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2014 DIGILAW 834 (PNJ)

Balraj Kaur v. Gurnek Singh

2014-05-13

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- Appellant filed a suit for declaration to the effect that she was owner in possession of land measuring 11 kanals 18 marlas bearing killa No.32/1(8-0), 10(3-18) khata/khatauni No.420/847 as per jamabandi for the year 2005-2006 situated at village Bhoma, Tehsil and District Amritsar, with a consequential relief of permanent injunction restraining the defendant-respondents from taking possession of the suit property from him in partition proceedings. 2. Upon notice, defendant-respondents No.1 to 3 appeared and filed written statement. However, defendant-respondents No.4 to 7 were proceeded against ex-parte. Defendants No.1 to 3 raised various preliminary objections with regard to maintainability of the suit as well as jurisdiction of the Civil Court. On merits, it was submitted that Kartar Singh-vendor of the appellant was not competent to sell and execute any sale deed regarding the land more than his share in favour of the plaintiff-appellant. Since he sold the land in dispute to the plaintiff vide registered sale deed dated 10.6.1987 more than his share, no declaration on the basis of the sale deed could have been granted. 3. On the basis of the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to the declaration as prayed for ? OPP. 2. Whether the plaintiff is entitled to the permanent injunction as prayed for ? OPP. 3. Whether the plaintiff has no locus standi to file the present suit ? OPD. 4. Whether the plaintiff is estopped by her own act and conduct from filing the present suit ? OPD. 5. Whether the suit is bad for non-joinder and misjoinder of necessary parties ? OPD. 6. Whether the suit of the plaintiff is not legally maintainable ?OPD 6-A) Whether the plaintiff is bona fide purchaser qua the suit land ? OPP. 6-B) Whether jurisdiction of Civil Court is barred to entertain the present suit ? OPP. 7. Relief. 4. The parties led oral as well as documentary evidence in support of their respective claims. 5. After hearing learned counsel for the parties and appreciating the material evidence on record, trial Court dismissed the suit vide judgment and decree dated 19.9.2012. 6. Appeal filed on behalf of the appellant against the aforesaid judgment and decree before the First Appellate Court was also dismissed vide impugned judgment and decree dated 22.8.2013. While dismissing the appeal, lower Appellate Court observed as under:- “10. 6. Appeal filed on behalf of the appellant against the aforesaid judgment and decree before the First Appellate Court was also dismissed vide impugned judgment and decree dated 22.8.2013. While dismissing the appeal, lower Appellate Court observed as under:- “10. The first and foremost contention of the learned counsel for the appellant was that the ownership and possession of the appellant over the land measuring 11 kanals 18 marlas was duly proved on the file. I do not find any force in the above contention. No doubt, jamabandis have been placed on record which have been duly proved and exhibited as PX and PY and even the Khasra girdwari has been proved on the file as Ex.PZ. However, perusal of the above documents revealed that in the column of ownership the name of Shamlat Patti Kashmiri Hasab Rasab is recorded and the name of Kartar Singh is recorded in the column of cultivator and therein the reference of the plaintiff/appellant having purchased the share of Kartar Singh and being in possession is recorded. However, the fact remains that the appellant is merely recorded in the column of cultivation and there is no mention regarding the exclusive ownership of the khasra number in question to be of Kartar Singh or for that matter to be of the plaintiff/appellant. Perusal of the documents Ex.D2 reveals that in fact the share of Kartar Singh who is vendor of the plaintiff/appellant was only 2 kanals 18 marlas which has been purchased by Balraj Kaur and it is clear that Kartar Singh could not have sold more than his share and even if the sale deed in favour of the appellant is qua land measuring 11 kanals 18 marlas, yet the same would in no manner which entitle her to seek ownership of the land so mentioned in the sale deed, which was much more than the share belonging to her vendor Kartar Singh. Thus, the plaintiff/appellant had failed in proving that Kartar Singh was the owner / shareholder of the land to the extent of 11 kanals 18 marlas and thus, had failed to prove her entire case and as such no declaration in her favour could be granted qua the land measuring 11 kanals 18 marlas.” 7. Findings of the trial Court on other issues with regard to Civil Court jurisdiction and maintainability of the suit were also affirmed. 8. Findings of the trial Court on other issues with regard to Civil Court jurisdiction and maintainability of the suit were also affirmed. 8. Still not satisfied, plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal:- a) Whether the impugned judgment and decree dated 22.8.2013 and 19.9.2012 passed by the courts below are contrary to law, evidence and facts on the file ? b) Whether the courts below are based on misreading of evidence ? c) Whether the plaintiff-appellant is bona fide vendee for valuable consideration and is protected U/s 41 of the Transfer of Property Act ? d) Whether the jurisdiction of civil court is barred as per Section 158 of the Punjab Land Revenue Act, 1887? e) Whether the first appellate court has failed to decide the first appeal issue-wise ? 9. At this stage, it may be noticed that it could not be disputed before this Court that Kartar Singh-vendor of the appellant was owner to the extent of land measuring 2 kanals 13 marlas as per his share in the Shamlat Patti and thus, he could not have sold the land in favour of the appellant more than his share and thus, the sale deed dated 10.6.1987 whereby he sold 11 kanals 18 marlas of land in favour of the appellant could not have been executed legally and has no effect on the rights of the defendants. Thus, the appellant was not entitled to the declaration as claimed. 10. Not only this, even before this Court, counsel for the appellant was at loss to show how the Civil Court had jurisdiction in a case where the possession of the land was being taken in the partition proceedings which is domain of the Revenue Court and in case the appellant had any grievance against the partition proceedings, then he has remedy available to him. Moreover, the appellant is seeking declaration being owner in possession of the land measuring 11 kanals 18 marlas bearing specific khasra and whereas he has purchased the share of his vendor in the Shamlat Patti and in view of the fact that land in question is still under the partition proceedings which are yet to attain the finality, the suit was not maintainable in the present form. 11. Thus, no substantial questions of law, as raised, arise in this appeal. 12. Dismissed. ---------0.B.S.0------------