AT CHANDIGARH v. Rajinder PalKhosla & Ors.

The plaintiff is in second appeal. He had filed a suit for declaration to the effect that he was owner of land measuring 48 kanals and 6 marlas, fully detailed in the head note of the plaint (hereinafter described as `the suit property') along with the structures and fixtures thereon. He also prayed for a decree of mandatory injunction directing the defendants to restore the possession of the suit property to him. It was pleaded by the plaintiff that defendant no.1-Rajinder Pal Khosla, who is his real brother, had alienated a part of the suit property vide three sale deeds to defendant no.2-Ram Asra Tiwari, out of which two were executed on 22.12.1989 and the third one on 2.5.1990. It was further R.S.A.No.3246 of 2009 -2- .... pleaded that even though, construction of a building existed on that part of the suit property, yet, the same was not mentioned in the sale deeds. He alleged that defendant no.1 had again sold land measuring 11 kanals 19 marlas out of the suit property to defendant no.3-A.D.Kher vide sale deed dated 30.4.1990 for a consideration of Rs.1,57,344/-. It was further alleged that defendant no.1 also sold some part of the suit property to defendant no.4-Suresh Kumar for the similar consideration. He had disputed the authority of defendant no.1 to sell the suit property in the aforesaid manner and pleaded that the transactions were fictitious. It was next pleaded that defendant nos. 2 to 4 had further sold the property acquired by them to respondent nos. 5 to 8 on 17.7.1990 vide four sale deeds which were also fictitious and hence, the suit. The persons, who were arrayed as defendant nos. 1 to 4 did not appear despite notice and were proceeded against ex parte. Defendant nos. 5 to 8, however, appeared and contested the suit and filed a joint written statement pleading therein that the suit property including structures and immovable articles were the properties of a partnership firm. It was further pleaded that the plaintiff, who was a partner in the firm, vide dissolution deed dated 3.1.1976, had relinquished all his claims regarding the suit property and other immovable & movable articles in favour of defendant no.1, who acted as per the terms of the dissolution deed. Estoppel was also pleaded against the conduct of the plaintiff. It was averred that the plaintiff was never the owner and rather, defendant no.1 had always represented himself to be the owner of the suit property which is R.S.A.No.3246 of 2009 -3- .... borne out from the fact that even in the execution proceedings arising out of civil suit no.79 of 1977, it was defendant no.1, who had contested the same, but the plaintiff was nowhere in picture, even though he was party to that litigation. The plea of bona fide purchasers was also raised. It was pleaded that defendant no.1 and firm-M/S Khosla Rice mills, Sarna, Pathankot owed some amounts to State Bank of India, Pathankot and a decree for recovery of Rs.11,36,914.25 was passed against them including the plaintiff in civil suit no.79 of 1977 decided on 3.3.1980; that in execution of that decree, the suit property, the structures existing over it and other moveable articles were got attached by the bank and one Shri Prem Bhatia, Advocate was appointed as Receiver; that then defendant no.1 applied for permission to make sales on the condition that the sale proceeds would be deposited in the Court for payment towards the decretal amount; that the permission was granted to him on that condition; that he then made the sales in question; that thereafter the Executing Court had made order an order for auction of the remaining part of the suit property and defendant no.1, in order to get maximum price, entered into agreement to sell with defendant no.3, but the Executing Court had declined the necessary permission and the matter was taken to this Court in Civil Misc. No.32-C1 of 1990, defendant no.1 was allowed to sell the suit property till 15.5.1990; that the sales made in favour of defendant nos. 2 to 4 were then put up before the Executing Court for confirmation which did so vide its orders dated 30.4.1990 and 4.6.1990; that the sale proceeds were deposited with the Executing Court and, therefore, the plaintiff had no right to challenge R.S.A.No.3246 of 2009 -4- .... the same. It was also pleaded that since the plaintiff had relinquished all his rights and title in the suit property, he had no interest therein. They claimed themselves to be bona fide purchasers of the suit property from defendant nos. 2 to 4. parties:- The following issues were framed on the pleadings of the

1. Whether the plaintiff is owner of the suit land along with structures and fittings of things lying therein as alleged?OPP

2. Whether two sale deeds dated 22.12.1989 executed by defendant no.1 in favour of defendant no.2 and also the sale deeds dated 2.5.1990 and 30.4.1990 are illegal, being result of collusion and fraud, if so, its effect?OPP

3. Whether defendant nos. 2 to 4 could not have alienated the suit property to defendant nos. 5 to 8 and the sale deeds in favour of defendant nos. 5 to 8 executed on 17.7.1990 are illegal being result of fraud and collusion as alleged?OPP

4. Whether the plaintiff is entitled to decree for declaration and also in consequential relief of decree for mandatory injunction as prayed for?OPP

5. Whether the plaintiff has no locus standi to file this suit as alleged?OPD

6. Whether the plaintiff relinquished his claim by dissolution deed dated 3.1.1976, if so, its effect?OPD

7. Whether the plaintiff is estopped by his act and conduct R.S.A.No.3246 of 2009 -5- .... from filing this suit as alleged?OPD

8. Whether defendant nos. 5 to 8 being bona fide purchaser for valuable consideration are entitled to protection of Section 41 of TPA, if so, its effect?OPD

9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction as alleged/OPD

10. Whether material facts have been concealed and the suit is vexatious if so its effect?OPD

11. Whether the suit is barred by the provisions of Section 47 and 11 of CPC, if so, its effect?OPD 11-A Whether plaintiff is entitled to relief of mandatory injunction and possession as prayed for?OPP

12. Relief. After appraisal of the evidence on record, Civil Judge (Junior Division), Pathankot, vide his judgment & decree dated 15.11.1997, dismissed the suit with costs. Feeling aggrieved, the plaintiff preferred an appeal which was also dismissed by the Additional District Judge, Gurdaspur resulting in the filing of the instant appeal. Both the Courts below concluded that the suit property was sold to satisfy the decree dated 3.3.1980 in the manner as described by the contesting defendants and they did not find any infirmity therein. Learned counsel for the plaintiff has contended that the findings recorded by the Courts below are erroneous and, therefore, are R.S.A.No.3246 of 2009 -6- .... liable to be set aside. He further contended that the relinquishment deed was not a registered document and, therefore, the interest of the plaintiff in the suit property still subsisted. I have thoughtfully considered the contentions of the learned counsel for the plaintiff and have perused the impugned judgments. Documents, Exhibits DA, DB and DC which were duly proved on record, show that the suit property belonged a partnership firm and the same came to the share of other partners after the plaintiff retired from the firm. The Courts below have rightly construed Exhibit -DA as a document which showed that the land had been purchased by the plaintiff, but the building had been constructed thereon by the partnership firm. There are other documents to show that dissolution deed was signed by the plaintiff himself and he had also furnished declaration, Exhibit-DB and disclaimer, Exhibit-DC. The plaintiff, who pleaded otherwise, could not show the terms of the partnership deed which concededly was with him, but for the reasons best known to him, he withheld the same from the Court. That apart, his plea that he was owner of the suit property falls flat on the face in view of the earlier execution proceedings which took place in 1980 and concluded by the sale deeds which are now being disputed. The plaintiff was a party to the suit in which decree dated

3.3.1980 was passed. He never questioned the ownership of the partnership firm. Having regard to the aforesaid when there is over-whelming evidence to show that the plaintiff had relinquished his rights in the suit R.S.A.No.3246 of 2009 -7- .... property which was sold pursuant to the execution proceedings carried out in pursuance to decree dated 3.3.1980, I am of the opinion that there is no infirmity in the impugned judgments. Moreover, no question of law, much less a substantial question of law has been shown to have arisen for consideration by this Court. Accordingly, the instant appeal is dismissed being without any merit. March 08,2010 “SCM” ( Mahesh Grover ) Judge