Punjab-Haryana High CourtSonia Sachdeva @ Bharti Sachdeva vs Saroj Bala @ Sudesh Kumari And Others on 7 May, 2018Author:Amit RawalBench:Amit RawalRSA No.307 of 2013 (O&M)                                    {1}


            IN THE HIGH COURT OF PUNJAB & HARYANA
                       AT CHANDIGARH


                                          RSA No.307 of 2013 (O&M)
                                          Date of decision:07.05.2018

Sonia Sachdeva @ Bharti Sachdeva                      ... Appellant


                           Vs.


Saroj Bala @ Sudesh Kumari and others                 ... Respondents

CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

Present:-    Mr. K.S.Chahal, Advocate
             for the appellant.

             Mr. Jagdish Manchanda, Advocate
             for respondents No.1 and 2.

             Mr. Amit Sharma, Advocate
             for respondent No.3.

AMIT RAWAL J. (Oral)The appellant-plaintiff is aggrieved of the concurrent findings

of facts and law, whereby, suit claiming declaration that she was owner in

possession of suit property mentioned as serial numbers (a), (b) and (c) of

head note of plaint to the extent of 1/3rd share; with a further prayer for

separate possession by way of partition of 1/3rd share out of suit properties,

has been dismissed by the trial Court and upheld by the Lower Appellate

Court.The suit was contested by defendants No.1 and 2 on the

premise that suit was not maintainable as it was barred by law under Order 2




                                 1 of 8::: Downloaded on - 19-05-2018 23:26:20 :::RSA No.307 of 2013 (O&M)                                  {2}Rule 2 CPCread withSection 11CPC and also under Order 23 Rule 1(4)CPC, for, similarly, the suit filed against defendants was dismissed as

withdrawn. The plaintiff had not come to the Court with clean hands. The

plaintiff has no concern with the family and property of Murari Lal as she

was adopted by Brij Lal.Defendant No.3 has also filed separate written statement stating

therein that she has purchased house no.13, Adarsh Nagar, Balongi

comprised in customer no.16//2(8-0) measuring 0 kanal 5 marlas from

defendants no.1 and 2, vide sale deed dated 04.06.2003.Since the parties were at variance, the trial Court framed the

following issues including the additional issue:-"1.    Whether plaintiff is entitled to declaration as prayed for?

            OPP2.     Whether the plaintiff is entitled to permanent injunction

            as prayed for? OPP3.     Whether the suit is not maintainable? OPD4.     Whether the suit is time barred as alleged in a written

            statement? OPD5.     Relief.Additional issue

            1-A    Whether the GPA dated 14.6.2001 and sale deed on the

            basis of the GPA in favour of defendant no.3 is null and void

            and is liable to be set aside? OPP"2 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                                  {3}


            The appellant-plaintiff examined Radhey Sham as PW1, Rajpal

Sharma as PW1/A, Krishna Devi as PW1/A, Sunil Pandit as PW3 and

plaintiff Sonia Sachdeva herself as PW4 and brought on record the

documentary evidence, i.e., Ex.P1, Ex.P2 and Ex.PW2/A.

            On the other hand, defendants examined Kamlesh Kumar as

DW1, Sudesh Sachdeva as DW2, Pankaj Sachdeva as DW3 and brought on

record the documentary evidence, i.e., from Ex.D1 to Ex.D25.The trial Court on the basis of evidence dismissed the suit on

the premise that plaintiff failed to prove on record that Murari Lal was

owner of the property and so was the findings of the Lower Appellate Court.Mr. K.S.Chahal, learned counsel for the appellant-plaintiff

submits that there was a categoric admission of defendant no.2-Pankaj

Sachdeva, in the cross-examination, that property was owned by father of

Murari Lal and on his demise, the property was inherited by defendants

No.1 and 2. No explanation has come on record as to why the name of

appellant-plaintiff, i.e., daughter has not been mentioned, for, finding with

regard to adoption of the plaintiff by Brij Lal has been rendered against the

defendants. As regards the other property, the plaintiff had not been able to

prove the ownership by staking any claim. The sale deed had been executed

during the pendency of the suit in favour of defendant No.3 on 14.06.2001,

whereas, the suit was filed on 19.07.2000, therefore, it was hit by doctrine

akin to lis pendence and thus, urges this Court for setting aside the

judgments and decrees under challenge.3 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                                   {4}Mr. Jagdish Manchanda, learned counsel appearing on behalf

of respondents No.1 and 2 submits that in the absence of challenge to the

findings rendered by the Courts below regarding adoption, the respondents

can always take the aid ofOrder 41 Rule 33 CPC, for, the defendants

proved on record the adoption of plaintiff by Brij Lal. There is no illegality

and perversity in the impugned judgments and decrees under challenge, for,

the plaintiff had lost the right in the aforementioned property since birth.Similar arguments have been adopted by Mr. Amit Sharma,

learned counsel for respondent No.3.I have heard the learned counsel for the parties, appraised the

judgments and decrees of the Courts below and of the view that there is

force and merit in the submissions of Mr. Chahal vis-a-vis stake of 1/3rd

share in the aforementioned property.The Court is hereby called upon to decide the question with

regard to declaration of granting status of 1/3rd share in the property

belonging to Murari Lal. It would be apt to reproduce the cross-examination

of Pankaj Sachdeva which reads as under:-"My father owned property in village Balongi and Punchkula.

             The house at Balongi has been sold by us for a sum of

             Rs.60,000/- about 2-3 years back. I do not remember the name

             of vendee. Myself and my mother had sold that house. It was

             mutated in our name after the death of my father was stop the

             mutation was sanctioned in our name after 2-3 years from the

             death of my father. My father did not execute any Will in my4 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                                  {5}


            favour. I do not know if any document was executed in the

            name of my mother will stop the mutation was sanctioned in

            the name of my mother and myself. It was sanctioned on the

            basis of natural succession. This mutation was got entered by

            me. Sonia (plaintiff) was not called at the time as she was not

            required. We have not told the Patwari that Sony was also my

            sister, because she is not my sister are all. I did not disclose

            the Halqa Patwari that the suit qua that property is pending in

            the Court and similarly nothing was disclosed to AC 2nd Grade

            at the time of sanctioning of mutation.He further stated 'my father was allotted the flat by the

            society in respect of which my father was a member. Name of

            society is Youngman Colony Group Housing Society Ltd.

            Sector 20 Panchkula'."From the perusal of aforementioned cross-examination of

Pankaj Sachdeva, it has come on record that property situated at Balongi

was in the name of Murari Lal and on his demise, mutation in question was

mutated in the name of Pankaj Sachdeva and his mother. No explanation

had come on record as to why plaintiff-Sonia Sachdeva had not been given

1/3rd share being Class-I heir of Murari Lal, for, finding with regard to

adoption of the plaintiff by Brij Lal had been rendered against the

defendants. The defendants cannot be permitted to raise a plea underOrder

41 Rule 33 CPCas no evidence has been placed on record enabling this

Court to form a different opinion than the one arrive at by the Courts below.5 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                                   {6}In my view, the Courts below have abdicated in not referring to

cross-examination of Pankaj Sachdeva as the admission need not be

supported by any other evidence, for, the plaintiff, in my view, has

discharged the onus by ascertaining the truth in cross-examination of

defendant no.2, thus, there is abdication and perversity in the findings under

challenge.No doubt, this Court, on earlier occasions had been framing the

substantial questions of law while deciding the appeals but in view of the

ratio decidendi culled out by five learned Judges of the Hon'ble Supreme

Court in Pankajakshi (dead) through LRs and others Vs. Chandrika and

others AIR 2016 SC 1213, wherein the proposition arose as to whether in

view of the provisions ofSection 97(1)CPC, provisions ofSection 41of

the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be

filed underSection 100of Code of Civil Procedure and decision thereof

could be without framing             the substantial questions of law.The

Constitutional Bench of Hon'ble Supreme Court held that the decision inKulwant Kaur and others Vs. Gurdial Singh Mann(dead) by LRs and

others 2001(4) SCC 262 on applicability ofSection 97(1)of CPC is not a

correct law, in essence, the provisions ofSection 41of the Punjab Courts

Act, 1918 had been restored back.For the sake of brevity, the relevant portion of the judgment of

five learned Judges of the Hon'ble Supreme Court in Pankajakshi 's case

(supra) reads thus:-"Since Section 41 of the Punjab Act is expressly in6 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                               {7}


                       conflict with the amending law, viz., Section 100
                       as amended, it would be deemed to have been
                       repealed. Thus we have no hesitation to hold that
                       the law declared by the Full Bench of the High
                       Court in the case of Ganpat [AIR 1978 P&H 137 :80 Punj LR 1 (FB)] cannot be sustained and is
                       thus overruled." [at paras 27 - 29]""27. Even the reference toArticle 254of the Constitution was

          not correctly made by this Court in the said decision.Section

          41of the Punjab Courts Act is of 1918 vintage. Obviously,

          therefore, it is not a law made by the Legislature of a State

          after the Constitution of India has come into force. It is a law

          made by a Provincial Legislature underSection 80Aof the

          Government of India Act, 1915, which law was continued,

          being a law in force in British India, immediately before the

          commencement of theGovernment of India Act, 1935, by

          Section 292 thereof. In turn, after the Constitution of India

          came into force and, byArticle 395, repealed theGovernment

          of India Act, 1935, thePunjab Courts Actwas continued being

          a law in force in the territory of India immediately before the

          commencement of the Constitution of India by virtue ofArticle

          372(1)of the Constitution of India. This being the case, Article

          254 of the Constitution of India would have no application to

          such a law for the simple reason that it is not a law made by

          the Legislature of a State but is an existing law continued by7 of 8::: Downloaded on - 19-05-2018 23:26:21 :::RSA No.307 of 2013 (O&M)                                   {8}


             virtue ofArticle 372of the Constitution of India. If at all, it isArticle 372(1)alone that would apply to such law which is to

             continue in force until altered or repealed or amended by a

             competent Legislature or other competent authority. We have

             already found that sinceSection 97(1)of the Code of Civil

             Procedure (Amendment) Act, 1976 has no application toSection 41of the Punjab Courts Act, it would necessarily

             continue as a law in force."Therefore, I do not intend to frame the substantial questions of

law while deciding the appeal aforementioned.In view of the aforementioned observations, judgments and

decrees of the trial Court and lower Appellate Court are modified to the

extent that plaintiff is accorded declaration of 1/3rd share in the property

aforementioned. The revenue officer is directed to get the mutation affected

in the name of plaintiff, defendants No.1 and 2 to the extent of 1/3rd share.

Liberty is granted to the appellant-plaintiff to seek partition of the property,

in accordance with law. The plea of bonafide purchaser is also declined, for,

the property has been purchased during the pendency of the suit.

Respondent No.3 is also at liberty to buy 1/3rd share in the property.Accordingly, the appeal stands allowed.(AMIT RAWAL)
                                                   JUDGE
May 07, 2018
savita
Whether Speaking/Reasoned                            Yes/No
Whether Reportable                                   Yes/No




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