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2020 Supreme(P&H) 608
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
MAHABIR SINGH SINDHU, J.
Rajinder Kaur – Appellant
Versus
Balbir Singh and Others – Respondents
Execution Second Appeal No. 168 of 2018
Decided On : 03-03-2020
Advocate Appeared:
For the Appellant : Mr. Rakesh Gupta.
The principle of lis pendens and the proper demarcation of property in a civil dispute were central to the court's decision.
Headnote:
fraud and collusion - Property Dispute - Code of Civil Procedure, Order 21 Rule 97 - [Code of Civil Procedure, Order 21 Rule 97] - The court rejected the objections of the appellant, emphasizing that the property dispute was not properly demarcated and the principle of lis pendens applied, rendering the Sale-Deed dated 25.11.2011 in favor of the appellant void.
Fact of the Case:
The appellant filed objections claiming to be the bona-fide purchaser of a property in a civil suit for possession. The objections were rejected by the lower courts, and the present appeal was filed against their orders.
Finding of the Court:
The court found that the objections of the appellant were rightly rejected by the lower courts, as the property dispute was properly demarcated and the principle of lis pendens applied, rendering the Sale-Deed dated 25.11.2011 void.
Issues: The main issues were whether the property of the Decree Holder was situated in a specific Khasra, whether the property was properly demarcated, and whether the objector was a bona-fide purchaser.
Ratio Decidendi: The court held that the Sale-Deed dated 25.11.2011 in favor of the appellant was void due to the principle of lis pendens and the properly demarcated nature of the property dispute.
Final Decision: The appeal lacked merit and was dismissed, but the dismissal of the objections of the appellant/objector would not be construed as a bar to take recourse to the legal remedies available under law against her vendor, if so advised.
JUDGMENT :
MAHABIR SINGH SINDHU, J.
1. Present execution second appeal (ESA) has been filed against the impugned judgment dated 14.02.2018, passed by learned Additional District Judge, affirming the order dated 14.11.2017 of learned Civil Judge (Junior Division), Patiala, whereby third party objections of the appellant were rejected.
2. It is contended by learned Counsel for the appellant that no doubt, there is a decree dated 29.10.2010 in favour of respondent No. 1-Balbir Singh (decree holder/plaintiff), but that is a result of fraud and collusion with respondent/JD No. 2/defendant No. 1-Surjit Kaur @ Doctarni as the property in question had been exchanged in many hands right from 21.02.2006, thus, both the Courts have committed grave error of law while rejecting the objections.
3. Heard learned Counsel for the appellant and perused the paper-book.
4. It transpires that civil suit for possession of Plot No. 38, measuring 4 Biswas i.e. 200 sq. yds. as described in the plaint, was filed on 21.01.2006 by the decree holder-Balbir Singh against respondent Nos. 2 to 4 (defendants/judgment debtors). Respondent No. 2/judgment debtor-Surjit Kaur contested the suit, but respondent Nos. 3 and 4, namely, Avtar Singh and Rajpal Kaur, were proceeded ex-parte on 18.05.2006 and 28.07.2006, respectively. Ultimately, the suit was decreed by learned Civil Judge (Jr. Divn.) Patiala, vide judgment and decree dated 29.10.2010. Thereafter, execution proceedings were initiated by the decree holder/respondent No. 1 and present appellant-Rajinder Kaur filed objections under Order 21 Rule 97 of the Code of Civil Procedure, claiming to be the bona-fide purchaser of the property in dispute on the basis of Sale-Deed dated 25.11.2011.
5. Precisely, two fold objections were raised viz.
(i) that decree holder obtained the decree in question in collusion with JD/respondent No. 2.
(ii) that property in dispute was not properly demarcated.
6. Objection petition was opposed by the decree holder by filing reply and on the basis of pleadings of both the parties, the following issues were framed:-
1. Whether the property of the Decree Holder is situated in Khasra No. 576? OO
2. Whether the property was not properly demarcated? OO
3. Whether the objector is bona-fide purchaser? OO
4. Relief.
7. After taking into consideration the material available on record, learned Executing Court came to the conclusion that decree was passed on 29.10.2010, whereas the appellant/objector purchased the suit property by way of registered Sale-Deed dated 25.11.2011 (Ex.O8), therefore, while applying the principle of lis pendens rejected the plea of bona-fide purchaser.
8. Learned Executing Court also considered the second point regarding the identification of the property and after relying upon the report of Local Commissioner dated 27.03.2008 (Ex.P-9) observed that suit property had been properly demarcated by the Revenue Officer during trial after inspection on the spot, which clearly indicates that house in dispute is in possession of Surjit Kaur (defendant No. 1/respondent No. 2/JD), situated in Plot No. 38. Learned Executing Court further observed that since neither objections were filed against the report of the Local Commissioner; nor any appeal has been preferred against the judgment and decree dated 29.10.2010, therefore, concluded that report of Local Commissioner cannot be challenged in the execution proceedings and ultimately, rejected the objections, vide order dated 14.11.2017.
9. Aggrieved against the above order, an appeal was preferred while repeating the similar pleas, as raised before learned Executing Court, but were rejected by learned lower Appellate Court.
10. Learned lower Appellate Court also minutely considered the submissions made on behalf of the appellant, but did not find favour while concurring with the Executing Court and dismissed the appeal, vide judgment dated 14.02.2018.
11. Hence, the present second appeal against the orders of both the Courts below.
12. Concededly
