Daya Singh vs Mohan Singh and Others

L.N. Mittal, J.—As prayed for by learned Counsel for the appellant, service of respondent Nos. 1, 4 (represented by legal representatives) and 5 is dispensed with as they were ex parte in both the courts below.

Daya Singh plaintiff having remained unsuccessful in both the courts below has filed the instant second appeal.

Plaintiff and defendant No. 4 Gainda Singh were joint owners in possession of the suit land measuring 4 kanals 14 marlas in which plaintiff''s share was 40/94 i.e. two kanals. They were also joint owners in possession of other land. Defendants Nos. 1 and 5 are sons of defendant No. 4. On 17.2.1998 an agreement was entered into between plaintiff and defendants Nos. 1, 4 and 5 for partition of the joint land of plaintiff and defendant No. 4. According to said agreement, plaintiff gave his share of 2 kanals land in total land measuring 4 kanals 14 marlas by executing registered sale deed dated 17.2.1998 in favour of defendant No. 1 without consideration as other joint land between plaintiff and defendant No. 4 was partitioned vide agreement dated 17.2.1998. However, defendant No. 4 did not comply with the said agreement. Consequently, the plaintiff pleaded that sale deed dated 17.2.1998 executed by him in favour of defendant No. 1 regarding 2 kanals land in suit is illegal and inoperative and liable to be set aside. The same was without consideration. Further sale deed dated 16.10.1998 of the said land by defendant No. 1 in favour of defendants Nos. 2 and 3 was also challenged by the plaintiff in the suit being null and void. The plaintiff also alleged by amendment of plaint that during pendency of the suit, the defendants forcibly took possession of the suit land measuring 2 kanals from the plaintiff in January, 2004. The plaintiff, therefore, also prayed for joint possession of the suit land.

Only defendants Nos. 2 and 3 contested the suit. They denied plaint allegations. Agreement dated 17.2.1998 between plaintiff and defendant Nos. 1, 4 and 5 was denied. Sale deed dated 17.2.1998 was pleaded to be for consideration. Defendant Nos. 2 and 3 claimed themselves to be bonafide purchasers of the suit land for valuable consideration vide sale deed dated 16.10.1998. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Phagwara vide judgment and decree dated 19.9.2006 dismissed plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Kapurthala vide judgment and decree dated 24.7.2007. Feeling aggrieved, the plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

It is undisputed that plaintiff executed sale deed dated 17.2.1998 of 2 kanals in suit in favour of defendant No. 1 who subsequently sold the same to defendants Nos. 2 and 3 vide sale deed dated 16.10.1998. Accordingly, defendants Nos. 2 and 3 are bonafide purchasers of the suit land for valuable consideration. The plaintiff has, therefore, been rightly nonsuited by the courts below.

Learned Counsel for the appellant vehemently contended that agreement dated 17.2.1998 Ex. P1 depicts that sale deed dated 17.2.1998 of the suit land by plaintiff in favour of defendant No. 1 was without consideration. However, this contention does not help the plaintiff-appellant because defendants Nos. 2 and 3 are bonafide purchasers of the suit land for consideration. Admittedly, plaintiff had executed sale deed dated 17.2.1998 of the suit land in favour of defendant No. 1 for alleged consideration of Rs. 50,000/ -. In view thereof, defendants Nos. 2 and 3 purchased the suit land from defendant No. 1 vide sale deed dated 16.10.1998 for valuable consideration. If the plaintiff had any right on the basis of agreement dated 17.2.1998, Ex. P1, plaintiff could seek enforcement thereof but the plaintiff did not seek any such relief in the suit. The plaintiff sought declaration regarding his ownership over the suit land measuring 2 kanals but defendant Nos. 2 and 3 had already purchased the said land for consideration from defendant No. 1 in whose favour the plaintiff had himself executed sale deed dated 17.2.1998. Consequently, the plaintiff has been rightly non-suited by the courts below as defendants Nos. 2 and 3 are owners in possession of the suit land and therefore, the plaintiff cannot claim any right, title or interest therein. The plaintiff at best could seek enforcement of agreement dated 17.2.1998 but the plaintiff did not seek any such relief in the suit. The plaintiff could not be granted any relief regarding suit land measuring 2 kanals of which defendants Nos. 2 and 3 have become owners in possession being bonafide purchasers thereof for valuable consideration.

For the reasons aforesaid, I find no merit in the second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed.