OMBIR Vs. MOHINDER

JUDGEMENT

(1.) By this judgment, R.S.A.Nos. 18 and 19 of 2005 are being disposed of together as they involve common questions of facts. The appellants had filed separate suits for declaration to the effect that they are owner in possession of the suit property. Briefly stated, the facts are that one Thambu and Dariya (father of appellants in R.SA. No. 19 of 2005) were real brothers. They were joint owner in possession of land measuring 377 kanals and 13 marlas which was alleged to be ancestral. It was pleaded that in the year 1978, an oral family settlement had taken place and Thambu had reliquished his entire share in the suit land in favour of the appellants in R.S.A. No. 18 of 2005 and similarly, Dariya had relinquished his entire share in favour of the appellants in R.S.A. No. 19 of 2005. A decree was said to have been suffered by Thambu and Dariya in Civil Suit No. 647 of 1980 in that regard. However, no mutation was sanctioned in favour of the beneficiaries of the decree. Thambu and Dariya, thereafter, are alleged to have sold the land in question to the present respondents by various sale deeds spread over the period of time in the years 1982, 1983 and 1984. It was in this backdrop that the appellants had filed the suits which were resisted by the respondents on the ground that they were the bona fide purchasers of the suit land and that they had purchased the same after verifying the revenue records which did not reflect any title in favour of the appellants. It was denied that the decree was suffered by Thambu and Dariya in favour of the appellants. The trial Court, after affording opportunities to the parties to adduce their oral as well as documentary evidence, dismissed the suits and in appeals, the findings of the trial Court have been affirmed. Now, the appellants have filed the present appeals assailing the judgments and decrees of the Courts below.

(2.) Shri Ashwani Bakshi, learned Counsel for the appellants contended that the suit land was ancestral and this fact was duly admitted in the written statements. He further contended that the suit land could not have been alienated as the appellants had the pre-existing rights in the same. Learned Counsel submitted that the decree was validly suffered by Thambu and Dariya on the basis of oral family settlement and, therefore, they were left with no right to alienate the property after passing of the decree. Shri R.S.Mittal, learned Senior Advocate appearing for the respondents, on the other hand, contended that concededly, the suit land was the property of the Hindu Joint Family at one point of time, but Thambu was not blessed with a son and was having only three daughters. He submitted that the appellants in R.S.A.No. 18 of 2005 are not his grandchildren and, therefore, they did not have any preexisting right in the suit land. Learned Counsel contended that the respondents are the bona fide purchasers of the suit land which they had purchased after verifying the revenue records which did not reflect any right or title in favour of the appellants.

(3.) Having considered the contentions of the learned Counsel for the parties and perused the record, I am of the view that the appeals deserve to be dismissed. Even if it is presumed that Thambu and Dariya had suffered a decree in the year 1980 in favour of the appellants, even then, there is no evidence on record to establish that the same was ever acted upon. Thambu and Dariya had executed the sale deeds and even as per the showing of the appellants themselves, the entries were never entered in their favour in the revenue record. That being so, there is no hesitation to hold that the respondents are the bona fide purchasers of the suit land. The appellants have failed to show any oral family settlement which could have resulted in the passing of the decree in the year 1980, but as stated above, even otherwise, the same was not acted upon and Thambu and Dariya had sold the suit land of their own free volition to the respondents. It has come in evidence in the testimony of PW3Smt. Maya Kaur, who is daughter of Thambu ( in R.S.A. No. 18 of 2005) that Thambu was not having any son. Even the plea of adoption of Dharambir (father of the appellants in R.S.A. No. 18 of 2005) as set up by the appellants has not been established on record. In view of this, the appellants in R.S.A. No. 18 of 2005 had no pre-existing right in the suit land even if it were to be held the property to be Joint Hindu Family property. There is, thus, reason to differ with the findings recorded by the Courts below.