suit No.55 of 1988 alleging that allotment Order No.JIT/5610 dated 12.2.88 in respect of open site (Plot No.749-G) measuring 1 kanal in Guru Teg Bahadur Nagar in 110 acre development scheme is illegal, null and void. The said suit of the Trust was decreed vide judgment and decree dated 25.1.1996.
The judgment and decree passed by the trial Court was challenged in appeal filed by the respondent-defendants. The lower Appellate Court framed additional issue to the following effect and remanded the case to the trial Court for giving finding on the said issue:-
"Whether defendants No. 3 and 4 are bona fide purchasers of the suit property, for valuable consideration, in good faith, and without any notice of the alleged defects of title of defendant No.1 ? OPP 3 and 4 It is further submitted that upon remand the trial Court returned findings on additional issue in favour of the defendants to which objections were filed by the Improvement Trust. Lower Appellate Court finally vide judgment and decree dated 2.12.1999 set aside the judgment and decree passed by the trial Court holding that the applicant Harbhajan Kaur was bona fide purchaser having purchased the plot in question bona fide after seeing Court decree in favour of Ravinder Kumar, her vendor vide Ex.D2 and further on the basis of said sale the Trust had even transferred the plot in favour of Harbhajan Kaur-applicant vide Ex.D3. Accordingly, lower Appellate Court also set aside the finding of trial Court on issues No. 1 and
2 being incorrect and in the ultimate analysis the suit of the Trust was C.M.No.9859-60C of 2009 in RSA No.3673 of 2000 3 dismissed, the present appeal has been filed by the appellant-Trust against the judgment and decree dated 2.12.1999.
It has been further averred in this application that applicant respondent has come across certain documents which are very material for just decision of the case. According to the applicant, the following facts which have come to their knowledge are very material for the just decision of the case:-
i) That Sh Baljit Singh Neelamahal, Chairman of the Improvement Trust Jalandhar filed an affidavit in CWP No.3756 of2007 in which also it has been stated that "...plot no.749G measuring 1 kanal was allotted to him, it is this plot that stood transferred in favour of the petitioners on 23.02.1988 but they have not paid for the same.." It was further stated that one Sheela Devi had obtained some decree dated 15.10.1993 against the Trust and by virtue of orders in RSA 2488 of 1993 of 23.9.1994 of Hon'ble High Court the allotment of plot No.749G was made in her favour. These facts stated in the aforesaid affidavit would show that it was in the knowledge of the trust that the plot No.749G has been allotted to one Sheela Devi but this fact has also been concealed from the court of learned Addl.District Judge,Jalandhar and also from Hon'ble High Court in the instant RSA No.3673 of 2000. In this manner the appellant-
trust has played fraud upon the Courts below as also upon this Hon'ble Court. A true copy of affidavit dated 8.12.2008 is enclosed as Annexure A1.
Further more in the affidavit filed before Hon'ble High Court again a false averment has been made that the allottees i.e. the applicant-defendants have not paid the transfer fee, which is again false and contrary to record of the trust as two demand draft Nos.213822/196/88 dated 22.2.1988 for C.M.No.9859-60C of 2009 in RSA No.3673 of 2000 4 Rs.42,985/- and 213823/197/88 dated 22.2.1988 for Rs.2150/- both drawn on Punjab and Sind Bank are still on the record of the appellant-trust, copy whereof is enclosed as Annexure A2.
(ii)That as stated above, the decree in favour applicant- respondents has been passed by the learned Addl. Distt. Judge, Jalandhar on the ground that they are bona fide purchasers of the suit property, for valuable consideration, in good faith, and without any notice and it is a settled law of the land that such a bona fide purchaser has to be protected. It may be submitted that in the execution proceedings the Executing Court vide orders dated 1.8.2008 struck off the defence of the appellant-Trust. Therefore, there is no defence left with the appellant-Trust even in the execution petition. A copy of the order passed by learned Executing Court is enclosed as Annexure A3.
(iii) That the applicant-respondent has come to know that there were many similar cases i.e. relating to adjoining plot Nos.749A to 749F allotments of which have been duly regularized and all the occupants of those plots were held to be bona fide purchasers for consideration and without notice. The appellant-trust cannot treat the applicant-respondent differently when they stood on the same footing as the occupants of plot Nos.749A to 749F. Copies of relevant documents showing allotment of above plots to the persons concerned are placed on record as Annexure A4 (colly).
(iv)That in the similar circumstances the appellant-trust had made a challenge to the civil Court decree as well as sale deed by allottee. While dismissing the RSA No.4480 of 1999 filed by the Improvement Trust this Hon'ble Court noticed the facts that the allottee had paid the price; that the decree in favour of allottee was perfectly legal and valid and consequently sale deed by the allottee in favour of the one Kamal Kishore was valid. The RSA of the Improvement C.M.No.9859-60C of 2009 in RSA No.3673 of 2000 5 Trust was dismissed against which SLP No.14447 of 2001 was also dismissed. Copies of judgment dated 30.4.2001 passed by this Court and the order in SLP dated 7.9.2001 are enclosed as Annexure A5 (colly).
(v) that similarly RSA No.599 of 2000J.I.T vs. Jasminder Singh and others filed by improvement Trust Jalandhar was dismissed by this Hon'ble Court vide judgment dated 8.4.2003 relying upon decision in JIT Vs. Kamal Kapoor and ors. RSA No.4480 of 1999 (Annexure A5). A true copy of judgment dated 8.4.2003 is enclosed as Annexure A6.
(vi)that another RSA No.1822 of 2003-Ajinder Kaur v. JIT was decided by this Hon'ble Court on the same analogy. In the said case also the Improvement Trust had challenged the decree in favour of allottee. In reply to application filed by appellant in said appeal it was acknowledged and admitted by the Improvement Trust that it has accepted the judgment passed by this Hon'ble Court in RSA Nos.598 of 2000 and 1037 of 2003 decided on 8.4.2003 and 20.10.2003 respectively and even a resolution No.150 dated 2.5.2003 was passed by the Improvement trust regularizing allotments Plot Nos.749-A and 749D. Accordingly, the said appeal was also allowed by this Hon'ble Court vide judgment dated 20.1.2004, copy whereof is enclosed as Annexure A7.
According to the learned counsel for the appellant, on the basis of the aforesaid fact, it is clearly established that the appellant-Trust is fighting unwarranted litigation as the decree dated 12.2.1988 in favour of Ravinder Kumar has been complied with, and the civil Court has also held the applicant as bona fide purchaser for consideration and without notice.
Learned counsel has also submitted that the present appeal is fully covered by the judgments of this Court in Jalandhar Improvement Trust,Jalandhar v. Jatinder Singh and others, RSA No.598 of 2000, C.M.No.9859-60C of 2009 in RSA No.3673 of 2000 6 decided on 8.4.2003, Ajinder Kaur v. Jalandhar Improvement Trust,Jalandhar and others, RSA No.1822 of 2003, decided on 20.1.2004.
Notice of this application was given to the non applicant-
appellant. In the reply filed to this application, the appellant has tried to distinguish the judgments of this Court passed in the case of Jalandhar Improvement Trust,Jalandhar v. Jatinder Singh and others, RSA No.598 of 2000, decided on 8.4.2003, Ajinder Kaur v. Jalandhar Improvement Trust,Jalandhar and others, RSA No.1822 of 2003, decided on 20.1.2004.
After hearing learned counsel for the parties, I am of the view that prima facie the present case is similar to the aforesaid cases which have already been decided by this Court. In these circumstances, the documents Annexures A1 to A7 attached with this application are taken on record.
Let the main appeal be listed for hearing on 11.3.2010.
February 5, 2010 (Rakesh Kumar Garg) Judge