R.S.A.No. 3792 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3792 of 2009 (O&M)
Date of decision: 23.10.2009
Satbir Singh
......Appellant
Versus
Jugbir Singh @ Jaibir Singh and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Shailendra Jain, Advocate,
for the appellant.
****
SABINA, J.
Plaintiff Jugbir Singh @ Jaibir Singh filed a suit for
declaration, mandatory injunction and possession which was
decreed by the Additiional Civil Judge (Sr.Divn.), Gurgaon vide
judgment and decree dated 24.5.2006. In appeal, filed by defendant
No.3, the said judgment and decree were upheld by the Additional
District Judge, Gurgaon vide judgment and decree dated 15.11.2007.
Hence, the present appeal by the defendant No.3.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 to 4 of its judgment, are as under:-
“2. Briefly stated the facts of the present case are
R.S.A.No. 3792 of 2009 (O&M) 2that plaintiff is owner of the strip of land of size 13 x 27′
measuring approximately 40 square yards shown in red
colour and marked by letters ABCD in the site plan which
is forming part and parcel of khasra No. 2923, situated
within the residential colony of Laxman Vihar Phase-II,
Gurgaon (hereinafter called as suit property) and which is
bounded as under:-
East: Vacant land of the plaintiff shown in yellow
colour, forming part of Khasra No. 2923/3.
West: Vacant land of the plaintiff shown in yellow
colour and thereafter houses of Ravinder and
Mahesh who illegally encroached upon the
land of the plaintiff the size 13 x 25′.
North: Land of Khasra No. 2923/2 owned by the
defendant No.3, who sold the same to the
defendants No. 1 and 2 through the sale deed
in question.
South: Land of the plaintiff forming part of Khasra
No. 2923/3 being used as rasta of 18′ wide
and thereafter other plots of the plaintiff.
It was averred that plaintiff became owner of suit property
on the basis of family settlement, re-affirmed in civil suit
No. 126/95 decided on 4.12.1995 and mutation No.
18408 sanctioned and 20.3.1996; that family settlement
R.S.A.No. 3792 of 2009 (O&M) 3
was duly acted upon by the parties concerned; that
defendant No.3, brother of plaintiff has now been became
dishonest and out of mala fide, he sold the plot
measuring 180 sq. yards including suit property to
defendants no.1 and 2 through registered sale deed
dated 7.2.97 for sale consideration of Rs. 1,80,000/-. It
was averred that the sale deed dated 7.2.97 is illegal, null
and void and not binding upon the rights of plaintiff, but
defendants no. 1 and 2 have raised the construction of
boundary wall during pendency of previous suit titled as
Jugbir Singh vs. Satbir Singh which is still pending and
plaintiff is entitled to get possession of suit land free from
all kinds of construction. It was averred that in previous
suit titled Jugbir Singh vs. Satbir Singh, Local
Commissioner submitted his report on 22.5.1999 about
raising of construction on suit land by defendants No. 1
and 2 during pendency of that suit and plaintiff also got
demarcated his share of land through Gian Chand, the
then Office Kanungo,Gurgaon ; that said Gian Chand
carried out demarcation and found that defendant NO.3
had illegally sold some pieces of land including suit
property belonging to plaintiff by selling away his own
land to defendant No.1. It was pleaded that on coming to
know about illegally committed by defendant no.3,
R.S.A.No. 3792 of 2009 (O&M) 4
plaintiff made request to defendants not to raise
construction, but of no use. Hence the present suit.
3. On being noticed, defendants appeared.
Defendants No. 1 and 2 filed written statement
controverting the claim of the plaintiff by taking certain
preliminary objections regarding maintainability, no cause
of action, suit being time barred, estopped etc. On
merits, almost all other averments of the plaintiff were
denied and it has been strenuously averred that
answering defendants are bonafide purchaser for
consideration ; that after purchase the answering
defendants have raised a compound walls of the height
of 5.5 feet over the plot in question and there has been no
objection of any kind from any person including plaintiff.
It was asserted that before purchase, answering
defendants even had inquired from plaintiff himself and on
his assurance, answering defendants did purchase suit
property. It was emphasised that plaintiff and defendant
No.3 have colluded with each other to cause illegal loss
to the answering defendants. It was prayed that suit be
dismissed with costs. \
4. Defendant No. 3 also filed separate written
statement dispiting the claim of plaintiff. The following
preliminary objections were taken that suit is legally not
R.S.A.No. 3792 of 2009 (O&M) 5maintainable in the present form; that suit is barred under
Order 2 rule 2 CPC; that plaintiff is estopped from filing
the present suit by his own act and conduct: that suit is
barred under Order 23 CPC etc. on merits, ownership of
plaintiff over the suit property was denied by pleading the
answering defendants did not sell any land of plaintiff.
Rather, answering defendant sold the land out of his own
land to defendants no. 1 and 2. Request for dismissal of
suit was made.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is owner of strip of land
of size 13′ x 27′ stated in para no. 1 of the plaint? Opp
2. Whether the said strip of land in suit is part
and parcel of Khasra No. 2923/3 of Gurgaon village?
OPP
3. Whether the sale deed bearing Vasika No.
15879 dated 7.2.97 executed by defendant no. 3 in favour
of defendants no. 1 and 2 qua the strip of land in suit is
illegal, null and void and not binding upon the
plaintiff?OPP
4. Whether the plaintiff is entitled to possession
of the strip of land in suit?OPP
5. Whether the suit is not maintainable?OPD
R.S.A.No. 3792 of 2009 (O&M) 6
6. Whether the plaintiff has no cause of action to
file the suit?OPD
7. Whether the suit is time barred? OPD
8. Whether the plaitniff is estopped from filing the
present suit as alleged?OPD
9. Whether the suit is bad for non-joinder of
necessary parties as alleged?OPD
10. Whether the defendants no. 1 and 2 are the
bonafide purchasers for valuable consideration and notice
to the plaintiff?OPD
11. Whether suit is collusive between the plaintiff
and defendantl no. 3 as alleged?OPD
12. Whether the suit is not properly valued for the
purposes of court fees and jurisdiction as alleged?OPD
13. Whether the suit is barred under Order 2 rule
2 CPC?OPD
14. Relief.
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal is devoid of any merit and
deserves dismissal.
In the present case, the plaintiff had filed a suit for
declaration that he was absolute owner of the suit property. Learned
Appellate Court, in para Nos. 14 to 17, in the impugned judgment
held as under:-
R.S.A.No. 3792 of 2009 (O&M) 7
14. Now the moot question in this case is as to
whether the appellant Satbir has no right to alienate the
land marked by letters ABCD as shown in red colour in
site plan Ex.P1. No doubt, on behalf of appellant, an
argument has been raised that there is ;difference in area
as per Annexure-C site plan Ex.PW6/5 and mutation
Ex.PX/9 and as per report Ex.PX/3/EX.PX/4 taken along
with site plan Ex.PX/5. However, for the reasons
mentioned herein, I am of the confirmed view that under
the facts and circumstances of the present case, which
also shows the real intention of the parties as held in
Roshan Lal vs. Ganpat and others (supra), 2000-2 PLR
39, the area which was partitioned from North to South
and from East to West remained the same. Now when
appellant Satbir stepped into witness box as DW1, he has
admitted that there was wall in the Northern side of Z
portion of site plan Ex.PW6/5. He has also admitted that
on the Southern side of Y portion of the site plan
Ex.PW6/5, when site plan Ex.PW6/5 was got prepared
houses had been constructed there. Thus, measurement
of the area which was partitioned amongst Satbir and his
brothers was definite from North to South. Now it may be
added here that as statement of Satbir Singh DW, the
area in between from East to West also remained the
R.S.A.No. 3792 of 2009 (O&M) 8same as Satbir when stepped into witness box as DW1, he ;
has admitted that in site plan Ex.P1, beyond FL line towards
East, there were already existing houses and beyond MH line
towards West, the LR of Jodha alias Dallu had cut the land into
plots before their partition. Now Satbir has admitted that site
plan Ex.PW6/5 was correctly prepared on the date on which it
was prepared and they all the three brothers had put their
signatures after admitting it to be correct. He was admitted
that as per site plan Ex.PW6/5, they had got an area 84 feet
each in length from North to South. Now this fact is also
supported by site plan Ex.PW6/5 which site plan shows that all
the three brothers were allotted 84 feet each from North to
South.
15. Thus, what comes out is that the area that was
divided between the parties was definite and was not capable
of being reduced or increased.
16. As discussed above that area was equally
distributed between appellant and his two brothers. Thus, the
appellant Satbir can not claim an area of more than 84 feet in
width from north to south beyond the area of his brother Baljit
Singh.
17. Thus, actually, respondent-plaintiff Jugbir Singh
was the owner of area upto 84 feet from North to South
beyond the area of appellant Satbir and thus, appellant Satbir
had no right to sell the portion beyond his 84 feet from
north to south in site plan Ex.PW6/5. I am of the
R.S.A.No. 3792 of 2009 (O&M) 9confirmed view that learned lower court has rightly
reached to the conclusion that plaintiff Satbir is absolute
owner of strip of land of the size 13′ x 27′ shown in red
colour marked by letters ABCD in the site plan and has
rightly held sale deed to be illegal which includes area of
that strip. Therefore, there is no need to appoint any fresh
local commission and the judgment Mahabir and another
versus Surta and others (supra) 2006-1 PLR 490 is of no
help to the appellant.”
Both the Courts below, after appreciating the evidence led
by the parties have held that the plaintiff was absolute owner of the
suit land and the sale deed executed by defendant No.3 in favour of
defendants No.1 and 2 was illegal, null and void. In view of the
report of the Local Commissioner, it was found that Satbir-defendant
No.3 could not claim an area of more than 84 feet in width from North
to South beyond the area of his brother Baljit Singh. The said
finding of fact arrived at by both the Courts below cannot be
interfered with by this Court in appeal.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA) JUDGE October 23, 2009 anita