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Judgment
Kuldip Singh, J.—This appeal has been directed against judgment, decree dated 11.10.2002 passed by learned District Judge, Bilaspur in Civil Appeal no. 98 of 1993 affirming judgment, decree dated 14.10.1993 passed by learned Sub Judge Ist Class, Bilaspur camp at Ghumarwin in Case no. 184-1 of 1992/87. The facts in brief are that appellants had filed a suit against Jodh Singh for declaration that they have charge of maintenance over the land measuring 3 bighas, comprised in khasra no. 350/205, situated in village Jajjar, Pargana Gehrwin with consequential relief of permanent prohibitory injunction restraining Jodh Singh from transferring suit land. The plaint was amended. It has been alleged that the suit land was not self acquired property of Jodh Singh but was purchased by father of Kashmiri Devi in the name of Jodh Singh. The appellants are the heirs of Jodh Singh who had not maintained the appellants. The appellants had right to get maintenance from Jodh Singh. Jodh Singh was a drunkard person. The appellants are in possession of the suit land. The suit land was purchased by the father of appellant no. 1 by paying Rs. 3,000/- to Smt. Surju, a gift deed was prepared instead of sale deed in order to save the land from pre-emption. Jodh Singh had no right to sell the suit land. Jodh Singh had sufficient income.
Jodh Singh had sold the land measuring 4 biswas comprised in Khasra No,.350/205/1 out of the suit land to Rajender Kumar respondent no. 1 during the pendency of the suit. Jodh Singh had no right, title and interest to sell the suit land. The sale deed dated 20.4.1989 is null and void and is liable to be set aside. In the amended plaint, prayer for declaration that the sale deed dated 20.4.1989 is null and avoid was also made. The consequential relief of injunction was also made.
The suit was contested by Jodh Singh by filing a written statement. He took several preliminary objections such as maintainability, valuation, jurisdiction, locus standi, estoppel. He pleaded that land was his self acquired property on the basis of gift deed dated 1.9.1973 made by Smt. Dhero and Smt. Surju. The preliminary objections of non-joinder of necessary parties and that appellant no. 3 Sulender was a driver and appellant no. 4 was serving in police were also taken, who have sufficient income. There is no question of charge of maintenance. The suit is not maintainable. On merits, the claim of the appellants was denied. It has been pleaded that Jodh Singh had every right, title and interest to transfer or alienate his own land. He prayed for dismissal of the suit.
Rajender Kumar respondent no. 1 filed separate written statement and he took preliminary objections of maintainability, jurisdiction, estoppel, limitation. On merits, the stand of the appellants was denied. He has stated that Jodh Singh had sold the land to him. The prayer was made for dismissing the suit. The appellants filed replications to the written statements.
On the pleadings of the parties, the following issued were framed:-
Whether the plaintiffs have maintenance charge over the suit land as alleged? OPP
Whether the plaintiffs are entitled to a decree for permanent injunction? OPP
Whether the sale deed dated 12.4.1989 executed by defendant no. 1 in favour of defendant no. 2 is null and void and is liable to be set aside? OPP
Whether the suit land was purchased by the father of the plaintiff no. 1 in the name of defendant through gift deed as alleged? OPP
Whether the suit has been valued property for the purpose of court fee and jurisdiction ? OPD
Whether the suit is not maintainable ? OPD
Whether this court has no jurisdiction to hear and decide the suit? OPD
Whether the plaintiff has no locus standi to file the present suit ? OPD
Whether the plaintiff is estopped to file the present suit by their acts, conduct, omissions and commissions? OPD
Whether the suit is time barred? OPD
Relief
Issues no. 1 to 4, 7 to 10 were answered in negatives, issue no. 5 in affirmative and issue no. 6 was also answered against the appellants. The suit was dismissed on 14.10.1993. In appeal learned District Judge on 11.10.2002 affirmed the judgment dated 14.10.1993. The second appeal has been admitted on following substantial question of law:-
Whether the land measuring 4 biswas out of the suit land measuring 3 bighas could be alienated by way sale by Shri Jodh Singh (Since deceased) in favour of respondent Shri Rajender Kumar on 20.4.1989 when the parties had agreed to maintain status quo over the suit land on 3.2.1989?
I have heard Mr. Surinder Sharma, Advocate appearing vice counsel to learned Counsel for the appellants and have also gone through the record. Mr. Sharma has submitted that on 3.2.1989 in the application under Order 39 Rules 1 and 2 CPC when the matter was pending in the trial Court the parties agreed to maintain status quo over the suit land till the disposal of the main suit. The statements of the parties were recorded and the application was disposed of accordingly. However, Jodh Singh on 20.4.1989 sold a part of the suit land to respondent no. 1 in violation of order dated 3.2.1989 and therefore, the sale of part of the suit land made by Joginder Singh in favour of respondent no. 1 is null and void. He has submitted acceptance of the appeal on this ground alone.
There is no whisper in the plaint that sale deed dated 20.4.1989 is void as Jodh Singh sold part of the suit land to respondent no. 1 in violation of order dated 3.2.1989. Jodh Sindh died during the pendency of litigation. The respondent no. 1 was impleaded as party in the suit on the application of appellants by the trial Court on 24.5.1990. On the date of passing of interim order dated 3.2.1989 respondent no. 1 was not party in the suit. There is no averment in the plaint that respondent no. 1 was aware of the order dated 3.2.1989. In any case, the sale deed dated 20.4.1989 has not been assailed on the ground that the said sale deed is wrong, illegal as Jodh Singh had executed the sale deed in favour of respondent no. 1 in violation of interim order dated 3.2.1989. Once there is no challenge to the sale deed dated 20.4.1989 on the ground that it is in violation of interim order dated 3.2.1989, in these circumstances, the substantial question of law referred above does not emerge from the case projected by the appellants. There is no merit in the appeal. The substantial question of law noticed above is decided against the appellants.
No other point was urged. The result of above discussion, appeal fails and is accordingly dismissed.