Kulwant Singh vs Hardial Singh

G.R. Majithia, J.—Defendant appellant has come up in regular second appeal against the judgment and decree of the First Appellate Court affirming on appeal those of the trial Judge holding that the plaintiff-respondent was owner of the disputed land and restraining the defendant-appellant from interfering in his peaceful possession over the same.

The plaintiff purchased suit land along with all rights in Shamlat Deh from defendant No. 1 (respondent No. 2 in appeal) vide sale deed dated July 7, 1958; that after the enforcement of Act No. 1 of 1954, Shamlat Deh was mutated in the name of the Gram Panchayat; that the proprietors of the Shamlat Deh filed suit No. 724/663 against the Gram Sabha; that the suit was decreed and it was held that the plaintiff in that suit including Nand Lal were proprietors to the extent of 12649/28844 share inland measuring 15612 Kanals 11 Marlas; that mutation was sanctioned on April 21, 1970 after the decree; that defendant No. 1 sold 33 Kanals 10 Marlas representing 1591/312251 share of the land measuring 15612 Kanals 12 Marlas to defendant No. 2 (appellant) vide sale, deed dated October 12, 1970; that the plaintiff moved the civil Court for declaration that the sale deed dated October 12, 1970 executed by defendant No. 1 in favour of defendant No. 2 will not effect his rights.

The suit was contested by defendant No. 2 alone. He inter alia pleaded that he was a bona fide purchaser for valuable consideration from the true owner and that the plaintiff has no locus standi to file the suit.

The trial Judge framed the following issues from the pleadings of the parties :-

(1) Whether the plaintiff is the owner of the land in suit as alleged ? OPP

(2) Whether defendant No. 2 purchased the property in suit for valuable consideration as a bona fide purchaser ? If so its effect? OPD

(3) Whether suit is not maintainable in the present form ? OPD

(4) Whether the plaintiff is estopped from filing the suit ? OPD

(5) Whether the defendant No. 1 had a right to sell the above land to the plaintiff in 1958 ? OPD

(6) Relief.

Issues No. 1 and 5 were disposed of together and it was held that the subsequent sale was invalid since on that date, the vendor had ''no subsisting transferable right; under issue No. 2, it was held that defendant. No. 2 was not a bona fide purchaser for valuable consideration; issue No. 3 was answered against the defendant and it was held that the suit is maintainable; issue No. 4 was decided against the defendant. On the ultimate analysis, the suit of the plaintiff-respondent was decreed.

Defendant No. 2 (appellant) challenged the judgment and decree of the trial Judge in first appeal. The first appellate Court held that the sale in favour of the plaintiff was prior in time and on the date when second sale was made by the vendor he had no subsisting interest in the disputed property and the sale was invalid. The sale in favour of the plaintiff included Shamlat Deh right. If after the sale in favour of the first vendee the Shamlat Deh land had been mutated in favour of the Gram Panchayat and thereafter under civil Court decree, it was retrived to the proprietor, the decree did not create any right in favour of the proprietor since before that decree, he has transferred his interest in the Shamlat Deh land to the plaintiff. The finding recorded by the first appellate Court is essentially a finding of fact and calls for no interference and the appeal is devoid of merit.

For the reasons stated above, the appeal fails and the same is dismissed but there is no order as to costs.