Piaro Bai vs Kartar Singh

R.L. Anand, J.—There is a Regular Second Appeal and it has been directed against the judgment and decree dated 18.7.1996 passed by the Additional District Judge, Sirsa who modified the judgment and decree of the trial Court dated 1.5.1991.

The brief facts of the case can be described in the following manner:

Gulab Singh purchased piece of land from Shakuntala Devi on 30.12.1976. Shri Nand Lal filed a suit for pre-emption. It was decreed by the Trial Court. Appeal filed by Gulab Singh was dismissed. However, the second appeal was allowed by the High Court on 29.4.1986 and the suit of Shri Nand Lal was dismissed. In the meanwhile, Nand Lal suffered a collusive decree in favour of Kartar Singh in order to defeat the rights of Gulab Singh vendee.

Gulab Singh filed a suit for declaration and in the alternative for possession on the plea that since he has became owner of the land in question, therefore, he is entitled to protect his possession and if it is held that he is not in possession of the suit land, then is entitled to its possession. Issue No. 2 was framed by the Trial Court as follows:

If issue No. 1 is proved, whether the Plaintiff is entitled to the relief of permanent injunction as prayed for or alternatively he is entitled to the relief of possession as alleged? OPP

The parties led evidence before the Trial Court and issue No. 2 was decided in favour of Gulab Singh. The learned Trial Court gave the following findings:

The Plaintiff has been able to prove that the impugned judgment and decree are null and void and not binding on his rights, therefore, the Plaintiff is entitled to the possession of the suit land from Defendant No. 2 because the Plaintiff has not been proved to be in possession of the suit land. He is also entitled to the relief of permanent injunction restraining the Defendant No. 2 from further alienating or encumbering the suit land in any manner.

In these circumstances, the First Appellate Court was not justified in indicating while modifying finding of the Trial Court on issue No. 2 that Plaintiff Gulab Singh should file separate suit for possession claiming the possession of the property which was purchased by him. Shri Kartar Singh has stepped into the shoes of Nand Lal. Preemption decree in favour of Nand Lal has already been set aside by the High Court vide judgment dated 29.4.1986. It is not the case of Kartar Singh that he was bona fide purchaser for consideration. In these circumstance, the impugned judgment and decree of the first Appellate Court is hereby set aside and judgment and decree of the trial Court stands restored and it is declared that legal heirs of Gulab Singh will be entitled to get possession of the land which was purchased by Gulab Singh. Appeal allowed. No order as to costs.