- (1.) This is plaintiffs' second appeal against the judgment and decree of the first appellate court reversing the order of the trial Court, whereby suit of the plaintiffs was decreed in respect of Plot No. 118 measuring 222 sq. yards comprised in Khasra No. 18/2 situate in Tafazalpura, Tehsil and District Patiala.
(2.) In brief, the facts are that predecessors-in-interest of the plaintiff, vide registered sale-deed dated 12.2.1970, purchased plot No. 118 measuring 222 sq. yards carved out of Khasra No. 18/2 from Bhagat Singh son of Kharak Singh through his central attorney Ajit Singh son of Gurbax Singh (vendor of defendant Nos. 1 and 2). Plaintiff alleged that possession of the plot was delivered pursuant to the sale. It is further stated that Gurbux Singh son of Bhagat Singh sold the plot of land comprising Khasra No. 18/2 to defendant Nos. 1 and 2 (respondent Nos. 1 to 6 successors-in-interest of Sham Lal, defendant) vide registered sale-deed dated 5.11.1979. Defendants had taken possession of the land in dispute since it was lying vacant, and had constructed a boundary wall on the existing foundation which was filed by Babu Singh, predecessor-in-interest of the plaintiffs in 1971. Defendant Nos. 1 and 2 denied the allegations made in the plaint and stated that Bhagat Singh was not the owner of the plot in dispute and the alleged sale-deed in favour of predecessor-in-interest of the plaintiffs was a Sham transaction, and they validly purchased the plot which was carved up of Khasra No. 18/3/2 from Gurbax Singh son of Bhagat Singh for Rs. 15,000/- and possession of the land was given by the vendor. Defendant Nos. 1 and 2 had spent Rs. 2,000/- and Rs. 6,000/- respectively on the improvements made. Gurbax Singh, vendor, who was defendant No. 9 in the suit, filed written statement taking of same stand as taken by defendant Nos. 1 and 2, and pleaded that he sold plot measuring 229 sq. yards falling in Khasra No. 18/3/2 to defendant Nos. 1 and 2 vide sale-deed dated 5.11.1979, for a consideration of Rs. 15,000/- and put them in possession of the same. On the pleadings of the parties, the following issues were framed :- 1. Whether the plaintiffs purchased the plot in dispute from Bhagat Singh vide registered sale-deed dated 12.2.1970 and entered into its possession ? OPP. 2 Whether Bhagat Singh had a transferable interest in the plot in dispute ? OPP 3. Whether the sale-deed was simply paper transaction as alleged by defendant Nos. 1 and 2 ? If so, to what effect ? 4. Whether the sale-deed executed by Gurbux Singh in favour of defendant Nos. 1 & 2 is illegal and void ? OPP 5. Whether the suit is within limitation ? OPP. 6. Whether the suit is properly valued for the purposes of Court-fee and jurisdiction ? OPP. 7. Whether the suit is not maintainable in the present form ? OPP, 8. Whether defendant Nos. 1 & 2 are bona fide purchasers for consideration without any notice of fact entitled on the plot in dispute ? OPP. 9. Whether defendant No. 1 has spent Rs. 2,000/- and defendant No. 2 has spent Rs. 6,000/- on the improvement in the disputed property ? If so, to what effect ? OPP. 10. Whether the defendant Nos. 1 and 2 have become the owners of the plot in dispute by adverse possession ? OPP. 11 Relief.
(3.) The contesting defendants challenged the judgment and decree of the trial Judge in first appeal before the District Judge, Patiala, which was entrusted to Sh. S.S. Chahal, Additional District Judge, Patiala. As the controversy between the parties involved demarcation of Khasra No. 18/2 and Khasra No. 18/3/2, the first appellate Court vide its order dated 29.11.1986 appointed Sh. Hardhan Singh, Kanungo Circle Dakala as Local Commissioner to inspect the spot and after measurement, give a report whether the plot in dispute formed part of Khasra No. 18/2. Later, appointment of Hardhan Singh was cancelled and in his place, B.S. Grewal Naib Tehsildar, Patran, was appointed as Local Commissioner for measurement of the site. The Local Commissioner submitted his report on 8.5.1987. Defendant No. 1 filed objections to the Local Commissioner's report. The first appellate Court did not find any merit in the objections of defendant No. 1 and, therefore, dismissed the appeal. Defendants preferred second appeal a challenge was made to the report of the Local Commissioner. G.R. Majithja, J. decided the appeal and set aside the report of the Local Commissioner by observing as under :- "Under these circumstances, it would have been apt for the appellate Judge to examine the Local Commissioner with regard to the matter touching his report to elicit the truth. The appellate Judge disposed of the appeal in almost perfunctory manner. The report of the Local Commissioner is set aside in view of the allegations made in the application dated April 29, 1987 and the objections to the report of the Local Commissioner. Since the only point in dispute relates to the demarcation of the plot in dispute and which can only be decided on the basis of the report of the Local Commissioner who has to carry out the demarcation in accordance with the instructions as contained in the Punjab and Haryana High Court Rules and Orders, Volume-I, referred to in the earlier part of this judgment, I am left with no other alternative but to set aside the judgment and decree of the first appellate Court and to remit the case to the District Judge, Patiala. He shall appoint a responsible revenue officer/official as Local Commissioner, whose impartiality is beyond doubt, to demarcate the site in dispute and on receipt of the report permit the parties to take such objections, if any, to the report of the Local Commissioner. Thereafter, he shall decide the appeal on merits afresh within six months from the date of receipt of a copy of this judgment.";