RSA No.1162 of 1992 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1162 of 1992
Date of Decision: 9.3.2009
Nand Singh alias Naranjan Singh ..Appellant
Vs.
Natha Ram (dead through L.Rs.) ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.A.K.Chopra, Sr. Advocate, with
Mr.Rajnish Chauhan, Advocate,
for the appellant.
Mr.S.K.Singla, Advocate,
for the respondents.
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1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
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Vinod K.Sharma,J. (Oral)
Plaintiff/Appellant brought a suit for declaration that the
plaintiff is in possession of 11 kanals 4 marlas of land as owner with
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consequential relief of permanent injunction restraining the defendant from
dispossessing him from the suit land or from alienating the same.
It was claimed by the plaintiff/appellant that he was owner in
possession of the suit land and has been sowing different crops, the
defendant/respondent was threatening to dispossess the plaintiff from the
land in dispute and also wanted to alienate the same though he has no such
right. The plaintiff claimed that on inquiry it was revealed that the defendant
purchased the suit land from the plaintiff and mutation stood sanctioned in
his favour. Plaintiff also claimed that if any sale deed is proved the same is
the result of fraud and misrepresentation, undue influence and, therefore,
not binding on him. The plaintiff claimed that the defendant had already
filed a suit in the court of Sub Judge, Nakodar on the basis of alleged
fictitious sale deed which was dismissed on 29.11.1966 and the appeal filed
by the defendant was dismissed by the learned Additional District Judge,
Jalandhar on 27.1.1970. It was also claimed that in the suit filed by the
defendant-respondent it was held that the plaintiff was not the owner of the
suit land nor was in possession of the same.
On notice the defendant appeared and filed written statement
controverting the material facts and stated that the plaintiff was neither
owner nor in possession of the suit land and therefore, the suit was not
maintainable. The land in suit was said to be owned by the defendant and
one Lachhu who has been in possession of the land in dispute as a tenant
under the defendant. It was also pleaded that the plaintiff/appellant is
estopped from filing the present suit against the defendant. Locus standi of
the plaintiff to maintain the suit was also challenged. It was also claimed
RSA No.1162 of 1992 3
that the claim of the defendant was not barred by principle of res judicata
because the mistake was of the consolidation authorities which has been
later on rectified.
On the pleadings of the parties learned trial court was pleased
to frame the following issues:-
1. Whether the plaintiff is owner of the land? OPP
2. Whether the land is in possession of Lachhu as tenant
under the plaintiff? OPD
3. Whether the defendant has purchased the suit land from
the plaintiff? OPD
4. Relief.
Issues No.1 to 3 were taken up together, wherein learned trial
court was pleased to hold that the stand taken by the plaintiff/appellant was
that he is owner of the suit land and is in possession of the same. It was also
held that he has not sold the suit land to the defendant. In support thereof
reliance was placed on the copy of Jamabandi Ex.P.1 in which the plaintiff
was shown to be owner in possession of the suit land. Learned trial court
however, observed that in the Jamabandi there is a red entry regarding the
sale by the plaintiff to the defendant of Khasra No.50/20/2 (1-14) and
56/3/2(3-12) and 4/1 (1-10). Copy of judgment passed by Shri R.L.Garg,
Additional District Judge was also placed on record showing the dismissal
of appeal. In the said appeal findings were against the
defendant/respondent, regarding the sale of land qua two numbers.
The defendant/respondent had taken a stand that he is owner in
possession of the suit land in pursuance to the purchase. Learned trial court,
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therefore, on the the basis of evidence brought on record was pleased to
record the following findings:-
” I have compared the khasra numbers given in the decree
sheet. Ex.P.8 with that of suit land. These khasra numbers does
not tally with the khasra numbers given in the suit land. The
khasra numbers given in decree sheet Ex.P.8 are number as
given of 50/25 (6-2), 21(7-12) and 22 (8-11). The evidence of
the plaintiff specially revenue record i.e. jamabandies relied
upon by the plaintiff itself goes against the plaintiff. The
plaintiff as per jamabandies is only proved to be the owner of
4-8 malras out of khasra No.50/20. As regarding possession
over the suit land I find that khasra girdawari Ex.P.3, P.4 and
P.10 shows that plaintiff is in possession of suit land through
Lachhu. There is no other document to show possession of the
defendant over the suit land. Therefore, from the evidence I
hold this issue accordingly declaring plaintiff as owner of 4k -8
mls out of khasra No.50//20 (6-2) only out of suit land and
plaintiff is proved in possession of suit land through Lachhu. I
hold these issues accordingly.”
Thus, in view of the findings recorded above the suit of the
plaintiff for declaration was decreed qua 4 kanals 8 marlas of land out of
Khasra No. 50//20 (6-2); for remaining land injunction was granted in
favour of plaintiff/appellant.
In the appeal judgment and decree passed by the learned trial
court stands affirmed.
RSA No.1162 of 1992 5
Learned senior counsel for the appellant raised the following
substantial questions of law for consideration in this appeal:
1. Whether the judgment and decree passed by the learned
courts below are the outcome of misreading of
documents Ex.P.1 and P.2 and the statement of Patwari
who appeared as DW 1 in support of the entry in the
remarks column?
2. Whether the entries in the remarks column in the absence
of sale deed are liable to be ignored?
3. Whether the defendant/respondent has failed to prove the
alleged sale deed in his favour by leading cogent
evidence?
In support of the substantial questions of law learned senior
counsel appearing on behalf of the appellant contends that the judgments
and decree of the learned courts below vide which relief of declaration qua
6 kanals 6 marlas of land has been declined to the plaintiff/appellant cannot
be sustained as the findings are the outcome of misreading of document
Exs.P.1 and P.2 on record.
The contention of the learned senior counsel is that Exs.P.1
and P.2 i.e. Jamabandis clearly show that the plaintiff/appellant was owner
in possession of the suit land and that red ink entry which is the basis for
non-suiting the plaintiff/appellant was not supported by DW 1 while
appearing in the witness box.
Learned senior counsel contends that DW 1 admitted that while
making red entry qua the sale deed the defendant/ respondent had not
RSA No.1162 of 1992 6
produced any sale deed nor any sale deed was on record.
However, on consideration of the matter, I find no force in the
contentions raised by the learned senior counsel.
Exs. P.1 and P.2 are the documents on the basis of which the
plaintiff sought to be declared as owner in possession of the property in
dispute. In the suit he nowhere challenged the entries made in red ink in
the jamabandis i.e. the very basis of suit.
Furthermore, in the present case it may be noticed that there
was a dispute inter se between the parties prior to the filing of the suit
which was filed by the defendant/respondent in which he had claimed
possession on the basis of sale deed. Though the defendant/respondent had
failed in the said suit for want of connecting the land in dispute with the
sale deed, however, sale deed was upheld, which showed that plaintiff had
sold land in favour of defendant/respondent.
It is also not in dispute that mutation was sanctioned in favour
of the defendant-respondent which was produced on record as Ex.D.2 and
appeal filed by the plaintiff/appellant against the said decision also failed.
The plaintiff for the reasons best known to him chose not to
challenge the orders passed by the revenue courts and filed suit for
declaration on the basis of ownership by ignoring the revenue record.
The contention of the learned senior counsel that remarks in
the column were liable to be ignored for want of evidence in support thereof
also cannot be sustained – firstly for the reason that Ex.P.7 was produced by
the plaintiff/appellant himself i.e. the previous judgment inter se between
the parties wherein it was shown that part of the land was sold by the
RSA No.1162 of 1992 7
plaintiff/appellant in favour of the defendant-respondent and red ink entries
in the Jamabandi further find support from mutation Ex.D.2 brought on
record.
Therefore, no error can be found with the orders passed by the
learned courts below holding that the plaintiff has failed to prove his
ownership qua 6 kanals 6 marals of land qua which red ink entry was made
in the revenue record.
The plaintiff was to stand on his own legs and merely because
the defendant/respondent had failed to produce the sale deed on record or
to prove the same, cannot be a ground to decree the suit in favour of the
plaintiff in view of the judgment Ex.P.7 on record. The learned courts
below, thus, in the facts and circumstances of the case rightly granted
injunction in favour of the plaintiff qua the whole land by declaring him to
be owner of 4 kanals 8 marlas of land qua which there was evidence of
ownership.
The substantial questions of law are answered against the
appellant/plaintiff and in favour of the defendant/respondent.
The appeal is, consequently, ordered to be dismissed but with
no order as to costs.
9.03.2009 (Vinod K.Sharma) rp Judge