R.S.A. No. 4311 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No. 4311 of 2008
Date of decision:6th August, 2009
Harsarup ......Appellant
Versus
Hari Singh through is LR's
Mahender Singh and others
......Respondents
Before: HON’BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Jai Bhagwan Sharma, Advocate
for the appellant.
Rajive Bhalla, J
The appellant challenges the judgments and decrees dated
20.12.2005 and 19.10.2007, passed by the Additional Civil Judge
(Senior Division), Jhajjar and the Additional District Judge, Jhajjar,
dismissing his suit and his appeal respectively.
The plaintiff-appellant filed a suit for declaration that he is
owner in possession of the suit land as a “Dolidar”. The appellant
alleged that one Ram Singh son of Nanda Rajput, gave this land to his
grandfather as a Dholi as recorded in mutation no. 1101, dated
18.09.1906. As the appellant was in government service, he gave
this land, to one Pandit Shambhu Dayal for cultivation but to his
surprise he discovered that the respondents have got sale deeds dated
5.12.1957, executed in their favour.
Upon notice, the defendant-respondents filed a written
statement, denying the existence of a “Dholi” in favour of the
appellant’s grandfather. It was asserted that the appellant’s
forefathers mortgaged their land to Badridas son of Ganeshi Lal. The
R.S.A. No. 4311 of 2008 2
appellant’s father also mortgaged and thereafter, sold the land to
Ram Kishan who sold the land to Shambu Dayal. After the demise of
Shambu Dayal, a mutation of inheritance was sanctioned in favour of
his legal heirs Rajpal, Suraj Bal and Chander Bal, on 11.5.1950 who
sold the suit land to them by registered sale deeds.
After framing issues and calling upon the parties to lead
evidence, the trial court dismissed the suit, by holding that the
appellant had failed to prove the existence of a Dholi, his ownership
and possession as a “Dholidar” and that the revenue record does not
relate to the suit land.
Aggrieved by the aforementioned judgment and decree,
the appellant filed an appeal. Vide judgment and decree dated
19.10.2007, the Additional District Judge, Jhajjar, dismissed his appeal
and affirmed the findings recorded by the courts below.
I have heard counsel for the appellant and considered the
questions of law framed by counsel for the appellant which read as
follows:-
“1. Whether the land in dispute can be sold
with out the consent of the appellant who is in
possession as a Dholidar?
2. Whether the Assistant Collector can
change the mutation in absence of the
appellant in favour of the respondents?
3. Whether the respondents are bonafide
purchasers of the suit land?”
As held by the courts below, the appellant has failed to
prove his ownership, failed to prove that he is a Dolidar and failed to
link the land with the suit property. The first question of law would
R.S.A. No. 4311 of 2008 3
have arisen only if, the appellant had proved that he is a Dholidar.
In the absence of any evidence to hold that the appellant is or his
ancestors were Dholidars, the first question of law does not arise for
consideration. Similarly, the second question is irrelevant, as the
respondents have purchased the property pursuant to sale deeds and
therefore, the Assistant Collector was required to reflect these sale
deeds by way of relevant mutations. The last question of law, is
incomprehensible, as the respondents have purchased the suit land by
way of registered sale deed.
In view of what has been stated hereinabove, as no
substantial question of law arises for consideration, the appeal is
dismissed.
[RAJIVE BHALLA]
JUDGE
6th August, 2009
SKaushik