Meena Dhawan v. Smt. Joyti Garg & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Harkesh Manuja, Advocate for the appellant. Mr. Sanjiv Bansal, Advocate for respondent Nos.1 and 2. Mr. Aman Dhir, Advocate for respondent Nos.3 and 4. L. N. MITTAL, J (ORAL) This is second appeal by Meena Dhawan-defendant No.3. Respondent Nos.1 and 2 filed suit alleging that they purchased 4 kanals 16 marlas land from Pyare defendant No.4 (respondent No.5 herein) vide registered sale deed datded

29.05.1984 and are, therefore, owners in possession thereof. Subsequently, defendant Nos.1 and 2 (respondent Nos.3 and 4 herein) purchased 2 kanals land and defendant No.3-appellant also purchased 2 kanals land from Pyare-defendant No.4 vide separate sale deeds, both dated 25.01.1985. The plaintiffs alleged that the said sale deeds and consequent mutations in favour of defendant Nos.1 to 3 are illegal, null and void. The plaintiffs accordingly sought declaration that they are owners in possession of 4 kanals 16 marlas land in suit and the two sale deeds dated 25.01.1985 in favour of RSA No.3226 of 2007 -2- defendant Nos.1 to 3 and consequent mutations are null and void and not binding on the plaintiffs. Relief of permanent injunction was also claimed restraining defendant Nos.1 to 3 from alienating the suit land. Defendant No.4 was proceeded ex parte in the trial Court. Defendant Nos.1 to 3 contested the suit and inter alia pleaded that they purchased land measuring 4 kanals from defendant No.4 vide registered sale deeds dated 25.01.1985 through a registered society vide agreement dated 16.10.1983 executed by defendant No.4. Averments of the plaintiffs were controverted. Learned Civil Judge (Junior Division), Faridabad vide judgment and decree dated 16.10.2001 found that agreement dated

16.12.1983 pleaded by contesting defendants was no agreement in eyes of law for transfer of land in question. However, the trial Court found that defendant No.4 Pyare was owner of 9 kanals 16 marlas land and even after sale of 4 kanals 16 marlas land out of it to the plaintiff, Pyare was left with 5 kanals land and, therefore, sale deeds of 4 kanals land in all in favour of defendant Nos.1 to 3 are also legal and valid. Plaintiffs were, however, held to be owners in possession of 4 kanals 16 marlas land purchased by them from defendant No.4 prior in time to the sales in favour of defendant Nos.1 to 3. The trial Court accordingly decreed the suit of the plaintiffs partly declaring them to be owners in possession of 4 kanals 16 marlas land claimed by them, but the sale deeds in favour of defendant Nos.1 to 3 regarding 4 kanals land were also held to be valid and binding on the parties, who were held to have become co-sharers in the total land. RSA No.3226 of 2007 -3- Decree for permanent injunction was also granted, restraining defendant Nos.1 to 3 from alienating specific portion of the land to anybody else. Plaintiffs preferred first appeal against the judgment and decree of the trial Court. Learned Additional District Judge (Ad hoc), Fast Track Court, Faridabad vide judgment and decree dated

06.06.2007 allowed the appeal preferred by the plaintiffs and modified the judgment and decree of the trial Court holding that plaintiffs are owners in possession of 4 kanals 16 marlas land and the sale deeds in favour of defendant Nos.1 to 3 are not binding on the rights of the plaintiffs. Defendant Nos.1 to 3 were consequently restrained from alienating the land which may affect the rights of the plaintiffs. Feeling aggrieved, only defendant No.3 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that Pyare-respondent No.5 has since died. However, as prayed for by learned counsel for the parties, since Pyare was only a proforma respondent, impleadment of his legal representatives and service of notice on them is dispensed with. Learned counsel for the appellant vehemently contended that Pyare was left with more than 4 kanals land after sale of 4 kanals 16 marlas land to the plaintiffs and, therefore, sale of 4 kanals land in favour of defendant Nos.1 to 3 by Pyare-defendant No.4 vide sale deeds dated 25.01.1985 is valid. On the other hand, learned counsel for the RSA No.3226 of 2007 -4- plaintiffs/respondent Nos.1 and 2 contended that in fact area at the spot is lesser than the area depicted in the revenue record and the only concern of the plaintiffs is that being purchasers prior in time, their area of land measuring 4 kanals 16 marlas should be protected and in the case of any shortfall in area, only defendant Nos.1 to 3 shall suffer the consequences. I have carefully considered the rival contentions. There is no dispute that according to revenue record, Pyare had 1/10th share in 91 kanals 16 marlas land which would come to 9 kanals 4 marlas approximately. Thus after sale of 4 kanals 16 marlas of land to plaintiffs, Pyare was left with 4 kanals 8 marlas. However, defendant Nos.1 to 3 have purchased only 4 kanals land from Pyare defendant No.4. Consequently, it cannot be said that Pyare has sold excess area to defendant Nos.1 to 3. However, at the same time, if at the spot there is found to be any shortfall in the actual area, the plaintiffs would be entitled to retain their 4 kanals 16 marlas land purchased by them because they purchased it prior in time than the sale deeds in favour of defendant Nos.1 to 3. However, sale deeds in favour of defendant Nos.1 to 3 are also legal and valid as the same do not pertain to area in excess of the share held by the common vendor Pyare defendant No.4. With the aforesaid clarification and observations, the instant appeal stands disposed of accordingly.

16.02.2010. A. Kaundal ( L. N. MITTAL ) JUDGE