Sale Deed--Registered sale deed executed before partition but not considered during partition proceedings--Purchaser can claim his share thereafter being bonafide purchaser

JUDGMENT

Mr. Amit Rawal, J.:- This order of mine shall dispose of two Regular Second Appeals bearing No.3181 and 2287 of 2017 as the common question of fact and law is involved.

2. RSA No.3181 of 2017 is arising out of decision of Civil Suit No.310 of 2007 titled as “Jangir Singh & others Versus Smt.Kammo Bai (deceased) through L.Rs & others for declaration (hereinafter referred as “Suit No.1”), whereas RSA No.2287 of 2017 is arising out of decision of Civil Suit No.92 of 2008 titled as “Smt.Kammo Bai & another Versus Jangir Singh & others for declaration (hereinafter called as “Suit No.2”).

3. In Suit No.2, the plaintiffs sought the relief of declaration notwithstanding anything contained contrary in the impugned sale deed 15.12.1995 executed by plaintiff No.1 in favour of the defendants as plaintiff continued to be owners in possession of land measuring 112 kanals 15 marlas, whereas in the first suit, the plaintiffs sought relief of declaration notwithstanding anything contained contrary in the revenue record, the plaintiffs as owners in equal share of land measuring 12 kanals on the basis of the sale deed 15.12.1995 with decree of possession of the suit land with consequential relief of permanent injunction seeking restraint against defendant No.1 from alienating and transferring the land.

4. The facts are common and, therefore, taken from RSA No.3181 of 2017.

5. Plaintiffs alleged that Kammo Bai defendant No.1 was having 1/11 share measuring 38 kanals 5 marlas out of total land measuring 420 kanals 14 marlas. Vide sale deed dated 15.12.1995, she sold land measuring 12 kanals in favour of the plaintiffs for a valuable consideration acknowledging the possession of the plaintiffs. Mutation bearing No.1914 in this regard was sanctioned and carried in the jamabandi for the year 1997-98. Accordingly, the share of Kammo Bai was reduced to 525 shares from 765 as she had, vide sale deed, ibid, sold 240 shares. However, prior to the aforementioned sale deed, both the parties, i.e., the plaintiffs and defendant Nos.1 and 2 instituted an application for partition of the land in the Court of Tehsildar-cum-Assistant Collector Grade-1, which was decided on 18.06.1998. However, the sold land of 12 kanals which included the share of defendant No.1, but the partition order did not notice her 240 shares subject matter of the sale deed. Plaintiffs had already sown paddy crop for Kharif 2007. By taking the undue advantage of the entry in the revenue record, defendant No.1 illegally trespassed and forcibly occupied the same with the help of her husband. Plaintiffs requested defendant No.1 to vacate the same, but she refused to adhere the request and came to know that defendant No.1, during the pendency of the partition proceedings, sold the land, but the same was not reflected in the revenue record nor the possession was handed over. In order to cause wrongful loss to the plaintiffs, defendant No.1 mischievously and with a purpose to defeat the rights of the plaintiffs also mortgaged the land measuring 11 kanals 14 marlas, i.e., 1/3 share of land measuring 35 kanals 2 marlas including the suit land while taking loan of Rs.1,00,000/- from defendant No.3-bank.

6. Defendant Nos.1 and 2 opposed the suit by raising numerous preliminary objections and alleged that the predecessors of the plaintiffs, namely, Lehna Singh, Pathana Singh, Bagha Singh sons of Tikka Singh son of Gurdit Singh mortgaged with possession their land measuring 46 kanals 2 marlas vide registered mortgage deed dated 28.04.1964 comprising of various khasra numbers in favour of Roshan Lal son of Kalu Ram for a sum of Rs. 2,000/-. Roshan Lal further mortgaged the aforementioned land in favour of his father Kalu Ram son of Sardari Lal through registered mortgage deed dated 09.09.1968 and Kalu Ram further mortgaged the said land in favour of defendant No.1 through mortgage deed dated 05.10.1982 and delivered the actual possession and till then her possession was continuous. Since no ste