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2009 DIGILAW 745 (PNJ)

Buta Singh v. Harbhajan Singh

2009-04-20

VINOD K.SHARMA

body2009
JUDGMENT VINOD K. SHARMA, J. (ORAL) - C.M. No. 1636-C of 2007 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 406 days in refiling the appeal. 2. For the reasons stated in the application, C.M. is allowed and the delay of 406 days in refiling the appeal is ordered to be condoned. 3. This order shall dispose of R.S.A. No. 595 of 2007 titled Buta Singh Vs. Harbhajan Singh and another and R.S.A. No. 596 of 2007 titled Buta Singh and another Vs. Harbhajan Singh and others, as common questions of law and fact are involved. 4. For brevity sake facts are being taken from R.S.A. No. 595 of 2007 titled Buta Singh Vs. Harbhajan Singh and another. 5. This regular second appeal is directed against the judgment and decree dated 14.9.2005 passed by the learned Courts below vide which the suit filed by the plaintiff/respondents for declaration and permanent injunction stands decreed. 6. The plaintiff/respondents brought a suit for declaration and permanent injunction claiming ownership and possession of the land in dispute on the basis of a sale deed executed by Khazan Singh predecessor-in-interest of the defendant/appellant i.e. his father on 9.6.1988. The plaintiff/respondents also challenged the judgment and decree dated 17.9.1993 suffered by Khazan Singh in favour of the appellant/defendant, to be null and void and not binding on their rights, as it was said to have been suffered, after the sale of land in favour of the plaintiff/respondents. 7. The suit was contested by the appellant/defendant, primarily on the plea that he was owner in possession of the suit land in pursuance to the judgment and decree suffered by Khazan Singh in his favour. The mutation also stood sanctioned in his favour. 8. The learned Courts below on appreciation of evidence, have recorded a concurrent finding of fact, that the plaintiff/respondents are owner in possession of the suit land in pursuance to the registered sale deed executed by Khazan Singh in their favour. The learned trial Court was pleased to hold that the judgment and decree executed, in favour of the appellant/defendant was null and void and not binding on the rights of the plaintiff/respondents. Khazan Singh had no right to suffer the decree after execution of sale deed qua land in dispute. 9. The learned trial Court was pleased to hold that the judgment and decree executed, in favour of the appellant/defendant was null and void and not binding on the rights of the plaintiff/respondents. Khazan Singh had no right to suffer the decree after execution of sale deed qua land in dispute. 9. In appeal, findings recorded by the learned trial Court have been affirmed by the learned lower appellate Court, and the appeal dismissed. 10. Mr. V.K. Jain, learned senior counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law: - "1. Whether the learned Courts below could consolidate the suits filed by the appellant as well as respondents despite the fact that they were concerning different properties? 2. Whether the suit for declaration for setting aside judgment and decree dated 17.9.1993 was time barred?" 11. In support of the substantial question of law, the learned senior counsel for the appellant contends, that the learned Courts below have committed an error in law in consolidating both the suits, though they were relating to different properties. 12. On consideration, I find no force in this contention, the learned Courts below held that the suit land was the one, qua which Khazan Singh executed sale deed, and subsequently suffered a decree in favour of his son i.e. defendant/appellant. 13. The contention of the learned senior counsel, that the suit was time barred, also cannot be accepted. Admittedly, the plaintiff/respondents were not party to the decree suffered by Khazan Singh. 14. Even otherwise, in view of the sale deed dated 9.6.1988, Khazan Singh was left with no interest in the property to suffer decree, which was nothing but a paper transaction, which did not affect the rights or title of the plaintiffs. 15. The plaintiff/respondents, therefore, were entitled to protect their land by decree of injunction, being true owners of the property. The suit was otherwise filed within three years of knowledge of the decree, which cannot be said to be time barred as contended. 16. Consequently, the substantial questions of law framed are answered against the appellant. 17. Appeal is accordingly ordered to be dismissed, but with no order as to costs.