IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-48-1998 (O&M)

Reserved on: 15.02.2025 Date of decision: 24.04.2025 HARISH CHANDER ..Appellant Versus MOHINDER KAUR AND ORS ..Respondents CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Ms. Alka Chatrath, Advocate Mr. Nikhil Singh, Advocate for the appellant.

Mr. Rajiv Godara, Advocate for respondents.

ANIL KSHETARPAL, J. 1. Brief facts:-

1.1 The defendants assail the correctness of concurrent findings of fact arrived at by the Courts below while decreeing plaintiffs’ suit for declaration that they are owners in possession in equal shares of land measuring 328/747^th share of 37 kanals and 7 marlas on the basis of two sale deeds dated 21.09.1976 and 22.11.1976 and the High Court’s order passed on 26.07.1986 on the basis of settlement is not binding on their rights.

1.2 In order to comprehend the issues involved in the present case, the relevant facts, in brief, are required to be noticed.

1.3 Sh. Pokhar Dass was owner of 37 kanals and 7 marlas land. His two sons and wife filed a civil suit on 02.03.1972 for grant of decree of declaration that they are owners in possession of the property on the basis of family settlement. Sh. Subhash Chander and Sh. Harish Chander claimed ownership in equal shares of land measuring 37 kanals and 7 marlas, whereas, Smt. Rukmani Devi, his wife claimed to be an owner in possession of land measuring 35 kanals and 4 marlas.

1.4 In the present case, the adjudication shall be made with respect to 328/747^th share of land measuring 37 kanals and 7 marlas. On the basis of written statement admitting the plaintiffs claim, the suit was decreed on 08.03.1972, which was subsequently challenged by Sh. Pokhar Dass in Civil Suit No.3029 of 1972. The suit was dismissed by the trial Court, however, in appeal by Sh. Pokhar Dass, the Appellate Court upheld the decree qua Smt. Rukmani Devi and Sh. Subhash Chander but set aside the decree dated 08.03.1972 in favour of Sh. Harish Chander qua his share. Two regular second appeals were filed, one by Sh. Pokhar Dass and second by Sh. Harish Chander. Sh. Pokhar Dass withdrew his appeal, whereas, in the appeal filed by Sh. Harish Chander, the parties entered into a settlement resulting in setting aside the First Appellate Court’s judgment while restoring the trial Court’s judgment. The decree dated 08.03.1972 was upheld. However, during the pendency of first appeal before the First Appellate Court, two sale deeds were executed by Sh. Pokhar Dass with respect to 8 kanals and 2 marla land and 12 kanals and 6 marlas land on 21.09.1976 and 22.11.1976, Sh. Mohinder Singh was already a tenant in possession of the property. Sh. Mohinder Singh died and his widow and his children filed the present suit. The defendants contested the suit on the ground that Sh. Pokhar Dass was left with no right, title or interest in the suit property after transferring the property vide decree dated 08.03.1972. Both the Courts decreed the plaintiffs suit on the ground that Section 52 of the Transfer of Property Act, 1882 (in short ‘1882 Act’), shall not be applicable because in the regular second appeal, Sh. Pokhar Dass colluded resulting in setting aside the First Appellate Court’s judgment passed on 28.08.1976.

2. Arguments addressed:-

2.1 This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook along with the scanned copy of requisitioned record.

2.2 The learned counsel for the appellant has submitted that Sh. Mohinder Singh, the vendee was in the knowledge of the pending suit as he appeared as PW-5. He submits that Section 52 of the 1882 Act would be applicable and the sale of the property shall be subject to the decision of the case. He further submitted that Section 52 of the 1882 Act protects the bonafide transferee but not the rights of a transferee, who knew about the pending litigation.

2.3 Per contra, learned counsel for respondent has submitted that the judgment pass