Rajesh v. Ram Kumar & Anr.

Present: Mr.Chanderhas Yadav, Advocate for the appellant. L. N. MITTAL, J (ORAL) CM No.11005-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 08 days in filing the appeal is condoned. Main Appeal. Plaintiff-Rajesh has filed the instant second appeal having lost in both the Courts below. Appellant Rajesh filed suit for permanent injunction restraining the defendants/respondents from interfering in possession of the plaintiff over the suit land measuring 6 kanals comprised of killa No.14 alleging that appellant's father Ram Kumar defendant No.1 sold 6 kanals land being 1/4th share of 24 kanals land comprised of killa Nos.14 (6-0), 17 (8-0), 22 (8-0) and 23/2 (2-0) to defendant No.2 Balwan alias Balwan Singh and his three brothers vide sale deed dated 13.10.1977. The plaintiff successfully preempted the said sale and became owner in possession of 6 RSA No.3731 of 2010 (O & M) -2- kanals land in suit comprised of killa No.14 which is still in his possession. However, during pendency of the preemption suit, defendant No.1 sold 8 kanals land being 1/4th share of 32 kanals land comprised of killa Nos.17 (8-0), 22(8-0), 18 (8-0) and 19 (8-0) to defendant No.2 vide sale deed dated 31.05.1978. Defendant No.1 had no right to sell the same as he had already sold 1/4th share in killa Nos.17 and 22 vide earlier sale deed dated 13.10.1977. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in possession of the plaintiff over 6 kanals land of killa No.14. Defendant No.1 did not contest the suit and was proceeded ex parte. Defendant No.2 contested the suit. Defendant No.2 admitted that defendant No.1 had sold 1/4th share in 24 kanals land to defendant No.2 and his three brothers vide sale deed dated

13.10.1977 and the said sale was preempted by the plaintiff. Defendant No.2 also admitted that defendant No.1 subsequently sold 8 kanals land being 1/4th share of 32 kanals land to defendant No.2 vide sale deed dated 31.05.1978. However, other plaint allegations were denied. It was denied that possession of 6 kanals land of killa No.14 was handedover to the plaintiff pursuant to decree in preemption suit. It was also alleged that sale deed dated 31.05.1978 is legal and valid. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 13.05.2009 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Jhajjar vide judgment and decree dated

31.05.2010. Feeling aggrieved, the plaintiff has preferred the instant RSA No.3731 of 2010 (O & M) -3- second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that since passing of preemption decree, plaintiff is in possession of suit land measuring 6 kanals of killa No.14 and defendants have no right to interfere in plaintiff's possession thereon. The contention is devoid of any merit. Defendant No.2 specifically denied that plaintiff was handedover possession of the suit land measuring 6 kanals of killa No.14 pursuant to preemption decree. The plaintiff has not produced any document on record to depict that he ever came in actual physical possession of the suit land measuring 6 kanals of killa No.14. Report on warrant of possession, through which the plaintiff might have obtained possession pursuant to preemption decree, has not been produced nor any revenue record has been produced in evidence to depict that the plaintiff is in possession of the suit land. On the contrary, admittedly defendant No.1 had sold 6 kanals land being 1/4th share of 24 kanals land and the same was preempted. Consequently, pursuant to preemption decree, the plaintiff could not come into possession of specific 6 kanals land of killa No.14, but could come in joint possession of 1/4th share of 24 kanals land which had been sold by defendant No.1 to defendant No.2 and his three borthers. Courts below have rightly found that plaintiff has become cosharer in the joint land to the extent of 6 kanals, but the plaintiff has miserably failed to prove that he is in possession of the specific suit land measuring 6 kanals of killa No.14. RSA No.3731 of 2010 (O & M) -4- Learned counsel for the appellant also contended that defendant No.1 having already sold 1/4th share of killa Nos.17 and 18 vide sale deed dated 13.10.1977 could not have alienated it again vide sale deed dated 31.05.1978. The contention, although forceful on first blush, is again devoid of merit. Defendant No.1 had 1/4th share in 191 kanals 10 marlas joint land and, therefore, his share came to 47 kanals 17 ½ marlas. However, defendant No.1 sold 6 kanals land vide sale deed dated 13.10.1977 and 8 kanals land vide sale deed dated 31.05.1978. Defendant No.1 thus sold 14 kanals land only out of his share of 47 kanals 17½ marlas land. Consequently, sale by defendant No.1 to defendant No.2 of 8 kanals land vide sale deed dated 31.05.1978 being within the share of defendant No.1 is perfectly legal and valid and is not vitiated in any manner. It may be added that sale of specific numbers by the cosharer out of joint land would not be confined to the said specific land and the vendee would get title over proportionate share in the joint land subject to partition. Consequently, sale by defendant No.1 to defendant No.2 vide sale deed dated 31.05.1978 is not vitiated in any manner. It may also be mentioned with significance that plaintiff has claimed his possession over land of killa No.14 and consequently, alleged infirmity in sale of land of killa Nos.17 and 18 cannot be assailed by the plaintiff, when he does not claim any right, title or interest therein. In addition to the aforesaid, sale by defendant No.1 to defendant No.2 was made on 31.05.1978 whereas the instant suit to challenge the same was filed on 31.05.2003 i.e exactly after 25 years. Consequently, the suit is also hopelessly RSA No.3731 of 2010 (O & M) -5- barred by limitation. There is concurrent finding by both the Courts below after appreciation of evidence. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely devoid of any merit and is accordingly dismissed in limine.

16.09.2010. A. Kaundal ( L. N. MITTAL ) JUDGE