Punjab-Haryana High Court
Azad Singh & Others vs Smt. Krishna Devi & Others on 15 October, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA NO.3295 OF 2011
DATE OF DECISION : 15th OCTOBER, 2012
Azad Singh & others
.... Appellants
Versus
Smt. Krishna Devi & others
.... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. O. P. Goel, Senior Advocate with
Ms. Ravinder Kaur, Advocate for the appellants.
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L. N. MITTAL, J. (ORAL)
This is second appeal by defendants No.1 to 3 and 5 having lost in both the Courts below.
Suit was filed by plaintiff Kartar Singh, since deceased and represented by respondents No.1 to 3 as legal representatives.
Defendant No.1/appellant No.4-Prabhati agreed to sell the suit land measuring 43 kanals 5 marlas to the plaintiff @ `1,30,000/- per acre and received `2,00,000/- as earnest money and executed agreement dated 20.09.1999. The plaintiff has always been ready and willing to perform his part of the contract but defendant No.1 committed breach thereof. On the other hand, mutation No.1375 was got sanctioned by defendants No.1 to 5 RSA NO.3295 OF 2011 -2- on 05.07.2000 on the basis of decree dated 03.02.1983 whereby the suit land was mutated from defendant No.1 in favour of defendants No.2 to 5 who are three sons and wife of defendant No.1. Defendant no.2 also sold 6 kanals land out of the suit land to defendant No.6-Dalip Singh Defendants No.1 and 2 contested the suit whereas defendants No.3 to 5 were proceeded against ex parte. Defendant No.6-Dalip Singh also contested the suit. Decree dated 03.02.1983 whereby defendants No.2 to 5 were declared as owners of the suit land against defendant No.1 was set up as defence and it was pleaded that defendant No.1 had, therefore, no right to execute the impugned agreement regarding the suit land being no longer owner thereof.
Defendant No.6 claimed to be bonafide purchaser of the 6 kanals land out of the suit land for valuable consideration.
Both the Courts below have decreed the suit of the plaintiff. Feeling aggrieved, defendants No.1 to 3 and 5 have filed this second appeal.
I have heard learned counsel for the appellants and perused the case file.
Counsel for the appellants contended that appellants No.1 to 3 (defendants No.2, 3 and 5) are not bound by the agreement executed by defendant No.1/appellant No.4 who was no longer owner of the suit land when he executed the impugned agreement in favour of the plaintiff. The contention although apparently very attractive, is completely devoid of substance. Defendants No.2 to 5, in whose favour defendant No.1 had suffered decree dated 03.02.1983, are none else but sons and wife of RSA NO.3295 OF 2011 -3- defendant No.1. The said decree was not reflected in the revenue record till date of impugned agreement i.e. for more than 16 years. Defendant no.1 continued to represent himself to be owner of the suit land notwithstanding decree dated 03.02.1983 suffered by him in favour of his own sons and wife i.e. defendants No.2 to 5. On the contrary, defendant No.1 even sold some other land covered by the same decree to Rattan Lal and others vide sale deed dated 01.07.1987. The said sale was challenged by sons of defendant No.1 on the basis of decree dated 03.02.1983. The said suit was dismissed by trial Court vide judgment and decree dated 06.02.1998 and first appeal in that case was also dismissed vide judgment and decree dated 30.03.2001. Criminal case lodged by Rattan Lal against Prabhati-defendant No.1 regarding fraud and forgery also resulted in conviction and sentence of defendant No.1 by trial Magistrate upheld in appeal by Sessions Court. Counsel for appellants submitted that criminal revision of appellant No.1 is pending in this Court to challenge the said conviction and sentence.
In the aforesaid circumstances, it is apparent that defendants No.2 to 5 cannot take shelter under consent decree dated 03.02.1983 suffered by defendant No.1 who is none else but father of defendants No.2 to 4 and husband of defendant No.5. All the said defendants No.1 to 5 are still together. Even the instant second appeal has been preferred by defendants No.2, 3 and 5 along with defendant No.1 jointly. It is thus apparent that defendants No.2 to 5 have joined hands with defendant No.1 to commit fraud with different persons. Earlier fraud was committed with Rattan Lal. Then there was another agreement dated 31.08.1998 by RSA NO.3295 OF 2011 -4- defendant No.1 with Ram Mehar and then there was impugned agreement dated 20.09.1999 by defendant No.1 with the plaintiff. Consequently defendants No.1 to 5 cannot be allowed to take advantage of their own wrongs and fraud being committed by them with different persons. Decree dated 03.02.1983 was not mutated in the revenue record for 17 long years giving occasion and opportunity to defendant No.1 to commit the aforesaid fraud.
For the reasons aforesaid, I find no merit in this second appeal preferred by defendants No.1 to 3 and 5. Impugned judgments and decrees of the Courts below do not warrant any interference at their instance. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is dismissed in limine. However, nothing in this judgment shall have any bearing on connected RSA preferred by Dalip Singh-defendant No.6.
15th October, 2012 (L. N. MITTAL)
'raj'
JUDGE