R.S.A. No.2902 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
****
R.S.A. No.2902 of 2007
Date of Decision:16.12.2008
Rajinder Singh and others
.....Appellants
Vs.
Ram Avtar alias Hem Chand and others
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Sandeep Sharma, Advocate for the appellants.
Mr. P.R. Yadav, Advocate for respondents No.1 to 8.
****
JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ decree dated
7.3.2007 passed by the Court of learned District Judge, Gurgaon, whereby
he dismissed the appeal preferred against the judgment/ decree dated
20.9.2006 vide which the Court of learned Civil Judge (Junior Division),
Gurgaon decreed the suit for sanctioning the mutation in favour of the
plaintiffs in terms of judgment and decree dated 10.3.1980 passed in case
titled as Ram Avtar and others v. Shiv Lal in Civil Suit No.460 of 1.9.1978
and for recording the names of the plaintiffs as co-sharers to the extent of
one-third share in the land comprised in Rectangle No.82, Killa Nos.11 (3
kanal 2 marlas), 19 (5 kanal 13 marlas) 22 (8 kanal 0 marla) and 45/312
share in the land comprised in Rectangle No.82, Killa No.20/1 (7 kanal 12
marlas), 21 kanal (8 kanal 0 marla) situated in the revenue estate of Village
Sidhrawali, Tehsil and District Gurgaon.
R.S.A. No.2902 of 2007 -2-
The facts which form the backdrop of the suit are that the
plaintiffs are the owners and in possession of the suit land to the extent of
one-third share vide decree dated 10.3.1980 passed in civil suit bearing
caption Ram Avtar and others v. Shiv Lal. The appeal preferred there-
against by the defendants was also dismissed vide judgment dated
9.10.1980. The aforesaid decree was executed and mutation No.744 was
entered in favour of the plaintiffs. The defendants in collusion with revenue
officials, illegally got cancelled the said mutation. The entries being
erroneous in the revenue record and against the order of the Civil Court
were liable to be set aside and the same were required to be corrected in
favour of the plaintiffs. The defendants have no right to take an undue
advantage of such wrong entries. They are threatening to dispossess the
plaintiffs and to alienate the suit land. On these allegations, the suit has
been filed for declaration to the effect that the plaintiffs are owners in
possession to the extent of one-third share in agricultural land, comprised in
Khewat No.176/194, Rectangle No.82, Killa No.11 (3 kanal 2 marlas), 19 (5
kanal 13 marlas), 22 (8 kanal 0 marla), 45/312 share in Rectangle No.82,
Killa No.20/1 (7 kanal 12 marlas), 22 (8 kanal 0 marla) total measuring 32
kanal 7 marlas situated in the revenue estate of aforesaid Village and that
the revenue entries showing defendants to be in possession of disputed
property are wrong and illegal, with consequential relief of perpetual
injunction restraining the defendants from interfering in the possession of
the plaintiffs over the suit land apart from alienating the same.
In answer to this claim, the defendants in their joint written
statement, have inter-alia pleaded that the suit is not maintainable and is
barred by limitation. It has been denied that the plaintiffs are the owners in
R.S.A. No.2902 of 2007 -3-
possession of the disputed property, rather the answering defendants are the
absolute owners in peaceful possession of the same. It is further denied that
the plaintiffs have become the owners in possession of the disputed property
through the alleged judgment and decree. As alleged, the mutation No.744
has been rightly cancelled.
The following issues were framed by the learned trial Court:-
1. Whether plaintiffs are owners in possession of the suit
land described in para no.1 of the plaint? OPP
2. Whether the entries in the revenue record of the suit land
are wrong, illegal, void and liable to be set aside? OPP
3. Whether plaintiffs are entitled to claim as prayed ? OPP
4. Whether suit of the plaintiffs is not maintainable in the
present form? OPD
5. Whether suit of the plaintiff is barred by their own act,
conduct, acquiescence and latches? OPD
6. Whether suit of the plaintiff is time barred? OPD
7. Whether suit is not property valued for the purpose of
court fee and jurisdiction? OPD
8. Relief.
After hearing the learned counsel for the parties and examining
the evidence on record, the learned trial Court decreed the suit as noticed at
the outset. Feeling aggrieved therewith, the defendants went up in appeal,
which was dismissed by the First Appellate Court. Being undaunted and
dissatisfied therewith, the defendants have preferred this appeal.
I have heard the learned counsel for the parties, besides
perusing the record as well as the findings returned by both the Courts
R.S.A. No.2902 of 2007 -4-
below with due care and circumspection.
Mr. Sandeep Sharma, Advocate on behalf of the appellants
urged with great eloquence that a combined reading of Ex.P.4, the certified
copy of the judgment delivered by the Court of learned Additional District
Judge, Gurgaon as well as Ex.P.10 Mutation No.744 would reveal that this
mutation is discordant with the operative part of Ex.P.4 and it is because of
this reason that it has been cancelled. He further puts that this mutation
being in teeth with E.P.4, both the Courts below have gravely erred in
decreeing the suit.
To tide over these submissions, Mr. P.R. Yadav, Advocate
representing the respondents maintained that if it is assumed that Ex.P.10 is
not in consonance with Ex.P.4, the remedy open to the defendants was to
approach the concerned authorities for necessary correction. Ex.P.10 has
been got cancelled at the back of the plaintiffs and that being so, no fault
can be found with the findings returned by both the Courts below.
I have given a deep and thoughtful consideration to the rival
contentions.
The substantial question of law which arises for determination
is “as to whether a suit for simpliciter declaration is maintainable?” There
is no dispute with the proposition of law that a simpliciter suit for
declaration without seeking relief of possession is not maintainable. But
here in this case, the facts are distinguishable. Vide Ex.P.2, the certified
copy of the judgment dated 10.3.1980 delivered by the Court of learned Sub
Judge Ist Class, Gurgaon, Ram Avtar alias Hem Chand, Kanwar Lal, Parbhu
sons, Chandro daughter and Sarti widow of Hira Lal son of Nain Sukh were
granted a decree for joint possession to the extent of one-third share in the
R.S.A. No.2902 of 2007 -5-
disputed land. The appeal was preferred against this judgment. The learned
Additional District Judge, Gurgaon vide his judgment/ decree dated
9.10.1980 Ex.P.4 held as under:-
“For the reasons recorded above, there is no merit in the
appeal. However, there is merit in the cross-objections. The
decree dated 10.3.1980 under appeal passed by learned trial
Judge, is hereby set aside. A decree for joint possession to the
extent of 1/3rd share in the land comprising in Rect. No.82,
Killa Nos.11(3-2), 19(5-13), 22(8-0) and 45/312 share in the
land comprising in Rect. No.82, Killa No.20/1 (7-12), 21(8-0),
situated in the revenue estate of village Sidhrawali, Tehsil and
District Gurgaon, is hereby passed in favour of the plaintiff-
respondents against the defendant.”
The mutation Ex.P.10 was sanctioned on the basis of this
decree. When the defendants started threatening to dispossess the plaintiffs
and to alienate the land in dispute, the latter filed the present suit. Thus, this
suit is maintainable as the plaintiffs being in possession were not required to
seek the consequential relief of possession. So, the substantial question of
law is determined accordingly. A glance through Ex.P.10 would reveal that
no reason worth the name has been assigned with regards to the cancellation
of this mutation. To add further to it, as would be apparent from the record,
this mutation was cancelled without affording an opportunity of being heard
to the plaintiffs. Even the doctrine of `Audi Alteram Partem’ contemplates
that no one should be condemned unheard. If the correction is to be made in
the entries existing in the revenue record, the concerned revenue authority is
required to notify such change to the party to be effected thereby. In the
R.S.A. No.2902 of 2007 -6-
instant case, the plaintiffs- respondents have been condemned unheard. The
order cancelling this mutation is non-reasoned and laconic. Sequelly, the
findings returned by both the Courts below warrant no interference. The
plaintiffs- respondents are entitled to get the land as mentioned in the
operative part of Ex.P.4 mutated in their names in the revenue record.
As a sequel of the above discussion, this appeal being devoid of
any merit is dismissed.
December 16, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No.