Dismissed

Vandana v. Jahangiri Devi and Ors.

Punjab & Haryana HC25 Apr 2014RSA/3919/2012

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed this defendant's second appeal challenging the First Appellate Court's judgment which had upheld the plaintiffs' suit for declaration of ownership shares and permanent injunction against alienation of ancestral property during pendency of civil litigation.

What did the court decide?

The appeal was dismissed; the impugned judgment and decree of the First Appellate Court were upheld.

Vandana Vs Jahangiri Devi and Ors. — Landlord and Tenant | Punjab & Haryana HC (2014)

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RSA No.3919 of 2012 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.3919 of 2012 (O&M) Date of decision:25.04.2014

Smt. Vandana

....Appellant

Versus

Jahangiri Devi and others

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....Respondents

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CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:- Ms. Monisha Lamba, Advocate for the appellant.

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RAKESH KUMAR GARG, J (ORAL)

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This is defendant's second appeal challenging the judgment and decree of the lower Appellate Court dated 8.6.2012 whereby appeal of the plaintiff-respondents No.1 and 2 against the judgment and decree of the trial Court dismissing their suit has been accepted and the suit for declaration to the effect that respondents No.1 and 2 were co-owners in the house in dispute to the extent of 1/5^th share each has been decreed and further holding that sale deed dated 24.2.2006 and 29.5.2006 are not binding upon their rights to the extent of their shares.

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As per the averments made in the suit, plaintiffrespondents No.1 and 2 along with defendants No.1, 2 and 3 (i.e. respondents No.3 to 5) are the co-owners to the extent of 1/5^th share

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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of each out of the suit property as detailed in the plaint which was their ancestral property and was earlier owned by their father-Durga Parshad. It was further averred in the suit that said Durga Parshad had expired on 28.5.1996 leaving behind respondents No.1 to 5 as his only legal heirs qua the suit property. No partition has ever taken place between the plaintiffs and defendants No.1 to 3 and as such they were in joint possession. It was further averred that defendants No.3 to 5 in collusion with each other executed a sale deed dated 24.2.2006 in favour of defendant No.4 in an illegal and arbitrary manner which was liable to be set aside and further defendant No.4 alienated the suit property in favour of the appellant vide registered sale deed dated 29.5.2006 and now appellant was bent upon to take possession of the suit property illegally and unlawfully. Hence the suit.

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Upon notice, defendant No.1 filed written statement alleging that plaintiffs and defendant No.2 have no concern with the property whereas he and defendant No.3 entered into an agreement with regard to suit property on 2.6.2003 vide which the suit property was duly divided between them in equal shares and thus, the plaintiffs have no right to claim over the suit property in any manner whatsoever.

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Defendant No.3 filed separate written statement taking preliminary objections regarding maintainability etc.

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Defendant No.4 also filed separate written statement

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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raising various preliminary objections. It was denied that plaintiffs were absolute co-owners in the suit property. It was further averred that defendants No.1 and 3 were absolute owners and in possession of the suit property. Defendant No.4 was the bonafide purchaser of the suit property from defendant No.3 and Smt. Sunita vide registered sale deed dated 24.02.2006 which has been further sold to defendant No.5 (appellant). It was further averred on behalf of defendant No.4 that she has no personal knowledge regarding any litigation till she she received the summons under the contempt petition.

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Appellant (defendant No.5) filed separate written statement raising various preliminary objections. On merits, it was submitted that appellant was a bona-fide purchaser for valuable consideration paid to the vendor and executed a sale deed of the suit property on 29.5.2006 and put her in physical possession. It was denied that plaintiffs were co-owners to the extent of 1/5^th share each in the suit property. It was further averred that she had purchased the suit property from its previous owner Seema Saini (defendant No.4/respondent No.6) vide registered sale deed dated 29.5.2006 for a total sum of 1,10,000/- and she was delivered vacant and peaceful possession of the suit property on the spot and said Seema Saini was a bona fide purchaser for consideration and purchased this property from its vendor Smt. Omvati for sale consideration of 1,00,000/-. It was denied that plaintiffs were members of the joint

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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Hindu Family and thus, dismissal of the suit was prayed for.

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None appeared on behalf of defendant No.2 and thus,

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she was proceeded against ex-parte vide order dated 5.9.2005.

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From the pleadings of the parties, following issues were

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framed:-

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1. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP

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2. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP

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3. Whether suit of the plaintiff is not maintainable in the present form? OPD

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4. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD

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5. Whether the plaintiffs have concealed the material and true facts from the Court? OPD

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6. Relief.

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During the pendency of the suit, defendant No.3 failed to appear and was proceeded against ex-parte vide order dated 28.11.2006.

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Parties led their respective evidence.

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After affording opportunity of hearing to the counsel for

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the parties, trial Court decided issues No.1 and 2 against the plaintiffs whereas issues No.3 to 5 were not pressed and were decided against the defendants. Resultantly, the suit was dismissed.

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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Aggrieved from the judgment and decree of the trial Court dated 24.8.2011, plaintiffs filed an appeal before the First Appellate Court which was accepted vide impugned judgment and decree dated 8.6.2012.

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While accepting the appeal, lower Appellate Court observed that vide order dated 20.01.2006, parties to the suit were ordered to maintain status quo with regard to alienation of the suit property but in violation of that injunction order, defendant No.3-Smt. Omwati sold the share of the suit property vide registered sale deed dated 24.02.2006 in favour of Seema Saini and thereafter, Seema Saini further sold the suit property in favour of appellant vide registered sale deed dated 29.5.2006 and thus, it cannot be held that appellant or Seema Saini i.e. respondent No.6 were bona fide purchasers of the suit property for valuable consideration. Trial Court also recorded a finding that before purchase of the suit property, appellant had not made any bona fide inquiry.

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Still not satisfied, defendant-appellant has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

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i) Whether the impugned judgment and decree is sustainable in the eyes of law?

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ii) Whether the evidence has been totally misread and mis-appreciated by the learned Court below?

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iii) Whether after proving the settlement between brothers,

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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after constructing a wall, it can be safely presumed that the suit property was partitioned?

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Learned counsel for the appellant has vehemently argued that the factum of pendency of civil suit was not disclosed to Seema Saini and similarly Seema Saini did not disclose about the pendency of the case to the appellant and thus, appellant had made inquiry and satisfied herself with regard to private settlement before the entire family which shows that respondents No.1 and 2 have no share in the suit property and thus, even if the suit property was purchased during the pendency of the injunction order, appellant has to be considered a bona fide purchaser for valuable consideration without notice.

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I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below.

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The argument raised is mis-conceived and liable to be rejected outrightly. It stands established that Durga Parshad was the original owner of the suit property who left behind respondents No.1 to 5 as his legal heirs. Thus, the plaintiff-respondents were entitled to inherit the estate of Durga Parshad to the extent of their share. Admittedly, respondents No.1 and 2 are not signatories to the alleged private partition dated 2.6.2003 between respondents No.3 and 5 and in view thereof, it cannot be held that such a partition would bind plaintiff-respondents as well.

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Moreover, in view of the fact that appellant has purchased

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.3919 of 2012 (O&M)

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the suit property during the pendency of the injunction order itself would show that the appellant has failed to make the inquiries with regard to the suit property as an ordinary prudent person could have made and in view thereof, it cannot be held that appellant is the bona fide purchaser of the suit property for valuable consideration.

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No other point was argued.

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Thus, no substantial questions of law, as raised, arise in

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this appeal.

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Dismissed.

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April 25, 2014 savita

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(RAKESH KUMAR GARG) JUDGE

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Kadian Savita 2014.05.01 10:46 I attest to the accuracy and integrity of this document High Court Chandigarh

Vandana v. Jahangiri Devi and Ors.

Case brief

What is this about?

What did the court decide?

Vandana v. Jahangiri Devi and Ors.

Case brief

What is this about?

What did the court decide?

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