MEHAR SINGH Vs. JAGMAL SINGH @ JAI PAL SINGH

JUDGEMENT

(1.) THE appellants -plaintiffs filed the suit, out of which the present regular second appeal arises, for declaration to the effect that they are owners of certain land situated in the area of Village Dhanora, Tehsil and District Kurukshetra as detailed in para nos. 1 and 3 of the plaint. The trial Court decreed the suit, but lower appellate Court reversed the judgment and decree of the trial Court and accordingly, dismissed the suit and the appellants -plaintiffs have, therefore, filed the present regular second appeal in this Court.

(2.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are that plaintiffs filed a civil suit alleging that Mam Raj son of Uda son of Jawaria, husband of respondent No.4/defendant no.1 and father of respondent no.5/defendant no.2, was owner of the suit land mentioned in para no.1 of the plaint. Mam Raj had mortgaged the said land with possession with defendant nos. 3 to 5 for a consideration of Rs.24,000/ - vide registered mortgage deed dated 21.06.1971 and mutation was sanctioned in favour of defendant nos. 3 to 5 on the basis of mortgage deed. Later on, Mam Raj being the owner of the said land, sold the land measuring 48 Kanals 9 Marlas for a consideration of Rs.30,000/ - vide registered sale deed dated 14.06.1972 to the plaintiffs. By virtue of sale deed, the plaintiffs have become owners of the land in their own rights. It is also averred in the plaint that mortgage consideration of Rs.24,000/ - was left with the plaintiffs to be paid to the mortgagees i.e. defendant nos. 3 to 5 and Rs.6,000/ - was received by the vendor Mam Raj but the mutation on the basis of sale deed was not sanctioned in favour of the plaintiffs by the revenue authorities for the reasons best known to them, though entries to that effect have been made in the revenue record on the basis of sale deed by the circle Patwari on 22.01.1974 and attested by girdawar Kanungo on 06.12.1974. It was also mentioned in the sale deed that the plaintiffs would be entitled to redeem the land on payment of the mortgage consideration to the mortgagees, however, mutation on the basis of the sale deed in favour of plaintiffs could not be sanctioned due to their non -appearance before the revenue authorities. After the death of Mam Raj, mutation was sanctioned in favour of defendant nos. 1 and 2 in equal shares. The plaintiffs were neither summoned nor informed. Taking advantage of the mutation, defendant no.2 sold the land measuring 24 kanals 4 marlas to defendant nos. 3 to 5 being mortgagees in possession, for a consideration of Rs.40,000/ - illegally with mala fide intention without any notice to the plaintiffs. Since the entire land measuring 48 kanals 9 marlas had already been sold by Mam Raj and defendant no.2 was not left with any share in the land, the same could not have been sold by defendant no.2. Notice was issued to the defendants. Defendant Nos. 1 and 5 were proceeded against ex -parte vide order dated 17.07.1979. Defendant Nos. 2 to 4 contested the suit. Defendant no.2 filed an independent written statement and defendant nos. 3 and 4 jointly filed separate written statement. Thereafter, counsel for defendant no.2 pleaded no instructions. As such defendant no.2 was also proceeded against ex -parte. In both the written statements, the defendants have taken identical preliminary objections and it was one of the objections that defendant nos. 4 and 5 are minors but they have been sued as major so the plaint may be rejected as such; suit does not lie in the present form; suit has not been properly valued for the purposes of court fee and jurisdiction. On merits, defendant no.2 alleged in his written statement that Mam Raj, father of defendant no.2, never sold any land in favour of the plaintiffs, he became blind 7 -8 years before his death. So, he was not in a position to execute any document much less the sale deed. The defendants averred that sale deed, if any, in possession of the plaintiffs, is false, fictitious document and result of fraud played by the plaintiffs on Mam Raj. Defendant no.2 has averred that she is sole heir of deceased Mam Raj. It has also been pleaded in the written statement that if sale deed is proved to have been executed then it was without any consideration and legal necessity and is not binding upon defendant No.2. It was also alleged that husband of plaintiff no.1 now represent by LR's and his brother entered into a conspiracy along with defendant no.1 to grab the property of Mam Raj. Defendant no.1 ­ Sona Devi has been wrongly alleged and declared to be widow of deceased Mam Raj at the time of succession of property while husband of Sona Devi is still alive. It is further averred that Sona Devi claimed on the basis of fabricated Will and a collusive decree in respect of the land of Mam Raj in her favour was obtained allegedly in connivance with plaintiff's husband and his brothers. All the transactions are result of conspiracy. Civil Court decree in favour of Sona Devi was found to be doubtful and has been ignored by the Collector while sanctioning mutation of property of the deceased Mam Raj. The mutation could not have been sanctioned in favour of the plaintiffs because the sale deed is not a genuine document. Defendant no.2 further admitted that she has sold 1/2 share of the land in favour of defendant nos. 3 to 5 and the said sale deed is for legal necessity. Defendant nos. 3 and 4 in their written statement submitted that they have purchased the land from defendant no.2 in good faith and for a consideration and they have no knowledge of previous sale, if any, made by Mam Raj. They have verified the title of defendant no.2 from the revenue record as well as from all other sources available at their command. Ultimately, they pleaded that the suit be dismissed with special costs. Plaintiffs filed replication to the written statements controverting the contents of the written statements as incorrect and reiterating the contents of the plaint as correct. On perusal of the pleadings of the parties, the following issues were framed by the trial Court on 24.11.1979: -

(3.) I have heard learned counsel for the parties and perused the record. Learned counsel for the appellants vehemently contended that findings of the trial Court on issue Nos. 1 and 3 are in favour of the appellants -plaintiffs and there is categorical finding that the appellants are owners and the sale deed dated 14.06.1972 (Ex.P1) is valid one and the plaintiffs are entitled to take possession of the land after getting it redeemed on deposit of mortgage money. The sale deed and mutation in favour of defendant no.3 as per sale by Sardari, does not confer any title of ownership on defendant nos. 3 to 5. She was incompetent to sell the suit land because land already stood sold in the name of the plaintiffs vide sale deed (Ex.P1) executed by Mam Raj, the original owner. With regard to the plea of defendants that they are bona fide purchasers for value, the learned trial Court has also recorded finding against defendant nos. 3 to 5. It is further contended by the counsel for the appellants that lower appellate Court has recorded erroneous finding that sale deed (Ex.P1) executed by original owner Mam Raj in favour of the plaintiffs has not been proved on record. Besides this, on issue no.3 the findings have been recorded that the defendants no. 3 to 5 are bona fide purchasers for value and are protected under the provisions of Transfer of Property Act. Learned counsel for the appellants further contended that the findings are not sustainable in the eyes of law. The sale deed executed by Mam Raj has been duly proved, certified copy of the same was also placed on record as Ex.P1 which is admissible in evidence being public record coming from the office of Sub Registrar. The sale deed was neither challenged by the legal heirs of Mam Raj nor by defendant nos. 3 to 5. Learned counsel for the appellants further contended that so far as finding of bona fide purchaser for value is concerned, there is complete misreading and non -reading of the evidence on record. There is categorical evidence with regard to the sale deed in favour of the plaintiffs. The entries were effected in the revenue record by the concerned revenue authorities. Mutation was also entered but it was not sanctioned due to non -appearance of the vendees at the time of hearing. The revenue record clearly indicates about the execution of sale deed by Mam Raj in favour of the plaintiffs is prior in time. It is further argued that mutation does not confer any title and it is only for fiscal purposes to update the revenue record. The sale deed is a document of title and it cannot be ignored. Learned counsel further contends that the issue with regard to admissibility of the certified copies of the public document in evidence is no more res integra. In support of his contention, learned counsel has relied upon various authorities which would be dealt with later.