[Cites 3, Cited by 0]
Punjab-Haryana High Court
Satish Kumar vs Mohinder Singh And Another on 8 January, 2026
RSA-1423-2023(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
237 RSA-1423-2023 (O&M)
Date of decision: 08.01.2026
Satish Kumar ...Appellant(s)
Vs.
Mohinder Singh and another ...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Rajinder Sharma, Advocate for the appellant.
***
NIDHI GUPTA, J.
The plaintiff is in second appeal against the concurrent
judgments and decrees of the ld. Courts below, whereby the suit for
possession filed by the appellant, has been dismissed by both Courts
below.
2. It was the pleaded case of the appellant in the plaint that
plaintiff was owner of adjoining properties measuring 1.5 M bearing
Khasra No. 373 min.; and property measuring 7M 6 Sarsai of Khasra No.
373 in village Gunowal Tehsil and District Amritsar. The said properties
were purchased by the appellant vide Sale Deeds dated 28.08.1995 and
18.12.1995 respectively. Plaintiff had constructed shop in the property
measuring 1.5M. Plaintiff had obtained loan from defendant No.2 after
mortgaging the aforesaid shop and had been paying regular instalments.
Subsequently, plaintiff had defaulted on the instalments and Bank had
declared his account NPA under the SARFAESI Act. Thereafter, sale was
conducted in favour of defendant No.1 for an amount of Rs.1,26,750/-;
RSA-1423-2023(O&M) -2-
which amount was deposited in the account of the plaintiff. It was further
averred in the plaint that to restore the property to him, the plaintiff had
filed Civil Suit No. 420 dated 16.01.2012 for permanent and mandatory
injunction after repayment of loan. The said suit was dismissed vide order
dated 05.01.2013. It was further alleged in the plaint that while taking
possession of the auctioned/mortgaged shop, possession of the vacant
plot was also forcibly taken by the officials of defendant No.2. It was
accordingly pleaded that possession of the remaining vacant property,
which was never mortgaged in auction, had been illegally taken from the
plaintiff and the same was liable to be restored back to the plaintiff.
Despite repeated requests, defendants had failed to do so. Accordingly,
plaintiff had instituted the present suit on 17.09.2015.
3. Upon appraisal of the pleadings and the evidence led by the
parties, the learned Civil Judge (Junior Division), Amritsar had dismissed
the suit of the plaintiff with cost vide judgment and decree dated
06.09.2018. The Civil Appeal filed by the appellant was dismissed with
costs by the learned Additional District Judge, Amritsar vide judgment and
decree dated 22.09.2022. Hence, present second appeal by the plaintiff.
4. It is inter alia submitted by learned counsel for the appellant
that the learned Courts below have dismissed the suit of the plaintiff
merely on a technical ground that the suit for possession without seeking
declaration is not maintainable. Learned counsel contends that in terms of
Order 23 Rule 1(3) CPC, when suit is dismissed only on a technical ground,
the appellant be permitted to withdraw the present civil suit and file a
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fresh suit. It is further submitted that the Courts below fell in error of Law
in dismissing the suit and appeal of the appellant. The finding recorded by
the First Appellate Court shows that the sale certificate issued by the Bank
with regard to vacant plot is void, as the same is without any sale
consideration, without any right, title or interest in the property, as the
same was never mortgaged with the bank. As per settled Law, a document
which is void, need not to be challenged by claiming declaration as the
said plea can be set up even in collateral proceedings. In this regard
appellant finds support from Judgement titled as Kewal Krishan Vs.
Rajesh Kumar and ors, Civil Appeal No. 6989-6992 of 2021 S.C.
5. It is accordingly prayed that the present appeal be allowed;
and the impugned judgments and decrees of the Courts below be set
aside.
6. No other argument is raised on behalf of learned counsel for
the appellant. I have heard learned counsel and perused the case file in
detail. I find no merit in the submissions made on behalf of the appellant.
7. Perusal of the record of the case shows that it is the
admitted case of the appellant that the plaintiff had availed loan from the
Punjab & Sind Bank, Jandiala Guru Branch, District Amritsar. It is also
admitted fact that plaintiff failed to pay back loan amount; and therefore,
his account had been declared NPA; where after the property was sold to
defendant No.1.
8. It is also admitted fact on record that previously also, plaintiff
had filed Civil Suit No. 420 dated 16.01.2012, seeking mandatory
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injunction directing the Bank to restore possession of the suit property
after receiving the entire outstanding loan amount. The said suit had been
dismissed vide order dated 05.01.2013. Admittedly, no appeal was filed by
the appellant against the dismissal of the said suit. Meaning thereby, that
the judgment dated 05.01.2013 had attained finality. As such, present suit
of the appellant was not maintainable being barred under Order 2 Rule 2
CPC as cause of action in the present suit is the same as that of previous
Civil Suit No. 420, which was already dismissed vide order dated
05.01.2013.
9. Furthermore, it has been alleged by the plaintiff that he had
mortgaged one property; whereas defendant No.2 had sold both the
properties. However, in his cross-examination, plaintiff has specifically
admitted that the Sale Certificate dated 11.12.2007 Ex.DX was issued with
regard to both the properties in favour of defendant No.1. It was further
admitted by the plaintiff in his cross-examination that he had not
challenged Sale Certificate dated 11.12.2007 in the instant suit, despite
the same being in his knowledge. Admittedly, plaintiff has failed to
challenge the Sale Deed in the present Civil Suit. As such, plaintiff cannot
claim possession simplicitor without seeking declaration as he is no more
owner of the properties.
10. Lastly, the argument of the appellant in terms of Order 23
Rule 1(3) CPC has not been raised in the present Grounds of Appeal.
11. Learned counsel for the appellant is unable to controvert or
dispute the above said facts and findings.
RSA-1423-2023(O&M) -5-
12. In view of the discussion above, no ground is made out to
interfere in the impugned judgments and decrees of the learned Courts
below. The present Regular Second Appeal is hereby dismissed.
13. Pending applications, if any, stand disposed of.
08.01.2026 (NIDHI GUPTA)
Divyanshi JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
