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2016 Supreme(P&H) 1116
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Rekha Mittal
RSA No. 2778 of 2012 (O&M)
Kartar Kaur
v.
Sarabjit Singh & Ors.
{Decided on 08/07/2016}
For the Appellant:Mr. G.S. Punia, Senior Advocate with Mr. P.S.Punia, Advocate.
For the Respondent No. 1:Mr. S.S.Salar, Advocate.
Headnote:Pleadings--Mere non filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.
(A) Civil Procedure Code, 1908, O.6 R.1--Pleadings--Replications--As the appellant was given an opportunity to file replication to the amended written statement and she availed of that opportunity by making a statement that her earlier replication be read as replication to the amended written statement, her failure to give any reply or controverting the facts added by way of amendment would amount to admission on her part.
(B) Civil Procedure Code, 1908, O.6 R.1--Pleadings--Replications--Mere non filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.
(C) Transfer of Property Act, 1882, S.3--Bonafide Purchaser--Landowner executed sale deed in favour of his mother but no entry in revenue record was made--Landowner subsequently sold the land to respondent who had after making enquiry from revenue record--Later, plaintiff (mother of land owner) claimed ownership on basis of being bonafide purchaser u/s 3 TPA--Held; Explanation I appended to Section 3 TPA, no doubt, would have been attracted in the present case if the respondent had not made an enquiry from the appellant/plaintiff with regard to any encumbrance on the suit land--Since plaintiff has not appeared in the witness box nor produced any material to show her incapacity to examine herself contention of respondent accepted that plaintiff (mother of land owner) was present during negotiation and assured that it was free from any encumbrance--Claim of mother of landowner dismissed.
Mrs. Rekha Mittal, J.:- The present appeal has been directed against the consistent findings recorded by the Courts below whereby suit filed by the appellant/plaintiff for declaration, permanent injunction and possession was dismissed by the Civil Judge (Junior Division). Fatehgarh Sahib (hereinafter to be referred as “the trial court”) vide judgment and decree dated 10.5.2011 and the appeal preferred by the plaintiff/appellant against the judgment and decree of the trial court did not find favour with the Additional District Judge, Fatehgarh Sahib.
2. The facts relevant for disposal of the present appeal are that Kartar Kaur appellant staked her claim to the property on the basis of registered sale deed dated 11.6.1999 purported to be executed by Mohinder Singh son of Sulakhan Singh (her son). It is pleaded that possession of suit land was delivered in her favour on the basis of sale deed but Sarabjit Singh defendant No. 1 took possession of the suit property forcibly from the plaintiff in June 2005. She handed over a copy of the sale deed to halqa patwari in 1999 for sanction of mutation but now she came to know that partwari had not sanctioned the mutation. The revenue entries in the names of defendant Nos. 1 and 2 are wrong and liable to be corrected in her name.
3. Sarabjit Singh respondent/defendant No. 1 filed the written statement raising preliminary objections inter alia maintainability, locus standi, concealment of material facts and jurisdiction of the Court. It has been denied that either the suit land was alienated in favour of the appellant or the plaintiff was in possession thereof or he has forcibly taken over possession of the suit land by taking advantage of illiteracy and old age of the appellant. It is further averred that the alleged sale deed is the result of fraud and misrepresentation and has no value in the eyes of law. Defendant No. 2 is the son of the plaintiff and they have tried to commit fraud in connivance with each other. He purchased the property, being bona fide purchaser and without any encumbrance, from Mohinder Singh through registered sale deed dated 23.11.2004 for a sale consideration of Rs. 33,86,000/-. The negotiation for purchase of property was made in presence of the plaintiff and she admitted that the property was free of every encumbrance. Mohinder Singh also executed an affidavit dated 23.11.2004 regarding sale deed in favour of the answering defendant. Mutation bearing No. 1145 sanctioned on the basis of sale in favour of the answering defendant is genuine and valid. All other material averments of the plaint have been denied with a prayer for dismissal of the suit.
4. Mohinder Singh defendant No. 2 did not contest the proceedings.
5. The plaintiff filed replication reasserting her stand taken in the plaint while controverting the allegations set up in the written statement.
6. The learned trial court, in view of pleadings of the parties, framed the following issues:-
1. Whether the plaintiff is entitled for a decree of declaration of suit property as prayed for in the head note of plaint?OPP
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed for in the head note of the plaint?OPP
3. Whether the plaintiff is entitled for possession of suit property as prayed for in the head note of the plaint?OPP
4. Whether the suit is not maintainable in the present form?OPD
5. Whether the plaintiff has no locus standi to file the present suit?OPD
6. Whether the plaintiff has concealed the true and material facts from the court?OPD
7. Whether the plaintiff has not come to the court with clean hands?OPD
8. Whether this court has no jurisdiction to try the present suit?OPD
8A. Whether the suit is not properly valued?OPD
9. Relief.
7. The parties were permitted to adduce evidence in support of their respective claims. The plaintiff examined Chanan Singh PW1, Sadhu Singh PW2, Sewa Singh PW3 and Rajinder Singh Deed writer PW4.
8. To rebut evidence of the appella
