Punjab-Haryana High Court
Date Of Decision:05.03.2014 vs Kartar Kaur And Others on 5 March, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
vinod kumar
2014.03.11 15:10
I attest to the accuracy and
integrity of this document
Chandigarh
RSA No.2464 of 1987 [1]
RSA No.3094 of 1987
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) RSA No.2464 of 1987
Date of decision:05.03.2014
Sukhdev Singh ...Appellant
Versus
Kartar Kaur and others ...Respondents
(2) RSA No.3094 of 1987
Date of decision:05.03.2014
Kartar Kaur and others ...Appellants
Versus
Sukhdev Singh and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Ms. Pallavi, Advocate,
for the appellant in RSA-2464-1987 and
for respondent no.1 in RSA-3094-1987.
None for the respondents.
*****
RAKESH KUMAR JAIN, J.
Puran Singh filed suit for declaration against Tarlok Singh that he is owner in possession of land bearing khasra nos.248(0-2), 318(3-18), 319(6-5), 320(6-5), 321(7-3), 324(5-0) and 663 (0-2), Kittas 7, total 28 Bighas 05 Biswas, situated within the revenue estate of village Sheikhpura, Tehsil and District Patiala and also prayed for a decree of permanent injunction to restrain the defendant from alienating the suit property in any manner or interfering in his peaceful possession. The plaintiff amended his plaint and impleaded Sukhdev Singh as defendant no.2 alleging that Tarlok vinod kumar 2014.03.11 15:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.2464 of 1987 [2] RSA No.3094 of 1987 ***** Singh (defendant no.1) has sold land bearing khasra no.319(6-5) (0-52-69) to defendant no.2-Sukhdev Singh on 14.12.1981 during the pendency of the suit, which is illegal and not binding on the rights of the plaintiff.
In the amended written statement, defendant no.1 averred that the plaintiff is not owner in possession of the land mentioned in the plaint except khasra nos.241(0-2), 663(0-2) and 318(3-18). He also admitted the sale deed dated 14.12.1981 in favour of defendant no.2.
In the written statement filed by defendant no.2, it was alleged that before purchasing the land, he verified the ownership of defendant no.1 from the revenue record as well as from the co-villagers.
In the replication, it is alleged by the plaintiff that he came to know that defendant no.1 has obtained a decree from the Court of Sub Judge 1st Class, Patiala on 08.05.1981 which is a nullity as the plaintiff had never engaged any lawyer nor did he file any admitted written statement. He also added that he never appeared in that suit nor suffered any statement in favour of defendant no.1.
On the pleadings of the parties, following issues were framed by the Trial Court:-
"1. Whether the plaintiff is the owner of the suit land?OPP.
2. Whether the sale of Khasra No.319, by defendant no.1, to defendant no.2 is illegal, and void as alleged?OPP.
3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD.
4. Whether the suit is not maintainable?OPD. vinod kumar 2014.03.11 15:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.2464 of 1987 [3] RSA No.3094 of 1987
*****
5. Whether the plaintiff has no cause of action to file the present suit?OPD.
Addl. Issue No.1.
Whether defendant No.2 is bona fide purchaser of Khasra No.319, for consideration and to what effect?OPP.
Addl. Issue No.2.
Whether the defendants are entitled to special costs?OPD.
6. Relief."
Since Tarlok Singh claimed ownership over the land in dispute including khasra no.319, sold to defendant no.2 on 14.12.1981, the Trial Court recorded a finding, after appreciating the evidence on record, that the decree dated 08.05.1981 obtained by Tarlok Singh was by practicing fraud upon the plaintiff and held that the said decree dated 08.05.1981 is null and void. Once the decree dated 08.05.1981 was declared to be null and void, defendant no.1, who claimed ownership on the basis of the said decree, had no saleable rights in khasra no.319, therefore, the sale in favour of defendant no.2 was held to be illegal. Insofar as khasra nos.318 and 324 are concerned, which were subject matter of the sale deed Ex.D1, which defendant no.2 claimed to have purchased from the plaintiff for `13,000/-, the same was upheld and, thus, the suit declaring the plaintiff to be owner in possession of khasra nos.319, 320, 321 and 663 was decreed and in respect of khasra nos.318 and 324 was dismissed.
Two appeals were preferred against the judgment and decree of the Trial Court; one by Sukhdev Singh (defendant no.2) bearing Appeal vinod kumar 2014.03.11 15:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.2464 of 1987 [4] RSA No.3094 of 1987 ***** No.191/1986 and the another by the plaintiff bearing Appeal No.200/1986. Both the appeals were dismissed by the lower Appellate Court vide judgment and decree dated 20.07.1987.
Consequently, aforesaid two appeals have been filed in this Court bearing RSA No.2464 of 1987 by Sukhdev Singh who is the purchaser from Tarlok Singh of khasra no.319 and RSA No.3094 of 1987 by Kartar Kaur and others in regard to the decree of the Trial Court in respect of khasra nos.318 and 324 which Puran Singh himself had sold to Sukhdev Singh and the said sale deed has been upheld by the Trial Court.
Counsel for the appellant has submitted that the sale by Tarlok Singh in favour of Sukhdev Singh on 14.12.1981 during the pendency of the suit is not hit by lis-pendence because the decree suffered by Puran Singh in favour of Tarlok Singh was collusive decree and as per Section 52 of the Transfer of Property Act, 1882, if the decree is collusive, then Section 52 of the Act would not come into play. Section 52 of he Act is reproduced as under:-
"52. Transfer of property pending suit relating thereto.--During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by vinod kumar 2014.03.11 15:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.2464 of 1987 [5] RSA No.3094 of 1987 ***** any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
There is no dispute that there is an exception in the aforesaid Section of its application if the suit decreed is collusive in nature but in the present case, the suit during which the sale deed was effected by defendant no.1 in favour of defendant no.2 is not a collusive suit rather it was a contested suit and sale in favour of defendant no.2 has failed because the decree obtained by defendant no.1 from the plaintiff has not been proved to be a valid decree, therefore, it has been held by the Courts below that defendant no.1 had not become the owner of khasra no.319 by way of vinod kumar 2014.03.11 15:10 I attest to the accuracy and integrity of this document Chandigarh RSA No.2464 of 1987 [6] RSA No.3094 of 1987 ***** decree dated 08.05.1981 which has been held to be fraudulent and nonest insofar as the rights of the plaintiff are concerned.
Counsel for the appellant Sukhdev Singh has also referred to Section 111 of the Indian Evidence Act, 1872 to contend that the transaction by defendant no.2 with defendant no.1 was in good faith and was, thus, protected. This submission made by counsel for the appellant is also of no avail because once defendant no.1 was not having any saleable right in khasra no.319, he could not have executed the sale deed and there is no question of any bona fide purchaser on the part of defendant no.2 because it is well settled that a party who does not own the property cannot transfer the title therein to the other person.
As far as the other appeal bearing RSA No.3094 of 1987 is concerned, no-one has put in appearance on behalf of the appellants. Even otherwise, both the Courts below have held that the plaintiff himself had sold the land in dispute to defendant no.2 against valid sale consideration insofar as khasra nos.318 and 324 are concerned.
In view of the aforesaid discussion, I do not find any merit in both the appeals nor do I find any question of law much-less substantial involved therein for the purpose of taking a view different from the view taken by the Courts below.
Thus, both the appeals are hereby dismissed.
March 05, 2014 (Rakesh Kumar Jain) vinod* Judge