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2004 DIGILAW 715 (PNJ)

Gulzar Singh v. Sulakhan Singh

2004-07-17

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. This order shall dispose of RSA Nos. 4281, 4282 and 2845 of 2003 as all these appeals arise out of common judgment rendered by first Appellate Court. 2. RSA No. 4281 arises out of the suit filed by the plaintiff-appellant for declaration to the effect that Sulakhan Singh has no right, title or interest in the suit land and defendants No. 2 and 3 i.e. Daljit Singh and Surinder Singh are tenants in the suit land. It was alleged that Sulakhan Singh had obtained a decree dated 23.8.1993 for possession which is wrong and illegal and is liable to be ignored as the same has been passed at the back of the appellant. 3. R.S.A. No. 4282 of 2003 arises out of a suit filed by Sulakhan Singh for declaration that the sale certificate dated 4.2.1998 issued by the Senior Sub Judge, Rajpura, in the execution proceedings titled State Bank of Patiala v. Mohinder Singh is illegal, null and void as the said plaintiff has purchased the land measuring 16 biswas from Mohinder Singh per registered sale deed dated 27.6.1959 along with his brother. It was alleged that the said property purchased by the plaintiffs Sulakhan Singh could not have been put to sale in execution of the decree as Mohinder Singh has no interest in the land which he could mortgage in favour of the State Bank of Patiala after its sale to Sulakhan Singh in the year 1959. Both the courts have dismissed the suit for declaration filed by the appellant-Gulzar Singh but decreed the suit filed by Sulakhan Singh. Still aggrieved the appellant has challenged the judgment and decree in the present appeal as aforesaid. 4. One Mohinder Singh of village Chalheri was owner of land measuring 16 biswas which was sold vide registered sale deed to Sulakhan Singh and his brother Rattan Singh on 27.5.1959. After the death of Rattan Singh in September, 1960, his mother succeeded the estate of Rattan Singh, Sulakhan Singh got the estate of his mother after her death on 15.11.1985 and thus Sulakhan Singh is now exclusive owner of the land so purchased. It has come on record that the land in dispute was mortgaged with Shingra Singh son of Kala Singh, the father of Daljit Singh and Surinder Singh for Rs. 10.000/-. It has come on record that the land in dispute was mortgaged with Shingra Singh son of Kala Singh, the father of Daljit Singh and Surinder Singh for Rs. 10.000/-. Sulakhan Singh filed an application for redemption of land and the Collector, Rajpura vide order dated 24.9.1984 ordered the redemption of the land. Daljit Singh and Surinder Singh had filed a suit for injunction claiming that they are tenants over the suit property and they be not dispossessed. Said suit was dismissed by the trial Court on 28.8.1981. The appeal as well as suit was dismissed as withdrawn on 15.9.1987 by the learned District Judge, Patiala. Sulakhan Singh challenged the said order before this Court and the first Appellate Court was directed to decide the appeal on merits. Vide judgment and decree dated 8.10.1988 passed by Additional District Judge, Patiala and it was held that Daljit Singh and Surinder Singh are not tenants over the suit property but it was held that they shall not be dispossessed except in due course of law. Thereafter, Sulakhan Singh filed a suit for possession against Daljit Singh and Surinder Singh which was decreed by the trial Court and Surinder Singh which was decreed by the trial Court on 23.8.1993. The judgment and decree passed by the learned trial Court in the said suit for possession was affirmed in appeal on 16.12.1996 vide judgment Ex. P.2. 5. After the suit for possession by Sulakhan Singh was decreed by the trial Court, Gulzar Singh, appellant filed a suit for declaration challenging the judgment and decree dated 23.8.1993 in a suit for possession. Ad-interim injunction application filed by Gulzar Singh was allowed by this Court in CR No. 2043 of 1999 decided on 13.8.1999 vide order Ex.D.6. 6. Sulakhan Singh filed a suit for declaration on the allegations that he came to know that a sale certificate has been issued in favour of Gulzar Singh on 5.5.1999 and such sale certificate is not binding on his rights. Said suit for declaration filed by Sulakhan Singh and suit filed by Gulzar Singh challenging the decree for possession obtained by Sulakhan Singh was consolidated vide order dated 1.12.2000. Both the suits and the appeals arising out of said judgment and decree have been decided by a common judgment. 7. Before this Court learned counsel for the appellant has argued that the suit is barred by limitation. Both the suits and the appeals arising out of said judgment and decree have been decided by a common judgment. 7. Before this Court learned counsel for the appellant has argued that the suit is barred by limitation. It has argued that the sale certificate was issued in favour of the appellant on 4,2.1998 wherein the suit has been filed by Sutakhan Singh on 27.2.1998 and thus it is barred by 23 days. Said argument raised by the learned counsel for the appellant cannot be accepted for more than one reason. The suit filed by Gulzar Singh is to the effect that the sale certificate does not affect the title of Sulakhan Singh derived on the basis of registered sale deed dated 27.5.1959. Filing of suit was necessitated on account of cloud raised over the title of Sulakhan Singh on account of sale certificate. Therefore, the suit is for declaration of title for which the cause of action arose on the date of threat of such title and not from the date of issuance of sale certificate. The appellant was not party to the proceedings pertaining to issuance of sale certificate and therefore, such sale certificate issued at the back of Sulakhan Singh cannot bind and affect his rights in the property. 8. Consequently, I do not find that the argument that the suit is barred by limitation is sustainable. 9. Learned counsel for the appellant further argued that the original sale deed in respect of the purchase of the land has not produced on record and therefore, the very basis of the suit is not available. It has been found by the courts below that Ex.P1 is the certified copy of the sale deed. Said certified copy of the sale deed has been proved by P.W.1 Gurpreet Singh, Registration Clerk, Rajpura who has brought the summoned record containing record of the sale deed dated 27.5.1959. Sulakhan Singh himself appeared as PW2 and stated that the original sale deed is at his residence, however, he deposed that the said sale deed was witnessed by Gurbachan Singh and Sadhu Singh. Gurbachan Singh attesting witness has been produced as PW3 who has proved the execution of the said will as well. On the basis of such evidence, it has been found that the sale deed is duty proved to have been executed in favour of Sulakhan Singh. 10. Gurbachan Singh attesting witness has been produced as PW3 who has proved the execution of the said will as well. On the basis of such evidence, it has been found that the sale deed is duty proved to have been executed in favour of Sulakhan Singh. 10. The argument that the courts below have erred in law in admitting the certified copy of the sale deed on the ground that it is per se admissible. One cannot ignore the fact that such sale deed is not being proved by merely producing the certified copy of the sale deed but by examining one of the attesting witness and by producing the record from the office of the Sub Registrar. The appellant could very well seek the production of the original sale deed which Sulakhan Singh has stated that is lying at his residence. Having failed to do so it is not open to the appellant that Sulakhan Singh has failed to prove the execution of the sale deed. 11. Learned counsel for the appellant then argued that the suit for declaration simplicitor is not maintainable as Sulakhan Singh was not in possession and therefore without seeking possession, the suit for declaration was not maintainable. However, the said argument of the learned counsel for the appellant is misconceived. As a matter of fact, Sulakhan Singh has filed a suit for possession against Surinder Singh and Daljit Singh whose father was inducted as a mortgagee. Inspite of redemption of mortgage, they have failed to hand over the possession but asserted tenancy rights. The plea of tenancy rights was rejected. Subsequently, Sulakhan Singh has filed suit for possession which was decreed on 23.8.1993 and such decree was affirmed in appeal on 16.12.1996. 12. On the other hand, it was the stand of the appellant in the written statement that Surinder Singh and Daljit Singh are his tenants. However, the said plea of tenancy remains unsubstantiated. Once decree for possession has been passed in favour of Sulakhan Singh against the occupiers who are not proved to be tenants of Gutzar Singh, therefore, no error can be found in the frame of suit of declaration. The only cloud on the title of Sulakhan Singh is sale certificate which is sought to be removed by virtue of the suit for declaration filed by Sulakhan Singh. The only cloud on the title of Sulakhan Singh is sale certificate which is sought to be removed by virtue of the suit for declaration filed by Sulakhan Singh. Thus, 1 do not find any merit in such argument raised by the learned counsel for the appellant. 13. Learned counsel for the appellant also argued that the courts below have passed an order of refund of the amount deposited by Gulzar Singh along with interest. However, no rate of interest has been specified and thus the decree requires to be modified to that extent. 14. Gulzar Singh, is at liberty to move an appropriate application before the trial Court to specify the rate of interest. 15. No other point was urged. 16. Mr. P.D. Mehta, learned counsel for the appellant in R.S.A. No. 2845 of 2003 has argued that the bank has acted bona fide on the basis of revenue record while accepting the land offered by Mohinder Singh as mortgage. It was contended that the action of the bank is based upon the revenue record therefore, the mortgage was just and proper and such mortgage is protected under Section 41 of the Transfer of Property Act. However, the said argument cannot be accepted. Sale in favour of Sulakhan Singh is by way of registered document. Registration of a document is notice to all. Had the appellant Bank vigilant and made proper inquiries, the bank would have known that Mohinder Singh has no interest which can be mortgaged in favour of the bank. Therefore, it is not open to the bank to contend that the mortgage by Mohinder Singh is protected. 17. Thus, in view of the findings recorded by the courts below and as discussed above, no substantial question of law arises for consideration. Dismissed.