R.S.A. No. 3672 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.M. No. 10897-C of 2008 and
R.S.A. No. 3672 of 2008
Date of Decision: 4.12.2008
Gurnaib Singh and others
...Appellants.
Versus
Surjit Kaur and others
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
PRESENT: Mr. C.M. Munjal, Advocate with
Mr. Rajesh Bhatheja, Advocate for the appellants.
AJAY KUMAR MITTAL, J.
This regular second appeal filed by some of the legal
representatives (4 in number), namely, Gurnaib Singh, Karnail Singh,
Harnek Singh and Jarnail Singh, of defendant-Darbara Singh is directed
against the judgment and decree dated 17.9.2007 passed by the first
appellate court affirming that of the trial court dated 20.2.2007 vide
which the suit of the plaintiff-Jaswant Singh for declaration, was
decreed.
It may be mentioned here that during the pendency of the
suit, the original plaintiff-Jaswant Singh had died and his legal
representatives were impleaded as plaintiffs in his place.
The facts necessary for the disposal of the present appeal
R.S.A. No. 3672 of 2008 -2-
are that the plaintiffs filed a suit for declaration to the effect that the sale
certificate dated 3.12.1984 issued in respect of the suit land in favour of
the defendant and mutation No. 4361 sanctioned on the basis of the
said sale certificate were illegal, null and void and not binding on the
rights of the plaintiffs, on the averments that they were owner in
possession of the land measuring 12 kanals 6 marlas bearing khewat
Nos. 150, 267, 268, khatauni Nos. 272, 474, 475, khasra Nos. 13M//1/2
(4-11), 13-M//2/2 (3-0), 13M//1/4 (0-8), 2/1 (3-12), 1/3 (0-15) situated
within the revenue estate of village Data, Tehsil Zira, District Ferozepur,
as per jamabandi for the year 1991-92 (hereinafter referred to as the
“suit land”). It was pleaded that the suit land was once pledged by the
plaintiffs with the Zira Primary Cooperative Agricultural Development
Bank Ltd., Zira, (hereinafter referred to as “the bank”) in lieu of a loan of
Rs.4000/- taken by them on 4.6.1971. The said loan amount along with
interest, as agreed upon, was returned to the bank on 28.5.1983. It was
also pleaded that previously the land measuring 8 kanals 6 marlas out
of the suit land was mortgaged with possession with Smt. Raj Kaur
widow of Mehanga Singh and the same was redeemed and the
possession thereof was taken by the plaintiffs from said Smt. Raj
Kumar. Since then the plaintiffs had been in possession of the same. It
was further pleaded that in the year 1984, the plaintiffs left the village
due to threat from the terrorists and went to Rajasthan but the
possession of the suit land remained with them and they used to visit
the village to supervise the same. According to the plaintiffs, in the year
1984-85, the defendants in connivance with the Sale Department, Zira,
and the Revenue Department got the impugned sale certificate dated
R.S.A. No. 3672 of 2008 -3-
3.12.1984 in respect of the suit land issued in their name and also got
the mutation No. 4361 sanctioned on the basis thereof without any right
and, therefore, the same were illegal, null and void and had no effect on
the rights of the plaintiffs. It was also pleaded that except the above
said loan, they never took any other type of loan from the Bank and they
had come to know about the fraud only on 29.5.1995 when they
obtained a copy of the jamabandi from the Halqa Patwari. The plaintiffs
asked the defendants to admit their claim qua the suit land but they
refused to do so which gave rise to the filing of the suit.
To resist the claim of the plaintiffs, the defendants filed a
joint written statement raising various preliminary objections. It was
pleaded that the plaintiffs took a loan and mortgaged the suit land in
favour of the bank and failed to repay the loan amount along with
interest. It was further pleaded that several notices were sent to the
plaintiffs to repay the loan amount along with interest but they did not
accede to the request of the bank. Therefore, the bank had no other
alternative to recover the amount of loan from the plaintiffs except to sell
the suit land under Section 14 of the Punjab Cooperative Land
Mortgage Bank, 1959 and accordingly sold the suit land in an public
auction. According to the defendants, the suit land was purchased by
Darbara Singh, the original defendant, in public auction after depositing
the sale consideration to the bank and the sale of the suit land was duly
confirmed and made absolute in his favour by the concerned authority
on 5th of July, 1984. Mutation No. 4381 regarding the suit land was
sanctioned in favour of said Darbara Singh who remained in possession
of the suit land as owner and after his death, the defendants were in
R.S.A. No. 3672 of 2008 -4-
possession. The other averments made in the plaint were denied and a
prayer for dismissal of the suit was made.
On appreciation of the oral as well as the documentary
evidence led by the parties on the various issues, the trial court held
that the entire proceedings of the sale/auction had been made in
connivance with the officials as due procedure was not followed while
conducting the said sale proceedings. It was further held that the
mutation sanctioned on the basis thereof was illegal, null and void.
Accordingly, the suit filed by the plaintiffs was decreed by the trial court
vide judgment and decree dated 20.2.2007 holding the alleged sale
certificate dated 3.12.1984 and mutation No.4361 to be illegal, null and
void and as having no effect on the rights of the plaintiffs. The
defendants took the matter in appeal and the lower appellate court vide
judgment and decree dated 17.9.2007 affirmed the findings recorded by
the trial court and dismissed the appeal.
I have heard the learned counsel for the appellants and
perused the impugned judgments with his assistance.
Learned counsel for the appellants has made an endeavour
to persuade this Court to re-appreciate the evidence available on record
so as to differ with the findings recorded by the courts below. However,
he could not point out any illegality or perversity in the judgments and
decrees passed by the courts below warranting interference by this
court in the regular second appeal. The courts below had concurrently
held that balance of the loan amount was deposited on 28.5.1983 in the
name of Jaswant Singh vide receipt-voucher (Ex.DW4/B) and receipt
(Ex.DW4/C),, and that the defendants had failed to show that the loan
R.S.A. No. 3672 of 2008 -5-
amount was due from the plaintiffs. The courts below have further
recorded that the due procedure to conduct a sale in public auction was
not followed as there was no original document regarding sale
proceedings in the summoned file and the proceedings undergone in
that regard were not attached except, Marks D1 (photo copy of sale
certificate) and D2 (photo copy of letter written by the bank to the
revenue authority). Therefore, the mutation of transfer of ownership
made in the name of defendants was not legal and valid especially
when no evidence was produced by the defendants to show that any
sale officer was appointed to conduct the sale proceedings.
No question of law, much less a substantial question of law
arises in this appeal.
Finding no merit in this appeal, the same is hereby
dismissed with no order as to costs.
There is a delay of 284 days in refiling the appeal. Since
the appeal has been dismissed on merits, no separate order be being
passed in CM No. 10897-C of 2008 for condonation of 284 days’ delay
in refiling the appeal and the same is disposed of as such.
December 4, 2008 (AJAY KUMAR MITTAL) gbs JUDGE