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2005 DIGILAW 550 (PNJ)

Bhano v. Jarnail Kaur

2005-05-02

JASBIR SINGH

body2005
Judgment Jasbir Singh, J. 1. Appellant (plaintiff) claiming 7/20th share, filed a suit for joint possession in land measuring 177 kanals 8 marlas, description of which was given in heading of the plaint. She also prayed that decree for possession of house by way of partition of 3/5th share be also passed in her favour. It was further prayed that decree of permanent injunction be issued in her favour, restraining the respondents (defendants) from alienating, the land, in dispute, to the extent of her share. 2. In plaint, she has stated that she is widow of Baggu s/o Jagram, who was the owner in possession of 1/2 share in the land measuring 105 bighas 9 biswas. He died on 15.6.1959.Mutation of inheritance of his estate was sanctioned in favour of the appellant, Tej Kaur daughter, Karnail Singh, Labh Singh, Jarnail Singh his sons, in equal shares vide mutation No. 2731 dated 20.4.1960. Thus, the appellant had become owner to the extent of 1/10th share in the suit land. During consolidation in village Bhutal Khurd in the year 1960-61 land measuring 177 kanals 8 marlas was allotted in lieu of 105 bighas 9 biswas, earlier owned by Shri Baggu. About twenty years back, Jarnail Singh son of Baggu had died issueless and unmarried, his land was to be inherited by the appellant being his mother. In this manner the appellant had become owner to the extent of l/5th share. However, respondents Tej Kaur, Labh Singh (since deceased) and Karnail Singh respondents, in connivance with the revenue officials got sanctioned mutation No. 3275 dated 28/7.1972 in their names, which fact came to knowledge of the appellant before filing of suit. The respondent Tej Kaur, on 12.6.1964 sold l/8th share vide sale deed No. 1170 in favour of Karnail Singh and Labh Singh (since deceased) exceeding her 1/10th share and mutation No. 3341 dated 29.5.1973 was sanctioned on the basis of said sale deed, as such, mutation No. 3275 dated 28.7.1972 and mutation No. 3341 dated29.5.1973 are illegal, null and void. Further Labh Singh also died in the year 1968 issueless and unmarried. The appellant being mother of said Labh Singh was entitled to inherit the property of Labh Singh. Further Labh Singh also died in the year 1968 issueless and unmarried. The appellant being mother of said Labh Singh was entitled to inherit the property of Labh Singh. Thus the appellant had become the owner to the extent of 7/20 share in the total land measuring 177 kanals 8 marlas, but respondent Karnail Singh, Tej Kaur again with the connivance of revenue officials got sanctioned the mutation No. 3342 dated 29.5.1973 in their names also. The said mutation is also illegal, null and void. Respondent Tej Kaur had further sold 1/16th share after the death of Labh Sigh vide registered sale deed No. 329 dated 26.6.1972 to respondent Karnail Singh, when in fact, she was not entitled to inherit any property of Labh Singh, thus, the sale deed No. 329 dated 26.6.1972 and mutation No. 3382 dated 11.6.1974 sanctioned on the basis of said sale deed was also illegal, null and void, The respondent No. 1 had only 3/20 share in the suit land i.e. 26 kanals 12 marlas, who alienated 19 kanals 6 marlas out of his share to Amarjit Singh son of Raunaq Singh (respondent No. 3) as per his share. Subsequent thereto, respondent No. 1 mortgaged 32 kanals of land vide mortgage deed No. 373 dated 25.6.1984 in favour of respondent No. 4, when in fact he had no right to mortgage the land being more than his share. Thus, the mortgage deed is also illegal, null and void, without any authority and so is the position of mutation No. 3993 dated 27.3.1985. The respondent No. l on the basis of wrong facts sold 19 kanals of land on dated 15.4.1985 vide sale deed No. 44 in favour of respondents No. 5 to 8 and the mutation No. 4005 dated 17.7.1985 was sanctioned on the basis of said sale deed. The respondent No. l further sold 4 kanals 4 marlas of land on 30.1.1986 vide sale deed No. 1340 in favour of respondent No. 7 and 8 and also sold 4 kanals 5 marlas of land on 30.1.1986 vide sale deed No. 1340 in favour of respondent No. 7 and 8 and further sold 4 kanals 5 marlas of land on 30.1.1986 vide sale deed No. 3141 in favour of respondent No. 5 and 6 and mutation No. 4096 dated 30.6.1986 was sanctioned in favour them. The respondent No. l again on the basis of wrong entries in the revenue record sold four kanals of land on 29.12.1986 vide sale deed No. 1316 in favour of respondent No. 9 and further sold 4 kanals land in favour of respondent No. 10 vide sale deed No. 1317 dated 29.12.1986. The aforesaid sale deeds in favour of respondents N6.5 to 10 and the mutation sanctioned in their favour were illegal, null and void. The house in dispute was also the ownership of Baggu, which had fallen down in the rainy season. It has been again constructed by the appellant and the appellant was entitled to get 3/5th share in partition of said house, besides 7/20 share in the total land measuring 177 kanals 8 marlas. However, she impleaded respondent No. 11 to 17 as preformed and no relief was claimed against them. 3. After contest, her suit was partly decreed. Trial Court, while giving relief to her, has observed as under: In view of my above findings issue-wise, I pass a decree of joint possession in favour of the plaintiff and against the defendants that the plaintiff has only 11/60 share. Remaining share of Tej Kaur in the suit property is to the extent of 1/48 share and that of Karnail Singh comes to 71/240 because mutations of inheritance of Jarnail Singh and Labh Singh have not been challenged by the plaintiff within time and these shares of the parties have been determined after taking into consideration mutations of inheritance of Jarnail Singh and Labh Singh as sanctioned by the revenue authorities. Except for one sale deed No. 1317 dated 29.12.1986, all the other sale deeds executed by defendant No. l are within his share and are declared to be legal one. However, the sale deed No. 1317 dated 29.12.1986 is excess to the extent of 2 kanals 1 marlas executed by defendant No. l in favour of defendant Balbir Kaur. However, this sale deed is declared to be legal because vendee is protected Under Section 41 of the Transfer of Property Act. So far as sale deed No. l 170 dated 12.6.1964 by Tej Kaur in favour of defendant No. 1 and Labh Singh deceased is concerned, that has been declared illegal, null and void to the extent of excess share of defendant Tej Kaur i.e. Share more than 1/10. So far as sale deed No. l 170 dated 12.6.1964 by Tej Kaur in favour of defendant No. 1 and Labh Singh deceased is concerned, that has been declared illegal, null and void to the extent of excess share of defendant Tej Kaur i.e. Share more than 1/10. As defendant Tej Kaur has already received the consideration to the extent of 1/8 share through sale deed No. 1170 dated 12.6.1964, therefore, the excess area of 2 kanals 1 marla which has been sold by defendant No. 1 through sale deed No. 1317 dated 29.12.1986 be satisfied from the share of defendant No. 2 Tej Kaur. So far as mortgage deed No. 373 dated 25.6.1984 is concerned, defendant No. l was not competent to mortgage this property because he has already sold more than his share in the suit land. Therefore, plaintiff to the extent of her share will be entitled to redeem this property from the mortgagee Raunaq Singh and to claim the amount of mortgage from defendant No. l Karnail Singh. So far as relief of injunction is concerned, parties will be at liberty to sell the property to the extent of their share in the sun land. 4. Feeling aggrieved, she went to appeal, which was dismissed vide judgment and decree dated 3.1.2000. Hence, this Regular Second Appeal. 5. It is apparent from the records that appellant is the mother of respondent Nos. 1 and 2. Further, it is an admitted fact that Baggu, the original owner had died in the year 1959. Mutation regarding inheritance of his estate was entered in favour of the appellant, respondent Nos. 1 and 2 and also Labh Singh, Jarnail Singh sons of Baggu. Subsequent thereto, Jarnail Singh also died and mutation regarding inheritance of his estate was entered on 28.7.1972, in favour of appellant, respondent Nos.1 and 2 and Labh Singh, Labh Singh also died thereafter and mutation qua his property was also sanctioned on 29.5.1973 in favour of the appellant and respondent Nos. 1 and 2. It is also evident from the records that after sanction of mutation in the year 1960, qua land left by deceased Baggu, respondent No. 2, had sold l/8the share of land vide sale deed dated 12.6.1964. It is further evident from the records that both Jarnail Singh and Labh Singh had died unmarried and issueless. 1 and 2. It is also evident from the records that after sanction of mutation in the year 1960, qua land left by deceased Baggu, respondent No. 2, had sold l/8the share of land vide sale deed dated 12.6.1964. It is further evident from the records that both Jarnail Singh and Labh Singh had died unmarried and issueless. In her deposition, before the Court, the appellant had specifically admitted that she had filed appeals against mutations, which were sanctioned in the year 1972-73 qua the land left by the deceased Jarnail Singh and Labh Singh respectively. As such it is crystal clear that the appellant had come to know about wrong sanctioning of mutation in favour of respondent Nos.1 and 2 as back as in the years 1972-73, thereafter, she never objected to the entries made in revenue record. Respondent No. 2, sold her share to respondent No. l and since 1974-75, land continued to be shown in the name of Karnail Singh, respondent No. l. It has also come on record that it was he who was managing the entire land. Appellant remained satisfied with the arrangement and never tried to agitate the same. She raised objection, only when his son Karnail Singh had sold his entire share in the land, as entered in revenue record and also mortgaged some portion falling to the share of the appellant in the year 1984-85 by way of registered sale deeds and a mortgage deed. 6. During arguments, it transpired that at present no land has been let with Karnail Singh, respondent No. l. It appears that at this stage, appellant had woken up from the slumber and tried to agitate the matter, which with the passage of time, had acquired finality between the parties. It further appears that maybe with a view to get benefit of some defects in sanctioning of mutation and to extract money from the subsequent vendees, i.e. Respondent Nos.3 to 10, in the present case, she had filed the present suit. Appellate Court below, after noticing entire evidence on record, has observed thus: I do not find any force in the contention raised by the learned Counsel for the appellant. The appellant has challenged the mutation No. 3275 dated 28.7.1972, which was incorporated in the revenue record. Appellate Court below, after noticing entire evidence on record, has observed thus: I do not find any force in the contention raised by the learned Counsel for the appellant. The appellant has challenged the mutation No. 3275 dated 28.7.1972, which was incorporated in the revenue record. An appeal was preferred by the appellant of S.D.M., Sunam against the mutation No. 3275 dated 28.7.1972, now it has been challenged after number of years. The provisions of law, as discussed above mutation No. 3275 dated 28.7.18972 at this stage cannot be declared illegal, null and void. So is the position about the mutation of inheritance No. 3342 dated 29.5.1973 sanctioned regarding inheritance of Labh Singh. The findings of the learned lower Court on issue No. 4 and 6 were accordingly returned in favour of the respondents and against the appellant. As regarding findings on issue No. 7 after the sanction of mutation No. 3275 dated 28.7.1972 and mutation No. 3342 dated 29.5.1973, respondent Tej Kaur had inherited 1/40 share and 7/120 share after the deaths of Jarnail Singh and Labh Singh and out of that she had sold 1/16 share well within her share. Thus, the sale deed No. 329 dated 26.6.1972 in favour of Karnail Singh and mutation No. 3382 dated 11.6.1974 sanctioned on the basis of said sale deed cannot beheld illegal and the findings on this issue were also correctly returned. The appellant is also aggrieved of the findings recorded under issue No. 14,whereby respondent Karnail Singh held entitled to 71/240 share. The total land measures 177 kanals 8 marlas and the share of respondent Karnail Singh roughly comes to 52 kanals 10 marlas. Excepting sale deed No. 1317 dated 29.12.1986 in respect of four kanals are within the share of respondent , Karnail Singh. After the year 1973-74, as is evident, respondent Karnail Singh had been recorded to be owner out of 1/2 share of the suit land and his share exceeded more than 54 kanals 17 marlas. Vendees purchased the suit land after satisfying the revenue record and as such are protected under Section 41 of the Transfer of Property Act being bona fide purchasers for consideration. The learned lower court rightly recorded the findings on issues No. 9 to 13 and 22 in favour of the respondents. Vendees purchased the suit land after satisfying the revenue record and as such are protected under Section 41 of the Transfer of Property Act being bona fide purchasers for consideration. The learned lower court rightly recorded the findings on issues No. 9 to 13 and 22 in favour of the respondents. The provisions of law referred by the learned Counsel for the appellant as such do not help the appellant in any manner. Nothing was agitated by the learned Counsel for the appellant against the remaining issues. 7. This Court is of the opinion that the Courts below were perfectly justified while partly decreeing the suit and dismissing the appeal of the appellant. There exists sufficient material on record to show that when mutations regarding inheritance of Baggu, Jarnail Singh and Labh Singh, deceased were sanctioned, she was present, she even had laid challenge to the mutations sanctioned qua land left by Karnail Singh and Labh Singh. Thereafter, she took no steps to get the same rectified, rather she remained satisfied when her sons and daughters used the land the way they like. Now, by filing the present suit, an attempt has been made to unnecessarily harass and pressurise respondent Nos.3 to 10, who are subsequent purchasers. Both the Courts below, have further justified in holding that the subsequent vendees were bona fide purchasers. Admittedly, when land was purchased by respondent Nos.3 to 10 no litigation whatsoever was pending between appellant and her children i.e., Respondent Nos.1 and 2. In their written statement, subsequent purchasers had specifically stated that they were bonafide purchasers for consideration and without any notice of the rights of the appellant in the land, in dispute. After 1974-75, in all Jamabandis, land to the extent purchased by them, was shown in the revenue records, in the name of Karnrail Singh, respondent No. 1. In their deposition before the Court, DW1 and DW2 and DW3 had specifically stated that before purchasing the land they had satisfied themselves regarding title of Karnail Singh from the Patwari and the revenue record. There is no evidence on record that the appellant ever remained in possession of the property, which was purchased by respondent Nos.3 to 10. Rather, it has come on record that before sale of the property, they were put in possession of the land, in dispute, by Karnail Singh. There is no evidence on record that the appellant ever remained in possession of the property, which was purchased by respondent Nos.3 to 10. Rather, it has come on record that before sale of the property, they were put in possession of the land, in dispute, by Karnail Singh. Once, it is established on record that mutations, which were sanctioned in the year 1972-73, were within the knowledge of appellant and she had even laid challenge to those mutations, both the Courts below were justified to say that her challenge to those mutations, was barred by limitation. 8. To contend, to the contrary, Shri Singla has placed reliance upon a Single Bench Judgment of this Court in Darshan Singh and Ors. v. Mohinder Kaur (now deceased) and Ors., 1987 P.L.J. 4. However, facts of above mentioned judgment are such that it has no relevancy so far as the present dispute is concerned. In that case, a co-sharer was in possession of the property, in dispute. In that situation, it was held that he need not to challenge wrong entries made by the revenue officers in the revenue record. But in the present case, facts indicate to the contrary. Appellant was not in possession of the property, which was purchased by the respondent Nos.3 to 10. She challenged wrong mutations entered, however, subsequent thereto, she remained satisfied and allowed the entries in revenue record to continue in the name of her children. It obviously means that she had acquiesced her right to claim share in the property left by Jarnail Singh and Labh Singh, her deceased son. At this stage, when property had already been sold/mortgaged by her children to respondent Nos.3 to 10, she had rightly been not allowed to reagitate the matter regarding sanctioning of the mutation in the year 1972-73. No legal lacuna has been indicated, which may necessitate any interference by this Court. Dismissed.