RSA No. 4376 of 2008 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 4376 of 2008 (O&M)
Date of decision: 05.09.2009
Piara Singh
....Appellant
Versus
Khazan Singh
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. Ashish Mahajan, Advocate,
for the appellant.
*****
VINOD K. SHARMA, J (ORAL)
CM No. 7189-C of 2009
For the reasons stated in the application, C.M. is allowed and
the delay of 5 days in filing the appeal is condoned.
CM No. 7190-C of 2009
For the reasons stated in the application, order dated 30.5.2009
is recalled and the appeal is restored to its original number.
RSA No. 4376 of 2008
This regular second appeal is directed against the judgment
and decree dated 24.7.2008, passed by the learned Courts below,
dismissing the suit filed by the plaintiff/appellant for possession and
recovery of mesne profit.
The suit was filed by the plaintiff/appellant on the plea, that
the suit land was under the possession of Gulaba Singh son of Wadhawa
RSA No. 4376 of 2008 (O&M)
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Singh as panahi quadeem (occupancy tenant) The pleaded case of the
plaintiff was that Gulaba Singh had four brothers i.e. Piara Singh,
Shingara Singh, Tara Singh and Hazara Singh. Shingara Singh and
Hazara Singh were said to have died issueless, and Gulaba Singh expired
on 8.2.1997. Tara Singh also expired, therefore, it was claimed that the
plaintiff/appellant was the only legal heir to inherit the occupancy right.
It was pleaded, that the defendant had occupied the suit land forcibly and
illegally in the year 1991. In spite of requests, he neither delivered the
possession of the suit land nor paid any mesne profit from rabi 1991 till
date @ Rs.5,000/- per acre per year.
The suit was contested by the defendant/respondent by raising
preliminary objection, that suit was liable to be stayed, under Section 10
of the Code of Civil Procedure. It was also pleaded that plaintiff had no
locus standi or cause of action to file the suit. The suit was also said to
be bad for non-joining of Central Government, under whom the
defendant/respondent was in possession as tenant for more than 30 years.
The suit was also said to be time barred. The plea was also taken that the
plaintiff/appellant had concealed the material facts from the Court and
that the suit was not properly valued for the purpose of court fee. On
merit, the interest of Gulaba Singh in the suit property was denied. It
was also denied, that the plaintiff/appellant was related to Gulaba Singh
and, therefore, was not entitled to possession of the property. The
defendant also denied the pedigree table set up by the plaintiff/appellant
in the suit.
In the replication, averments made in the plaint were re-
asserted and those of written statement were denied.
RSA No. 4376 of 2008 (O&M)
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On the pleading of the parties, the learned trial Court framed
the following issues: –
“1. Whether Gulaba son of Wadhawa Singh was in
possession of the land as Panahi Qadeem? OPP.2. Whether the plaintiff is entitled for mesne profits as
prayed?3. Whether the plaintiff has got no locus-standi to file
the present suit? OPP4. Whether the suit is not maintainable in the present
form? OPD5. Whether the plaintiff has got no cause of action?
OPD
6. Whether the suit is bad for mis-joinder of Central
Government as a party? OPD.7. Whether the suit is time barred? OPD.
8. Whether the suit has not been properly valued for
the purpose of court fee and jurisdiction? OPD
8A. Whether the plaintiff is legal heir and successor-in-interest of said Gulaba and entitled for
possession of suit land? OPD
Relief.
One of the important facts noted by the learned trial court was,
that though the plaintiff had claimed that Gulaba Singh died on 8.2.1997,
but in cross-examination the appellant admitted that he had got mutation
of inheritance of Gulaba Singh sanctioned in the year 1981. The learned
Court further noticed that the documentary evidence i.e. DW5/A and the
entry in the register of deaths i.e. DW5/B showed that Gulaba Singh was
a married person. The learned trial Court also did not accept the revenue
record produced by the plaintiff/appellant, as it was contrary to the
pleadings in the plaint. The learned trial Court found, that no evidence
RSA No. 4376 of 2008 (O&M)
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and as to when he was dispossessed by the defendant. A finding of fact
was recorded that Gulaba Singh was never in possession of the suit
property.
The learned trial Court further held, that the plea of the
plaintiff/appellant that Gulaba Singh died on 8.2.1997, also stood belied,
as in the mutation sanctioned in the year 1989, name of Gulaba Singh
was not mentioned. The learned trial Court held, that the
plaintiff/appellant was not brother of Gulaba Singh, therefore, not legal
heir or successor-in-interest of Gulaba Singh.
The findings recorded by the learned trial Court had been
affirmed by the learned lower appellate Court.
The learned counsel appearing on behalf of the appellant
contends, that the appeal raises the following substantial questions of
law: –
“1. Whether in the facts and circumstances of the case,
the relationship of appellant with Gulaba Singh
(deceased) was duly proved as per requirement of
Section 50 of the Indian Evidence Act?
2. Whether the mutation confers any right, title or
interest in the property?
3. Whether the learned Courts below failed to notice
that it was for the respondent to prove his title over
the suit property, and show how he entered in the
possession of the property?
In support of the substantial questions of law, the learned
counsel for the appellant contends that the appellant examined
Lambardar of the village to prove the relationship of plaintiff/appellant
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with Gulaba Singh, which satisfied the requirement of Section 50 of the
Indian Evidence Act, therefore, the learned Courts below committed an
error in holding, that the plaintiff/appellant had failed to prove his
relationship with Gulaba Singh in non-suiting him.
The contention raised by the learned counsel for the appellant
cannot be accepted. Under Section 50 of the Indian Evidence Act, the
evidence of relation or person connected with is required to be led, to
prove the relationship by conduct. But no such evidence was led.
Furthermore, there is a positive finding, that even possession of Gulaba
Singh was not proved, thereafter merely by proving relationship, the
plaintiff/appellant could have not succeeded in the suit.
Learned counsel for the appellant further contends, that the
learned Courts below wrongly placed reliance on the mutation to deny
the relief claimed on the contention that the mutation confers no title,
therefore, was of no evidentiary value to determine the claim of the
party.
This contention is also mis-conceived. The learned Courts
below have not taken mutation to be basis but have only rejected the
evidence of the plaintiff, which was merely oral.
In support of third substantial question of law, the learned
counsel for the appellant contends, that once it was found that the
defendant/respondent was in possession of the property, it was for him to
show in what capacity he was there and how he came into possession.
This plea again is totally mis-conceived. The onus could not
be put on defendant to prove his defence on the failure of the plaintiff to
prove the case set up in the plaint. Furthermore, the
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respondent/defendant had pleaded and proved that the land was under
the ownership of Central Government and he was tenant under the
Central Government.
The substantial questions of law raised, therefore, do not arise
for consideration in this appeal, or in any case deserve to be answered
against the appellant.
No merit.
Dismissed.
(Vinod K. Sharma)
Judge
September 05, 2009
R.S.