RSA No.811 of 2005(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.811 of 2005(O&M)
Date of decision: 18.9.2008
Smt. Chandro ...... Appellant
versus
Prabhati and others .......Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
****
Present: Mr. J.P. Sharma, Advocate for the appellant.
****
Rakesh Kumar Garg, J .
CM No.960-C of 2005
For the reasons recorded in the application, delay of 20 days
in filing the appeal is condoned.
CM stands disposed of.
RSA No.811 of 2005(O&M)
1. This regular second appeal has been filed by defendant No.2
challenging the judgment and decrees of the Courts below whereby the
suit of plaintiff-respondents for permanent injunction restraining the
defendant-appellant from interfering in the possession and cultivation of the
suit land has been decreed.
2. Briefly, the case of the plaintiffs is that Sheo Lal predecessor-
in-interest of the plaintiffs and the proforma defendant No.3 was in
possession of the suit land for the last 65 years as tenant on payment of
Rs.253/- as rent per annum to be paid to the owner Fateh Lal. Since Sheo
Lal was tenant prior to 1956, so he could not be evicted from the suit land.
Later on, Nand Kishore became the owner of the suit land and he did not
RSA No.811 of 2005(O&M) 2
give notice regarding change of ownership to Sheo Lal, but in any case,
Sheo Lal became the tenant under Nand Kishore. Sheo Lal expired and
the plaintiffs and proforma defendant No.3 became tenant over the suit
land. One Girdhari son of Fateh Lal in connivance with Nand Kishore and
Patwari of the village got wrong entries in the revenue record . After getting
wrong entries in the revenue record, Girdhari Lal filed a suit for possession
and recovery in the Court of Assistant Collector 1st Grade, Narnaul which
was dismissed on 5.2.1993 and it was held that Girdhari lal had no concern
with the possession or cultivation of the suit land. Appeal against the
aforesaid order was also dismissed on 18.11.1995 by the Collector
Narnaul. Revision before the Commissioner, Gurgaon was also dismissed
on 16.1.1996. There is a decree dated 1.10.1971 in which it was held
that Sheo Lal was tenant under Nand Kishore on payment of Rs.253/- per
annum as rent. Thus, the plaintiffs and the proforma defendant No.3 being
the legal heirs of Sheo Lal were in possession of the suit land as tenant
under Nand Kishore and defendants No.1 and 2 had no concern
whatsoever with the same. They had sown the crops in the suit land and
defendants No.1 and 2 were bent upon destroying the crops and taking
the possession of the suit land forcibly. So the plaintiffs have filed this suit
seeking decree of permanent injunction for restraining defendants No.1
and 2 from interfering the possession and cultivation of the land measuring
21 bighas 17 biswas Khewat No.1677 Khatoni No.2411 and 2412, Khasra
numbers 26(5-13), 32(5-10), 56 min(7-4) and 61(3-10) situated in Tehsil
Narnaul District Mohindergarh.
3. The defendants No.1 and 2 filed their written statement and
raised preliminary objections qua maintainability, non-joinder of Nand
Kishore as a party, suppressing the material facts, locus-standi, time
barred and estoppel. On merits, the defendants No.1 and 2 pleaded in the
RSA No.811 of 2005(O&M) 3
written statement that Bholu, father of defendant No.2 (Chandro, wife of
Siri Ram) was in cultivating possession of the land measuring 10 bighas 14
biswas comprised in Khasra numbers 56(7-4) and 61(3-10) out of the suit
land. Bholu expired in the year 1980 and thereafter defendant No.2
forcibly entered into possession of the suit land and since 25.4.1980 she
was in open, hostile and continuous possession of this land as such the
possession of defendant No.2 over this land measuring 10 bighas 14
biswas has ripened into ownership by way of adverse possession. It was
denied that Sheo Lal was ever a tenant under Nand Kishore. It was also
denied that the defendants had colluded with Nand Kishore and Halqa
Patwari and got entries in the revenue record. It was also alleged that
there was entry of defendant No.2 in the khasra girdawari for the year
1984-85 and thereafter, entries in the name of the plaintiffs were got
entered illegally which were null and void. It was also alleged that neither
defendant No.2 nor her father Bholu was a party to the Civil Suit in which
decree was passed on 1.10.1971. It was also denied that Girdhari had
filed any suit for eviction against the plaintiffs and proforma defendant
No.3. Hence, the defendants prayed for dismissal of the suit.
4. After hearing learned counsel for the parties, the trial Court
vide its judgment and decree dated 5.9.2002 decreed the suit of the
plaintiffs.
5. Being aggrieved, the defendants filed an appeal before the
Lower Appellate Court. It is also relevant to mention here that during the
pendency of the appeal an application for amendment of the written
statement was filed by the defendant-appellant to take the plea that the
appellants are in possession as tenant gair marusi and they have become
owners by way of adverse possession. However, this application was
dismissed. The Lower Appellate Court vide its judgment and decree dated
RSA No.811 of 2005(O&M) 4
16.9.2004, while dismissing the appeal held that the appellants are not in
possession of any part of the suit land, nor the adverse possession had
ripened.
6. Still not satisfied with the judgment and decrees of the Courts
below, the defendant No.2-appellant has filed the instant appeal before
this Court.
7. I have heard learned counsel for the appellant.
8. The claim of the appellant is that earlier Bholu was in
possession of the land measuring 10 bighas 14 biswas and after his death,
the defendant-appellant came into forcible possession and thereafter her
possession had ripened into ownership by way of adverse possession. In
support of her case she has placed reliance on khasra girdawari EX.D2
from 1.10.1959 to 2.3.1963, Ex.D3 from 14.10.1963 to 6.3.1967, Ex.D4
from 7.10.1967 to 12.3.1970, Ex.PX/5 for the year 1994-95 and jamabandi
PX/14 for the year 1989-90. On the basis of these documents, the
appellant wanted to establish that Bolu, her father had been shown in
possession of the above said land. The arguments of the appellant that
Bholu has been shown in possession of the suit land cannot be accepted in
view of the entries in the revenue record because in these documents,
Girdhari Lal, the father of Nand Kishore had been shown as owner of the
suit land i.e land in dispute measuring 10 bighas 14 biswas whereas Sheo
Lal has been shown as tenant under Girdhari Lal and others and Bholu the
father of the defendant-appellant has been shown as sub-tenant under
Sheo Lal.
9. On the other hand, in the revenue record Exs.D5 to D7 Nand
Kishore is shown as owner of the land measuring 10 bighas 14 biswas
while Girdhari Lal has been shown as tenant without payment of any rent.
In these documents, Sheo Lal has been shown as tenant and Bholu has
RSA No.811 of 2005(O&M) 5
been shown as sub-tenant. The argument of the learned counsel for the
appellant that Bholu has been shown as tenant over the suit land cannot
be accepted in view of the entries mentioned in the jamabandies and
khasra girdawaries. Moreover, these documents cannot be looked into
because they are beyond pleadings of the defendants. It is also relevant to
mention that Nand Kishore had filed an ejectment application which was
decided on 19.12.1982 (Ex.DW2/A) titled as Nand Kishore v. Girdhari Lal
etc. In this application, it is mentioned that Sheo Lal was a tenant while
Bholu was sub-tenant. Siri Ram-defendant filed an application Ex.PW3/A
in which he mentioned that since Bholu had expired, he should be
impleaded as party in place of Bholu. The written statement of Sheo Lal
and Bholu is mark DA on record of the ejectment application in which it has
been admitted that Sheo Lal was in possession of the land in dispute as
tenant gair marusi. It is also mentioned in this written statement that Bholu
was brother of Sheo Lal and Bholu used to help Sheo Lal in cultivating the
suit land. Thus, there is a clear admission on the part of Bholu Ram and
Siri Ram himself has admitted that Sheo Lal was in possession of the suit
land. Then after his death entering into possession by his daughter does
not arise at all. The said application of Siri Ram was dismissed. The Lower
Appellate Court has also recorded a finding of fact that in Civil Suit titled
Suresh Chand etc. v. Sohan Lal, the copy of which is Ex.PX/6, the suit of
the plaintiff was dismissed vide judgment and decree dated 1.10.1971
declaring Sheo Lal as exclusive tenant over the whole suit land and holding
that Girdhari Lal has no concern with respect to the possession and
tenancy of the said land. Thus, from a bare perusal of plaint Ex.PW2/A,
written statement mark DA and judgement Ex.PX/6, it is apparently
established that only Sheo Lal was tenant of whole suit land measuring 21
bighas 17 biswas since 1940 and Girdhari Lal and Bholu had got no
RSA No.811 of 2005(O&M) 6
concern with it either as tenant or otherwise. Another fact has also been
proved on record that vide judgment and decree dated 27.4.1987 Ex.PX/1
passed in Civil Suit No.442 of 1981, the plaintiff was again declared as an
exclusive tenant of the whole suit land and restraining owner and Girdhari
Lal not to interfere in possession. Thereafter, the appeal filed against the
said judgment was dismissed vide judgment Ex.PX/2 on 13.11.1991
holding that the plaintiffs and proforma respondent No.3 in the suit were
direct tenant under Nand Kishore. The objection of the learned counsel for
the appellant that the document mark DA, is not admissible into evidence is
without any substance as the written statement mark DA was tendered by
the defendants themselves in their evidence treating it as genuine and duly
executed documents. Thus, they cannot raise an objection with respect to
the admissibility of this document. Moreover, this document is 30 years old
document and has come from the Court record and has been produced by
the appellant i.e daughter of one of the executants Bholu and the same is
admissible as per Section 90 of Indian evidence Act.
10. The objection regarding that all the judgments mentioned
above, neither Bholu nor the defendant-appellant were party in these
judgments and they do not bind them. This objection of the learned
counsel for the defendant-appellant is also not acceptable. Bholu himself
admitted in para No.16 of his written statement mark DA that judgment
dated 1.10.1971 Ex.PX/6 was final between the parties including Bholu.
So, Bholu himself and defendant Smt. Chandro being his daughter has
claimed right through him are also bound by it. Further, all other judgments
mentioned above have been passed upon judgement dated 1.10.1971
Ex.PX/6, so these documents are also binding upon them as it has been
so held in Tirumala Tirupati Dvasthanams v. K.M.Krishnaiah 1998(1)
SLJ 932(S.C.). It is observed that even judgment between their party is
RSA No.811 of 2005(O&M) 7
admissible under Section 13 of Indian Evidence Act.
11. The plea of adverse possession to defendant No.2 is also not
available because the possession for a period of 12 years could not be
estalished. Ex.D8 and Ex.D9 reveals that the possession of the appellant
Smt. Chandro has been shown from 1980-85 i.e. only five years and that
too as sub-tenant under plaintiff-respondents. So, the question of
declaring her as owner on account of adverse possession does not arise.
The authority cited by the learned counsel for the defendants i.e. Asa
Singh and another v. Mansha Ram another AIR 1930 Lahore 237 is not
applicable to the facts of the present case because the facts of the present
case are totally different. So, this ruling does not help the defendant-
appellant in any manner. Therefore, defendants No.1 and 2 are not in
possession of any part of the suit land i.e land in dispute measuring10
bighas 14 biswas nor the adverse possession of the appellant had ripened
into ownership.
12. Thus, no fault can be found with the findings of fact recorded
by the Courts below. No substantial question of law arises in the present
appeal.
13. No merit. Dismissed.
September 18, 2008 (RAKESH KUMAR GARG) ps JUDGE