Punjab-Haryana High Court
The Ludhiana Improvement Trust vs Naginder Kaur And Ors on 27 July, 2023
Neutral Citation No:=2023:PHHC:095582
Neutral Citation No.2023:PHHC:095582
RSA No.1332-2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
103 RSA No.1332-2018
Date of Decision: 27.07.2023
THE LUDHIANA IMPROVEMENT TRUST
....Appellant
Versus
NAGINDER KAUR AND ORS
...Respondents
CORAM:HON'BLE MR. JUSTICE SANJAY VASHISTH
Present: Mr. Nikhil Sabharwal, Advocate
for the appellant.
Mr. Anurag Chopra, Advocate
for respondents No. 1 to 4.
*****
SANJAY VASHISTH, J.(Oral)
1 Present regular second appeal has been filed by the
Ludhiana Improvement Trust against the concurrent findings of facts
and law, whereby suit filed by the plaintiff (appellant herein) was
dismissed.
2. Civil Suit was instituted challenging the sale deed
executed on 24.03.1998 by one Prehlad Singh, then Chairman,
Improvement Trust, Ludhiana and registered with the Registrar on
25.03.1988 vide Vasika No.23278, in favour of respondents No.1 and
2 ( herein defendants No. 1 and 2 ) seeking the same to be null and
void and carrying no right in favour of the vendees.
3. Basic ground to challenge the said sale deed is that, then
Chairman, Sh. Prehlad Singh had no authority to execute the sale deed
in his personal capacity on behalf of Improvement Trust, Ludhiana.
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The property is pleaded to be commercial one, which was required to
be sold out in the open market by way of conducting the auction
proceedings.
4. It is further pleaded that defendants No. 3 and 4 (herein
respondents No.3 and 4 ) in whose favour the property was further
sold out and registered through the plaintiff (herein appellant)
subsequently, was also null and void.
5. In the written statement filed by defendants No. 1 and 2,
preliminary objections were raised that the suit is time barred and
plaintiff has no cause of action to file the present suit. Apart the other
technical objections, on merits, it was pleaded that the sale deed dated
24.03.1988 in their favour regarding the sale of 388 sq. yards of land
by the then Chairman Prehlad is legal, valid and according to law and
the said plan for construction over the piece of suit land was
sanctioned rightly .
6. Defendants No.1 and 2 also pleaded that they being the
bonafide purchaser, after making payment of the said plot, further
sold out the same to defendants No.3 and 4, who are also the bonafide
purchasers of the sale property. Thus, even if the plot is sold to the
plaintiff without following the due process and got registered in the
name of defendants No. 1 and 2 in the record of the improvement
trust, there was every reason with the defendants to take a stand of
bonafide purchasers.
7. On the basis of the pleading of the parties, the following
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issues were framed, which are reproduced hereunder:
1.Whether the sale deed dated 24.03.1988 bearing
Wasika No.123278 dated 25.03.1988 in favour of
defendants no.1 and 2 is illegal, null and void
etc. ?OPP
2.Whether the suit has been filed through a
competent person?OPP
3.Whether Chairman of the Ludhiana Improvement
Trust, Ludhiana was competent to execute the sale
on behalf of the Trust?OPP
4. Whether the suit is within time?OPP
5.Whether the defendants no.3 and 4 are bonafide
purchasers with consideration and without notice,
if so its effect?OPD(3&4)
6. Whether the plaintiff is estopped from filing the
present suit for his own act and conduct?OPD
7. Whether the suit is not maintainable in the
present form?OPD
8. Whether the suit has not been properly valued
for the purpose of court fee and jurisdiction?OPD
9.Relief'
8. Under issue No. 1,3 and 4, trial Court framed a main
question for its decision 'whether the sale deed dated 24.03.1988
(Ex.Dx-6) is legal and valid or not?' Legality or validity of the sale
deed dated 24.03.1988, would further determine the legality and
validity of the sale deed dated 30.06.1994 (Ex-DX-7/Ex.DX-1).
9. Learned trial Court has also discussed at length that as
per Section 3 of the Transfer of Property Act, 1882, a registered
document is a notice to all general public including the executors. The
sale deed has been executed by the Trust Chairman and same was
presented by the officials to Sub-registrar.
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10 Even the sale consideration has been deposited on
25.03.1988 in the account of plaintiff-Trust (Ex.DX-2/Ex.P-3),
therefore, it does not lie in mouth of the improvement Trust to say that
the factum of execution of sale deed came to their notice in the year
1988.
Holding that the limitation for challenging the said sale of
the plot was three years as per Article 69 of the Limitation Act, suit is
held to be time barred.
11. It is also considered and held that neither there is
pleading in regard to the particulars of fraud; nor there is any
evidence. Thus, this Court is also of the view that without alleging
and proving the fraud having been played by the predecessor or the
then Chairman, the bonafide purchasers of the property cannot be
made to suffer because of lapse on the part of the improvement trust.
12. There is another fact to notice that defendants No.3 and 4,
who claimed themselves to be the bonafide purchasers cannot be put
to loss or made to suffer because of the lapses in the functioning of the
improvement trust. By the time, the suit was filed, ownership was
already with defendants No.3 and 4, who purchased the plot on
30.06.1994, in whose favour also the Improvement Trust executed the
sale deed and even by that time also, limitation of three years of filing
the suit for the Improvement Trust had expired.
13. Sound reasonings have been given by the First Appellate
Court also in paragraph Nos. 35 and 36 of the judgment dated
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06.02.2017, wherein it has been held that the possession of the suit
property is with defendants. For the sake of convenience, paragraphs
No. 35 and 36 are reproduced here under:
'35.The defendants have further taken the
plea that simple suit for declaration without
seeking possession is not maintainable, when
the plaintiff is not in possession of the suit
property. The plaintiff claims that possession
of the suit property was never delivered to the
defendants under the alleged sale deed.
However, the defendants have examined
official from the Municipal Corporation, who
has proved on record installation of water
and sewerage connections and allotment of
the number to the property in question. Even
mutation was sanctioned in favour of
defendants on the basis of sale deed. Even the
witnesses of plaintiff have stated that they do
not know if possession was delivered to
defendants. All these facts clearly show that
the plaintiff is not in possession of the suit
property and rather the suit property is in
possession of the defendants.
36.Learned counsel for the plaintiff has
referred to AIR 2011 (SC), 2203, where the
plaintiffs sought declaration that they were
owners of the property. They did not sought
possession of the property. It was held that
simple suit for declaration without seeking
possession was not maintainable. He has also
referred to 2007(2) RCR 628 on the same
point. The ratio of these authorities also
could not be rebutted. The defendants have
even examined Tarlochan Singh as DW5,
who has stated that the possession was
handed over to defendants No.3 and 4 in his
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presence. This evidence has also remained
unrebutted. Ld. Lower Court has thus rightly
held that the plaintiff was not in possession of
the suit property and thus simple suit for
declaration without seeking possession is not
maintainable.'
14. Keeping in view of the concurrent findings of the facts
and law, by both the Courts below and noticing that suit of the
plaintiff was not maintainable without asking for possession
alongwith the declaration. There being no strong reason or ground to
disturb the impugned judgment and decree, thus, same is maintained.
15. Appeal carries no substance, hence, dismissed.
[SANJAY VASHISTH]
JUDGE
July 27, 2023
rashmi
Whether speaking/reasoned Yes/no
Whether reportable? Yes/no
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