Punjab-Haryana High Court
Dr.Pal Singh And Another vs Vinod And Another on 10 February, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
RSA No.481 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.481 of 2012 (O&M)
Date of Decision: February 10, 2012
Dr.Pal Singh and another .......Appellants
Versus
Vinod and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.NK Malhotra, Advocate for the appellants.
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TEJINDER SINGH DHINDSA, J.
The defendant-appellants are in second appeal before this Court.
2. The plaintiffs filed a suit for declaration claiming to be owners in possession in respect to the suit property and seeking a declaration that sale-deed dated 9.12.2004 and consequent mutation No.4304 in favour of the defendants was illegal, null and void. A consequential relief for permanent injunction was also sought restraining the defendants from interfering in the peaceful possession of the plaintiffs over the suit property.
3. It was pleaded that the plaintiffs had purchased the suit property from defendant No.1 through registered sale-deed, dated 30.6.2003, and the requisite entry in the revenue record had also been incorporated in favour of the plaintiffs in pursuance thereto. It was asserted that defendant No.1 had transferred the portion of the suit property as RSA No.481 of 2012 (O&M) 2 marked by letters 'ABEF' shown as red in the site plan in favour of defendant No.2 by executing a subsequent sale-deed on 9.12.2004 and defendant No.1 had been left with no right, title or interest in the suit property. It was further pleaded that defendant No.2 was, in fact, a tenant of the plaintiffs in another shop adjoining the suit property and as such, had full knowledge that defendant No.1 had already sold the suit property to the plaintiffs on 30.6.2003. On the basis of a subsequent sale-deed dated 9.12.2004, defendant No.2 was threatening to dispossess the plaintiffs from the suit property and, in fact, a criminal complaint in this regard had also been lodged by the plaintiffs against the defendants. It is under such factual backdrop that the suit had been instituted.
4. Upon notice, defendant No.1 filed a written statement stating that the dimensions of the suit property as furnished in the site plan were incorrect. It was stated that the sale-deed dated 30.6.2003 was the result of fraud and mis-representation and had been executed under pressure. The plea set up was that the sale-deed had been got executed towards security of a loan. Defendant No.1 stated that he had sold the suit property to defendant No.2 for a sale-consideration of Rs.1,50,000/- on 9.12.2004.
5. Defendant No.2 also filed a written statement taking a plea that he was the bonafide purchaser for valuable consideration from defendant No.1 in pursuance to sale-deed dated 9.12.2004 and that the suit property was under the tenancy of Rajesh Kumar son of Indraj since August, 2005.
6. The parties went to trial on the following two crucial issues framed by the trial Court:
1. Whether the plaintiffs are the full alleged owner and in possession of the suit property fully detailed and described in RSA No.481 of 2012 (O&M) 3 para No.3 of the plaint and fully shown in the site plan attached with the plaint, as prayed for? OPP
2. Whether the sale deed dated 9.12.2004 and the mutation No.4304 sanctioned on the basis of sale deed dated 9.12.2004 are null and void and not binding upon the rights of the plaintiffs and reliable to be set aside?OPP
7. The trial Court having scanned the entire evidence and having heard respective counsel for the parties, decreed the suit of the plaintiffs and held the plaintiffs to be owners of the suit property on the basis of sale-deed dated 30.6.2003 and the subsequent sale-deed dated 9.12.2004 in favour of defendant No.2 and the pursuant mutation No.4304 was held to be illegal, null and void and was, accordingly, set aside.
8. On the issue of possession, the trial Court held that since the immediate possession of the suit property was with the tenant, such tenant could not be ejected without initiating ejectment proceedings under the Haryana Urban (Control of Rent & Eviction) Act. Accordingly, a simple suit for declaration was held to be maintainable.
9. The defendant-appellants being aggrieved by the judgment and decree passed by the trial Court preferred civil appeal praying for their appeal to be accepted in toto. The plaintiffs also filed cross-objections limited to the extent of impugning the finding of the trial Court to the extent of possession praying that they may be held in possession of the suit property. The defendant-appellants are in the present second appeal before this Court impugning the judgment and decree dated 12.12.2011, passed by the Additional District Judge, Palwal, whereby the appeal filed by the present defendant-appellants as also the cross appeal filed by the plaintiff- RSA No.481 of 2012 (O&M) 4 respondents have been dismissed.
10. I have heard Mr.NK Malhotra, Advocate for the appellants at length.
11. The concurrent finding of fact by both the Courts below is that the sale-deed dated 30.6.2003, Exhibit PW1/A, executed by defendant- appellant Pawan Kumar in favour of the plaintiff-respondents stands duly proved in accordance with law. Pawan Kumar, defendant-appellant in his testimony has himself admitted that the possession of the property in dispute was delivered to the plaintiff-respondents upon the sale-deed having been executed on 30.6.2003 for a sale-consideration of Rs.1,50,000/-. Exhibit PW2/B is the house tax assessment register maintained by the Municipal Council which is duly proved on record to demonstrate that the suit property was owned by the plaintiff-respondents. Defendant-appellant Dr.Pal Singh has set up a claim of being a bonafide purchaser in respect of suit property on 9.12.2004 vide sale-deed, Exhibit D1. However, both the Courts below have discarded the sale-deed, Exhibit D1, on cogent and valid reasoning upon noticing contradictions in the pleadings of the defendant-appellants as opposed to the particulars of the property finding a mention in the sale-deed, Exhibit D1. That apart, defendant-appellant relied upon an agreement, Exhibit DX, alleged to have been entered into on 2.6.2002 i.e. prior to the sale-deed dated 30.6.2003, Exhibit PW1/A, which is entered into between defendant No.1 and the plaintiff-respondents. Both the documents i.e. Agreement, Exhibit DX and sale-deed, Exhibit D1, have been discussed and examined threadbare by the Courts below. It has been noticed that in terms of the alleged sale-deed, Exhibit D1, an amount of Rs.1,50,000/- had been paid in lump sum, whereas the alleged agreement dated 2.6.2002, Exhibit RSA No.481 of 2012 (O&M) 5 DX, recites that an amount of Rs. One lac was paid and Rs.50,000/- remained as balance. Further, there is no reference of the agreement, Exhibit DX, in the sale-deed, Exhibit D1. Exhibit DX was also not found entered in any register of the scribe and, accordingly, both the Courts below have concluded the plaintiff-respondents to be the owners of the property in dispute as marked by letters 'ABCD' in the site plan, by virtue of sale-deed dated 30.6.2003, Exhibit PW1/A.
12. This Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure will not embark upon an exercise of re- appreciation of evidence and interfere with the concurrent findings of fact recorded by both the Courts below which are based on cogent and valid reasoning.
13. Learned counsel appearing for the appellants has not been able to show any perversity in the findings so recorded by the Courts below.
14. For the reasons recorded above, the present regular second appeal must fail and is, accordingly, dismissed as it does not raise any question of law, much less a substantial question of law.
15. Appeal dismissed.
( TEJINDER SINGH DHINDSA )
FEBRUARY 10, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No