RSA No. 490 of 2009 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
RSA No. 490 of 2009 (O&M)
Date of Decision : 28.1.2009
Darshan Singh & another.
.......... Appellants
Versus
Kartar Singh & others.
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Vipin Mahajan, Advocate
for the appellants.
****
VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgments
and decree dated 18.12.1999 and 22.12.2008 passed by the learned Courts
below vide which suit filed by the plaintiff-respondent for declaration that
plaintiff-respondent is owner in possession to the extent of 1/3rd share of
land measuring 35 Kanals 11 Marlas, has been ordered to be decreed.
The plaintiff / respondent set up a case that he was owner in
possession of the land to the extent of 1/3rd share of land measuring 35
Kanals 11 Marlas but the name of plaintiff and defendant No.1 was illegally
not entered in the ownership column of the revenue record.
The land was originally owned by Sawan Singh. father of the
plaintiff and grandfather of defendants. Sawan Singh had three sons i.e.
plaintiff, Ram Singh and Teja Singh and defendant No. 1 was the son of
RSA No. 490 of 2009 (O&M) -2-
deceased Ram Singh whereas defendants No. 2 to 4 are sons of deceased
Teja Singh. Defendant No.1 was impleaded as a party being proforma
respondent.
The suit was opposed on the plea that plaintiff and defendant
No.1 have no right or interest in the property. The contesting defendants
were owner in possession. The plaintiff was merely licensee. It was pleaded
that defendants No. 2 to 4 have inherited the land from Teja Singh, who was
sole and absolute owner of the property.
The learned Courts below on appreciation of evidence have
recorded a concurrent finding of fact that Sawan Singh, father of the
plaintiff and grandfather of defendant No.1 owned land in Pakistan. He died
in 1947 while coming from Pakistan to India.
The allotment of land in dispute was made in lieu of the land
left by Sawan Singh in Pakistan. The allotment of land was made in favour
of Teja Singh in lieu of land left by late Sawan Singh in Pakistan. However,
each brother was in possession of 1/3rd share as owner. Defendants No. 2 to
4 claimed themselves to be owner by inheritance and asserted that plaintiff
was in possession as a licencee.
The learned Courts below on the basis of appreciation of
evidence as well as preponderance of reasoning came to the conclusion that
the land was allotted in lieu of the land left by Sawan Singh in Pakistan. The
learned Courts below rightly held that it could not be believed that each
legal representative of Sawan Singh was allotted 49 kanals 9 marlas, as was
claimed by the defendant-appellant.
RSA No. 490 of 2009 (O&M) -3-
The learned counsel for the appellant contends that the appeal
raises following substantial question of law :-
“Whether the judgment and decree is contrary to
admissions, and outcome of misreading of evidence
brought on record thus perverse ?
In support of the substantial question of law the learned counsel
for the appellant contends that the plea set up by the plaintiff in the suit was
that Sawan Singh during his life time had partitioned the land in favour of
all the brothers. This stand was found to be false and, therefore, the findings
recorded by the learned Courts below cannot be sustained.
The learned counsel for the appellant also referred to the cross-
examination of PW4, which reads as under :-
“The suit is pending for last many years. I received
notice of the suit. I have engaged plaintiff Advocate
and I have not engaged separate lawyer in the case.
I have been coming on all the dates. The land in
dispute was allotted after three years of partition.
My father had died prior to partition. The land is
allotted to us from Jalandhar. The revenue entries
are made in the manner the allotment is done. The
land which was allotted to us was divided in three
shares. The consolidation in this Village took place
about 30-35 years ago. I was not preset at the spot.
I used to come and go. The land which was allotted
was distributed between three parties equally. One
share was given to Teja Singh, one to Ram Singh
and one to Kartar Singh. It is correct that after
allotment when the ‘Parchanama’ reached Patwari
RSA No. 490 of 2009 (O&M) -4-at that point of time the division was made. The land
was 12-13 Killas. At the time of ‘Istemal’ no body
objected. I was not present at the spot. The
respondent Nos. 2 and 4 live at village Sangarpura.
These respondents were to Sangarpura immediately
after creation of Pakistan. At Miani only Kartar
Singh is living. It is correct that respondent Nos. 2
to 4 used to give land to Kartar Singh. It is wrong
that plaintiff has no ownership rights in the
disputed land. It is also wrong that I have given
false statement in the Court to help the plaintiff.”
and contends that the judgment and decree deserves to be set aside as it is
contrary to admission made that each brother was allotted separate land.
On consideration of the matter, I find no force in the contention
raised by the learned counsel for the appellant.
The stand of the plaintiff that the property was partitioned
during life time of Sawan Singh. Though, not correct but it has been proved
by documentary evidence that each party was in possession of their
respective 1/3rd share. The appellants claimed that the plaintiff was holding
the property as lincencee under them. The documentary evidence thus
shows that all equal heirs of late Sawan Singh was in possession of their
share, through land was allotted in the name of Teja Singh.
The learned Courts below on appreciation of evidence rightly
held that the land was allotted to Teja singh in lieu of land left by his father
in Pakistan. The suit land though allotted in the name of Teja Singh and not
in the name of other legal heirs but it was for benefit of others, as Teja
RSA No. 490 of 2009 (O&M) -5-
Singh had no independent claim.
Appellant can draw no benefit from cross-examination of PW4
as admission made in the cross-examination is totally false and contrary to
revenue record brought on record. PW-4 seems to have wrongly admitted,
the assertion made by defendant-appellant in cross-examination. The
defendants No. 2 to 4 were in know of the fact that total land allotted was 49
Kanal 9 Marlas and not 148 Kanal 7 Marlas, as per admission. The
appellant/ defendant failed to prove by cogent evidence that each son of
Sawan Singh was made allotment, as claimed. The admission of PW-4 thus
is contrary to documentary evidence. The defendant/ appellant can get no
benefit from it.
It cannot be said that the judgment passed by the Courts below
is outcome of misreading of evidence or contrary to admission made to term
it as perverse as claimed. The substantial question of law as claimed does
not arise.
The concurrent findings of fact recorded by the learned Courts
below cannot be interfered in the regular second appeal.
No merit.
Dismissed.
28.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE