Smt. Chand Kaur & Ors. v. Bhag Singh & Ors.

Mr. G.S. Hooda, Advocate for the appellants. Rakesh Kumar Garg, J. This is plaintiffs' regular second appeal challenging the judgment and decrees of the Courts below whereby their suit for declaration with consequential relief of permanent injunction, was dismissed. As per the averments made in the suit, Shiv Lal and Sish Ram were joint owners and co-sharers of 27 Bigha Pukhta situated in village Mandothi Tehsil Bahadurgarh, District Rohtak. In khewat No.1, the share of Shiv Lal was 2 Bigha Pukhta and remaining share was of defendant- respondent No.1. In khewat No.6 both Shiv Lal and his wife Sarti and Sish Ram were owners in possession of equal shares i.e. ½ each. Sish Ram died and his share was inherited by Suraj Kaur, mother of defendant- respondent No.1. Share of Shiv Lal was inherited by his legal heirs including plaintiff-appellant Zile Singh. Smt. Suraj Kaur sold land measuring 4 bighas 12 biswa pukhta to defendant-respondent No.1 for a sale consideration of Rs.6,000/-. She again on 20.6.1958 sold land measuring 7 bighas 13 biswa to defendant-respondents No.8 and 9, vide registered sale deed No.1683. Thereafter, Suraj Kaur sold the land RSA No.4732 of 2009 2 measuring 2 Bighas 1 Biswa pukhta in favour of defendant-respondent No.2 vide registered sale deed No.1106 dated 11.6.1959. She also sold the land comprised in khasra No.1132 measuring 1 bigha 16 biswa in favour of plaintiff-appellant Zile Singh, vide registered sale deed No.1107 dated 11.6.1959. Defendant-respondent No.1 sold the land measuring 2 bighas 2 biswa to defendant-respondent No.1 to 12 in khewat No.1 on

16.5.1964. He further pleaded that all the aforesaid sale deeds were illegal as they had no authority to sell the khasra number. A suit for possession by way of pre-emption was filed by defendant-respondents No.4 and 5 against sale of the land by Smt. Suraj Kaur in favour of defendant-respondent No.3 and after obtaining a decree of pre-emption suit, transferred the land in favour of defendant-respondents No.6 to 7. A suit for possession by way of pre-emption was filed by Shiv Lal, father of plaintiff-appellant Zile Singh against the sale of the land by defendant-respondent No.1 in faovur of defendant-respondents No.10 and 11. Again Smt. Suraj Kaur sold the land measuring 5 bighas 18 biswa in favour of Balde etc. Defendant- respondent No.1 sold the land measuring 5 bighas 1 biswa in favour of defendant-respondents No.14 to 20. Again defendant-respondent No.1 also sold the land khasra No.4287/1069 (2-2) in favour of defendant- respondent No.12. All the aforesaid sales were illegal as it was without partition of the joint khewat. On 19.7.1988, land comprised in khewat No.6, khasra No.4602/2096/2 (0-6) and 4135/2898 (0-6) was sold by defendant- respondent No.1 in favour of plaintiff-appellant. Smt. Suraj Kaur was owner of 21 bighas 10 biswa in khewat No.1 whereas she and her daughter Smt. Prem Kaur sold the land measuring 25 bighas 7 biswa i.e. 3 bigha 17 bigha in excess. The plaintiff-appellant was a bona fide purchase of khasra No.1132 measuring 1 bigha 16 biswa but in the revenue record, there was no entry pertaining to this khasra number in his favour. He RSA No.4732 of 2009 3 further pleaded that he is still owner in joint possession as a co-sharers in both khewat numbers No.1 and 6 as no consolidation and partition had taken place and both these khewats are still joint. Upon notice, defendant-respondents No.4A to 4C, 6C and 6D and 8 filed joint written statement wherein they admitted that Smt. Suraj had sold her land upto her share in favour of vendees and defendant/ respondent No.22 was exclusive owner in possession of the land mentioned in sale deed since the date of its purchase. Rests of the averments were denied and raised preliminary objections like limitation, maintainability and locus-standi etc. On the other hand, defendant-respondents No.12 to 18 filed written statement and took preliminary objections of cause of action, estoppel, maintainability. On merits, they pleaded that sale deeds including the sale of the plaintiff-appellant was illegal and void and sale in favour of answering defendant-respondents was valid and legal. The answering defendant-respondents were in possession of the land since the date of its purchase and they had every right to sale the specific khasra numbers. Remaining defendant-respondents proceeded against ex parte before the trial Court. Replication filed by the plaintiff-appellant wherein he denied the averments of the written statement and reasserted those of the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether both the parties are owner and are in joint possession of the suit land which is still unpartition till today? OPP

2. Whether the sale-deed executed by defendant No.1 and his mother Suraj Kaur alienating the specific RSA No.4732 of 2009 4 khasra numbers are illegal, null and void and liable to be set aside? OPP

4. Whether the suit is barred by limitation? OPD Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiff has no locus-standi to file the present suit? OPD

6. Relief.” Both the parties adduced oral as well as documentary evidence to their complete satisfaction. On appraisal of submissions of the parties and after going through the record, the trial Court dismissed the suit of the plaintiff-appellant, vide judgment and decree dated 9.4.2001. Feeling aggrieved therefrom, the appellants preferred an appeal before the Lower Appellate Court which was dismissed on the ground of limitation. Still not satisfied from the impugned judgment and decrees of the Courts below, learned counsel for the appellants has filed the instant appeal. Learned counsel for the appellants has vehemently argued that the findings of the Courts below are incorrect and suit of the appellants is not barred by limitation. I have heard learned counsel for the appellants. It is matter of record that the appellants had filed a suit on

20.11.1995 challenging the sale deeds pertaining to the year 1959, 1964 and 1988 on the ground that Smt. Suraj Kaur and Smt. Prem Kaur were not competent to transfer the specific khasra numbers. It may be noticed that the plaintiff Zile Singh had also cultivated the specific khasra numbers of RSA No.4732 of 2009 5 the suit land and his case falls on this ground alone because he had not come with clean hands in the Court and he is not entitled to any equitable relief. It may also be noticed that there is no evidence according to Section 3 of the Transfer of Property Act. The registration of the sale deed is in itself a notice and therefore, right to sue accrued to the appellants immediately on registration of the aforesaid sale deeds. The suit for declaration could only be filed within a period of three years. Hence the suit filed the plaintiff-appellant is clearly time barred. Thus, no fault can be found with the findings of the Courts below. No substantial question of law arises. Dismissed. July 20, 2010 (RAKESH KUMAR GARG) JUDGE RSA No.4732 of 2009 6