Gurdial Singh And Anr vs Shanti Devi And Ors
2024 Latest Caselaw 4893 P&H

Citation : 2024 Latest Caselaw 4893 P&H
Judgement Date : 5 March, 2024

Punjab-Haryana High Court

Gurdial Singh And Anr vs Shanti Devi And Ors on 5 March, 2024

Author: Alka Sarin

Bench: Alka Sarin

                        RSA No.463 of 1996                    1                    2024:PHHC:031764

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        211                                          RSA No.463 of 1996
                                                                     Date of Decision : 05.03.2024


                        Gurdial Singh and Another                                        ....Appellants

                                                          VERSUS

                        Shanti Devi and Others                                        ....Respondents


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Aman Priye Jain, Advocate for the appellants.

                                    Mr. Sanjiv Gupta, Advocate for respondent No.1.


                        ALKA SARIN, J. (Oral)

1. The present appeal has been preferred by defendant Nos.8 and

9, who claimed themselves to be the bonafide purchasers, aggrieved by the

judgment and decree dated 23.11.1995 passed by the First Appellate Court.

2. The brief facts relevant to the present case are that one Harnam

Dass was the owner of 170 kanals of land. He died leaving behind his

widow, daughters and sons i.e. the plaintiffs and defendant Nos.1 to 7 i.e. a

total of 09 legal heirs. Since Harnam Dass died intestate, each legal heir was

entitled to 1/9th share in the suit property. Braham Dev, Charan Dass, Ram

Saran Dass and Smt. Parsanta Devi i.e. defendant Nos.1, 2, 3 and 7 i.e.

respondent Nos.2, 3, 4 and 8 herein, sold the land to defendant-appellants

and other defendants exceeding their 1/9th share. The wife of Harnam Dass,

namely Kesari Devi and daughter Shanti Devi filed the present suit for

declaration that they were owners to the extent of 1/9th share each in the

property left behind by Harnam Dass and that the sales made by defendant

integrity of this order/judgment

RSA No.463 of 1996 2 2024:PHHC:031764

Nos.1 to 7 in excess of their share was not binding on the rights of the

plaintiffs. The suit was only contested by the defendant-appellants and they

filed their written statement raising preliminary objections that the plaintiffs

had no locus standi to bring the suit. Further, it was stated that the suit was

bad for mis-joinder and non-joinder of necessary parties and cause of action.

It was further the case set up that qua the land comprised in Khasra Nos.17/6

and 17/7, sale deed dated 25.01.1980 was registered in their favour and that

they were bonafide purchasers for consideration.

3. On the basis of the pleadings of the parties the following issues

were framed :

1. Whether the plaintiffs are the owners of the suit land as alleged in the plaint ? OPP

2. Whether the plaintiff has no locus standi to sue ? OPD

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

4. Whether the suit is bad for mis-joinder and non- joinder of necessary parties ? OPD

5. Whether the suit is not properly valued for purposes of court fee and jurisdiction ? OPD

6. Whether the defendants No.8 and 9 are bonafide purchasers of suit land for consideration ? If so, to what effect ? OPD

7. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit ? OPD

8. Whether the suit is barred by limitation ? OPD

9. Relief.

4. The suit was dismissed by the Trial Court vide judgment and

decree dated 09.08.1991. Aggrieved by the same, an appeal was preferred by

the plaintiffs before the First Appellate Court which appeal was allowed vide

integrity of this order/judgment

RSA No.463 of 1996 3 2024:PHHC:031764

judgment and decree dated 23.11.1995 holding the plaintiffs are owners in

joint possession of the suit property to the extent of 1/9th share each.

Aggrieved by the judgment and decree passed by the First Appellate Court,

defendant Nos.8 and 9 (defendant-appellants) have preferred the present

regular second appeal.

5. Learned counsel for the defendant-appellants would contend

that the suit was hopelessly barred by limitation inasmuch as the limitation

for challenging the sale deed was 03 years and since the same was not

challenged within a period of 03 years the suit itself challenging the sale

deed was not maintainable. Learned counsel for the defendant-appellants

would further contend that each of the defendants, who have sold their

property, have not sold beyond 20 kanals and after the death of their mother

each of the children are owners of approximately 21 kanals of land and

hence the sales made by them are all within their shares. Learned counsel for

the defendant-appellants has further relied upon Section 43 of the Transfer

of Property Act, 1882 to contend that even if a sale is made by an

unauthorized person who subsequently acquires interest in the property

transferred, the person in whose favour the transfer is effected would have

the right in the property.

6. Per contra learned counsel for the plaintiff-respondents has

contended that the only declaration which has been given by the First

Appellate Court is to the effect that the plaintiff-respondents are owners to

the extent of 1/9th share. It is further the contention that if the property sold

falls well within the share of the defendant-appellants, the plaintiff-

respondents would have no objection to the same and that they are only

interested in their 1/9th share.




integrity of this order/judgment

                         RSA No.463 of 1996                      4                      2024:PHHC:031764

                        7.           Heard.

8. In the present case the Trial Court had dismissed the suit. The

First Appellate Court while reversing the judgment passed by the Trial Court

has allowed the appeal holding as under :

"14. In view of foregoing discussion, the appeal of the plaintiff-appellants is accepted with costs and their suit is decreed holding them to be owners in joint possession to the extent of 1/9th share each. The plaintiff-appellants shall be entitled to costs of the appeal and suit throughout. Decree sheet be prepared accordingly and file be consigned to the record room."

9. A perusal of the above reproduced paragraph would reveal that

the only declaration which has been given in favour of the plaintiff-

respondents is that they were owners in possession of 1/9th share each.

Needless to say that the sale deeds have not been set aside by the First

Appellate Court while allowing the appeal. If the sales effected by defendant

Nos.1 to 7 are not in excess of their share, a statement has already been

made by the counsel for the plaintiff-respondents that they would have no

objection.

10. In view of the above, no ground is made out to interfere in the

finding recorded by the First Appellate Court. The present appeal being

devoid of any merits is dismissed. Pending applications, if any, also stand

disposed off.