High Court of Punjab and Haryana, Chandigarh
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Joginder Singh v. Rawail Singh & Anr - RSA-2371-2002  RD-P&H 1057 (22 February 2006)
DATE OF DECISION:February 28,2006
Rawail Singh and another
CORAM:- HON'BLE MR. JUSTICE VINEY MITTAL
PRESENT: Shri Arun Jindal, Advocate for the appellant.
Shri H.S.Kathuria, Advocate for the respondent.
Defendant No.1 Joginder Singh having concurrently lost before the two Courts below has approached this Court through the present Regular Second Appeal in a suit for declaration filed by the plaintiff Rawail Singh challenging the decree dated September 9,1985 collusively suffered by defendant No.2 Virsa Singh in favour of defendant No.1 Joginder Singh. The plaintiff further sought declaration regarding the correction of entries in the revenue record and also sought the possession of the suit land.
The plaintiff pleaded that defendant No.2 Virsa Singh was the owner of the suit land in the year 1966 and had entered into an agreement to sell dated August 3, 1966 with the plaintiff. A suit for specific performance was filed by the plaintiff. The said suit was decreed on May 31,1971. The sale deed was executed by the Local Commissioner appointed by the Court in execution of the decree on July 26,1976. The said sale deed was registered on July 28,1976.
The execution proceedings for possession were still pending but in order to defeat the aforesaid execution proceedings, defendant No.2 suffered a collusive decree in favour of defendant No.1 on September 9,1985. The plaintiff claimed that the aforesaid decree was illegal, bad and not binding upon the rights of the plaintiff.
Both the Courts have held that in view of the earlier decree dated May 31, 1971 and the sale deed in favour of the plaintiff on July 26/28,1976, the plaintiff had become owner of the suit land.
In these circumstances, it has been held that on September 9,1985, Virsa Singh, defendant No.2 was not owner of the suit land and, therefore, could not have suffered any decree in favour of defendant No.1 with regard to suit land. The suit filed by the plaintiff was decreed by the learned trial Court and appeal filed by defendant No.1 failed before the learned First Appellate Court.
Shri Arun Jindal, the learned counsel appearing for the appellant has argued that besides the decree in question, the defendant No.1 had purchased the share of Amar Singh who was the co-sharers of the suit land alongwith Virsa Singh, defendant No.2. In these circumstances, the learned counsel claims that the appellant is in possession of the suit land as a co-sharer in his own right.
However, I find that the aforesaid contention of the learned counsel cannot be accepted.
The suit had been filed by the plaintiff challenging the decree dated September 9, 1985 suffered by Virsa Singh in favour of Jogindeer Singh. He had sought the possession of the suit land on the basis of sale deed dated July 26/28,1976 executed in his favour on a culmination of the suit for specific performance in his favour. The plaintiff is, thus, entitled to the possession of the suit land. If the defendant Joginder Singh has any interest in the suit property on account of having purchased the share of one Amar Singh who is stated to be a co-sharer in the suit land, then only remedy available to enforce his rights of co-sharership in the suit land is by seeking a partition of the suit land.
No question of law, much less any substantial question of law, arises in the present appeal.
February 28, 2006 (Viney Mittal)
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