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2017 Supreme(P&H) 144
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMOL RATTAN SINGH, J.
Nirbhai Kaur - Appellant
Vs.
Kamaljit Singh - Respondent
RSA No. 3305 of 2015 (O&M)
Decided On : 03-02-2017
For the Appellant : Mr. B.S. Khehar
For the Respondent: Mr. H.S. Batth
The plaintiff, having purchased the same share of the plot prior to the defendant, was entitled to possession of the suit property even without partition, in accordance with Section 48 of the Transfer of Property Act.
Headnote:
Possession - Transfer of Property Act - Section 48
Fact of the Case:
The plaintiff sought possession of a plot which she claimed to have purchased and possessed since 2000. The defendant, who had purchased a share of the same plot in 2003, was found to be in possession of the plot. The lower appellate Court held that the plaintiff could not be given specific possession of any part of the suit land until partition proceedings were effected.
Finding of the Court:
The Court found that the plaintiff, having purchased the same share of the plot prior to the defendant, was entitled to possession of the suit property even without partition, in accordance with Section 48 of the Transfer of Property Act.
Issues: The main issues were whether the plaintiff was entitled to the benefit of Section 48 of the Transfer of Property Act and whether the plaintiff and the defendant were co-sharers in the suit property.
Ratio Decidendi: The plaintiff, having purchased the same share of the plot prior to the defendant, was entitled to possession of the suit property even without partition, in accordance with Section 48 of the Transfer of Property Act.
Final Decision: The plaintiff was held entitled to possession of the suit property presently held by the defendant, with the exact metes and bounds of her entitlement to be determined in partition proceedings of the joint holding of the land of 27 kanals.
Amol Rattan Singh, J.
This appeal has been filed by the plaintiff after her suit seeking possession of a plot measuring 248 sq. yards (fully described in the judgment of the learned Civil Judge (Junior Division), Ludhiana, was decreed by that Court but on appeal by the respondent herein (defendant), that judgment and decree was reversed by the learned first appellate Court, with the suit of the appellant-plaintiff being dismissed.
2. The facts, as taken from the judgments of the learned Courts below, are that as per the appellant-plaintiff (hereinafter to be referred to as the plaintiff), she is the owner of the aforesaid plot of land situated in the revenue estate of village Haibowal Kalan, Tehsil and District Ludhiana. She is stated to have purchased the suit land from one Mehar Singh Sandhu, resident of village Sahnewal, Tehsil and District Ludhiana, vide a sale deed registered on 22.11.2000. Mehar Singh, in turn, is stated to have purchased the plot from one Smt. Santosh Jindal vide a sale deed registered on 20.05.1994.
In that sale deed dated 20.05.1994, it was further stated that Smt. Santosh Jindal had purchased it from one Ishar Kaur vide a registered sale deed dated 18.04.1990.
Thus, it was contended that the plaintiff had purchased the suit property after fully verifying the aforesaid original sale deed, the boundaries of the property on the spot and that she was delivered possession of the plot on 22.11.2000, i.e. the date of registration of the sale deed in her favour. She also got the mutation sanctioned in her favour thereafter and claimed to have continued in peaceful possession thereof without interference from anybody.
3. The plaintiff was stated to be posted as a Divisional Superintendent (Accounts) in the office of the Senior Executive Engineer, A.H.C. Maintenance, O & H Division, Punjab State Electricity Board, Ganguwal, District Ropar, since 1989, with her husband also being posted on a similar post at Nawanshahar.
It was contended that after retirement, the couple had thought of settling in Ludhiana, and towards that end, they had purchased the suit property. However, since they were living at Anandpur Sahib (District Ropar), it was not possible for them to keep visiting the plot frequently and when they visited it in the month of March 2004, they were shocked to see that two small “Kacha” rooms had been constructed over it. Upon making enquiries, they came to know that the respondent-defendant (hereinafter to be referred to as the defendant), Kamaljit Singh, had encroached upon the plot by taking undue benefit of the absence of the plaintiff, allegedly in collusion with one Sukhjinder Kaur, who is the daughter-in-law of Mohan Singh, (later referred to as Maha Singh), husband of the aforementioned Ishar Kaur, the owner of the plot from whom Santosh Jindal had purchased the property, before selling it to Mehar Singh, vendor of the suit property to the plaintiff.
The said Sukhjinder Kaur was stated to have got executed a “false sale deed no.512 dated 07.04.2003”, of the suit property, in her favour.
4. It was, therefore, contended in the plaint that since the plaintiff had been in possession of the suit property since 22.11.2000, from the time when the sale deed was registered in her favour and her predecessors-in-interest were in possession since 18.04.1990, therefore, the sale deed dated 07.04.2003, in favour of the defendant, was null and void even in terms of Section 48 of the Transfer of Property Act, 1882.
The plaintiff having approached the defendant requesting him to hand over the vacant possession of the property, he instead filed a suit for permanent injunction against her.
Hence, it was contended that the defendant being in illegal possession of the suit property, she was constrained to file the suit seeking possession of it, on 28.10.2005.
5. Upon notice issued to him, the defendant filed his written statement taking preliminary objections on maintainability as he contended that he had purchased
