Sardool Singh and Another vs Shiv Singh and Others

K.C. Puri, J.—This is an appeal directed by defendants-appellants against the judgment dated 1.2.2010 passed by Sh. Bhupinder Singh, District Judge, Amritsar, vide which the appeal preferred by the plaintiff against the judgment dated 4.3.2009 passed by Sh. Jaswinder Singh, Additional Civil Judge (Senior Division), Baba Bakala, was accepted.

Shiv Singh- plaintiff filed a suit for declaration to the effect that he is owner in possession of land measuring 2 kanal 2 1/4 marlas out of total land measuring 14 kanal 17 marlas being 1/6th share out of total khata, situated in village Kaler Ghuman, Tehsil Baba Bakala, District Amritsar, on the basis of registered sale deed dated 30.5.1985. Consequently, the relief of permanent injunction restraining defendants No. 1 and 2 from interfering into the peaceful possession of the plaintiff and from dispossessing him forcibly from the land measuring 2 kanal 2 1/4 marlas comprised in Khasra Nos. 46//1/2 (min west) and 10/1 (min west) and from further selling, alienating, transferring, mortgaging the said property, was sought.

The case of the plaintiff as set forth in the plaint is that Boor Singh s/o Chatar Singh was owner in possession of the land measuring 14 kanal 17 marlas and he died intestate on 9.9.1969, leaving behind Hazara Singh, Piara Singh and Balkar Singh (sons) and Sardool singh son of Dara Singh pre-deceased son of Boor Singh and two daughters Tej Kaur - defendant No. 6 and Taro mother of defendants No. 7 to 12. After death of Boor Singh, the above said persons became the owners of the estate left by Boor Singh in equal to the extent of 1/6th share. Taro daughter of Boor Singh died leaving behind defendants No. 7 to 12 as her legal heirs and they became owners of 1/6th share of Taro in the estate left by Boor Singh. Defendants No. 7 to 12 sold their share out of the suit land to the plaintiff vide registered sale deed dated 30.5.1985 and handed over the possession of 2 kanals 2 1/4 marlas as described above. Defendants have disputed the ownership of the plaintiff. Hence the suit.

Upon notice, defendants No. 1 and 2 appeared through Counsel and filed the written statement taking preliminary objections and denying the averments in the plaint. However, it is admitted that Boor Singh was the original owner and he died on 9.9.1969 leaving behind the legal heirs. In fact Boor Singh left behind the alleged legal heirs alongwith Lakha Singh, who died issueless. Mutation was attested in favour of Hazara Singh, Piara Singh, Balkar Singh, Dara Singh being sons and Sardool Singh son of Dara Singh deceased son of Boor Singh. The daughters of Boor Singh have relinquished their right in favour of their brothers and as such mutation of inheritance of Boor Singh was mutated in the names of son of Boor Singh. Taro and Tej Kaur did not inherit and succeed any share in the estate of Boor Singh and had no right and title in the property. Taro has left behind legal heirs - defendants No. 7 to 12 but they have no right, title or interest in the property.

Remaining defendants did not appear to contest the suit of the plaintiff despite service through publication.

Replication was not filed.

From the pleadings of the parties, following issues were framed:

Whether the plaintiff is entitled to declaration as prayed for? OPP.

Whether the plaintiff is owner in possession of the land measuring 2 1/4 marlas out of the total land measuring 14 kanal 17 marlas? OPP.

Whether the plaintiff is entitled to injunction prayed for ? OPP.

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD

Whether the plaintiff has not come to the court with clean hands? OPD

Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD

Relief.

Learned trial Court has taken up issues No. 1, 2 and 3 together and after appraisal of the evidence, returned the finding on these issues against the plaintiff and in favour of defendant''s No. 1 and 2. Issues No. 4 and 5 to 7 were decided against the defendants and consequently, the suit of the plaintiff was dismissed.

Feeling dissatisfied with the above said judgment dated 4.3.2009 passed by Sh. Jaswinder Singh, Additional Civil Judge (Senior Division), Baba Bakala, the plaintiff preferred the Ist appeal and the same was heard by Sh. Bhupinder Singh, District Judge, Amritsar. The finding on issues No. 1, 2 and 3 were reversed, whereas finding on issues No. 4 to 7 were affirmed. In view of the finding on issues No. 1, 2 and 3, the appeal was accepted vide judgment dated 1.2.2010. The judgment of the trial Court was set aside and the suit of the plaintiff for joint possession of land measuring 2 kanal 2 1/4 marlas of land out of total land measuring 14 kanal 17 marlas as detailed in the head note of the plaint, being 1/6th share of the total khata of the suit land, was decreed. The defendant''s No. 1 and 2 were restrained from dispossessing or mortgaging the suit property.

Feeling dissatisfied with the judgment dated 1.2.2010, referred to above, the present regular second appeal has been filed.

The appellants in paragraph No. 11 of the grounds of appeal have mentioned that following substantial questions of law are involved in the present appeal:

i) Whether under the facts and circumstances of the case, the findings of the appellate Court are based on misreading of evidence and ignoring material evidence?

ii) Whether the judgment of the appellate court suffer from perversity being contrary to evidence on record and well settled principles of law and, therefore, liable to be reversed?

iii) Whether the seller has any right/title to alienate the land in dispute when he himself does not have any title in the property in dispute?

iv) Whether the vendor must have valid title for a valid transfer of title to vendee?

v) Whether the judgment and decree of the appellate Court is liable to be set aside as no findings given on issues No. 8 and 9 framed vide order dated 8.1.2009 on application under Order 14 Rule 5 CPC?

Learned Counsel for the appellants has submitted that plaintiff could succeed only if his seller has any title in the suit property. The plaintiff alleged that he has purchased the property through sale deed dated 30.5.1985 from the legal heirs of Taro. Taro herself was not recorded as owner of any property. The sale deed dated 30.5.1985 in favour of the plaintiff does not confer any legal right upon him. Taro and Tej Kaur relinquished their right in favour of the appellants.

I have carefully considered the submissions made by learned Counsel for the appellants and have also gone through the file of the case.

Taro and Tej Kaur, admittedly were the daughters of Boor Singh. Boor Singh has 4 sons and 2 daughters. The case of the plaintiff is that Boor Singh died intestate and that fact has not been disputed in the written statement. So, the rule of succession would prevail. The sons and daughters will inherit the property of Boor Singh in equal shares. So, Taro inherited the share of Boor Singh to the extent of 1/6th share. The said share of Taro was inherited by defendants No. 7 to 12, which was in turn purchased by plaintiff through sale deed dated 30.5.1985. So, the finding of fact recorded by the Ist Appellate Court, does not call for any interference. Although in the substantial questions of law, appellants have mentioned that Appellate Court judgment is liable to be set aside on the ground that issues No. 8 and 9 framed on 18.1.2009, have not been decided. But no argument in this regard has been addressed during the course of arguments in the regular second appeal.

So far as, the point of limitation is concerned, there is no limitation for claiming the title amongst the co-sharers. Plaintiff by purchasing the share of Taro became co-sharer in whole of the joint land measuring 14 kanal 17 marlas. It was not argued how the suit is not maintainable against the dead person. Mutation is only meant for the purpose of updating the record and does not confer any right. The rights of the parties flow from the inheritance. So, it cannot be said that vendors of plaintiff were not the owners of the suit property.

So, I have no hesitation in holding that in fact only question of fact whether the sale deed in favour of plaintiff is legal and binding, has arisen and no question of law, much less the substantial question of law has arisen in the present appeal.

Consequently, the appeal is without any merit and the same stands dismissed.