R. S. A. No. 61 of 2005 (1)
In the High Court of Punjab & Haryana at Chandigarh
R. S. A. No. 61 of 2005 (O&M)
Date of decision : 19.11.2008
Sampuran Singh and others ..... Appellants
vs
Jagir Singh (deceased) and others .... Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Arvind Singh, Advocate, for the appellants.
Mr. Som Nath Saini, Advocate, for the respondents.
Rajesh Bindal J.
The plaintiffs are in second appeal before this court against the
judgment and decree of the lower appellate court whereby that of the trial
court was partially modified.
Briefly, the facts are that the plaintiffs filed a suit for
declaration with consequential relief of permanent injunction challenging
the judgment and decree of the Additional District Judge, Kurukshetra,
dated 19.2.1990 and the mutation entered on the basis thereof. The claim in
the suit was that Budhu, Tulsi and Munshi were co-owners of the land
measuring 137 bighas 0 biswa as per the jamabandi for the year 1944-45.
Munshi was owner of ½ share, whereas Budhu and Tulsi were owner to the
extent of ¼ share each. Tulsi sold land measuring 10 bighas 8 biswas to
Gopala father of the appellants vide registered sale-deed dated 28.6.1965.
The suit was filed by Jagir Singh challenging the aforesaid sale-deed on the
ground that Tulsi had sold land more than his entitlement in the khewat and
accordingly the sale-deed to the extent of 8 bighas 8 biswas was not binding
on the other co-sharers. The suit was dismissed by the trial court. However,
in appeal, the judgment and decree was reversed by the learned Additional
District Judge, Kurukshetra on 19.2.1990. Against this order, the plaintiffs
filed R. S. A. No. 1084 of 1990 which was dismissed vide order dated
5.12.1990. However, in review application, vide order dated 17.2.1994, this
court granted liberty to the plaintiffs to file fresh suit to challenge judgment
and decree dated 19.2.1990.
R. S. A. No. 61 of 2005 (2)
It was this judgment and decree which was sought to be
impugned by raising the plea that share owned by Tulsi was much more
than what was sold and no excess land had been sold to the father of the
appellants namely Gopala. Though the learned trial court dismissed the suit
in toto, however, the learned Additional District Judge found that Tulsi had
sold 4 bighas 9 biswas in excess of his share and to that extent the suit was
dismissed and the judgment and decree of the trial court was modified.
Learned counsel for the appellant submitted that as per the
statement of PW2 Ganga Bishan Patwari, the total land in the khewat was
139 bighas 16 biswas and after calculation 1/4th share coming to the share of
Tulsi would be sufficient to cover the entire land sold by him and
accordingly the suit in its entirety was required to be decreed by setting
aside the judgment and decree dated 19.2.1990. Learned counsel for the
respondents submitted that there was no pleadings to support the statement
of the patwari. In fact, in his cross-examination he stated correct facts,
which totally demolishes the case of the appellants.
After hearing learned counsel for the parties, I do not find any
merit in the submissions made.
The issue has been considered by the learned appellate court in
para 11 in the impugned judgment, wherein it has been specifically
mentioned that in the plaint filed by the appellants/plaintiffs it was stated
that the total land is 137 bighas. It was only in the examination-in-chief of
Ganga Bishan Patwari that it was stated that the total land in the khewat was
139 bighas 16 biswas. However, the statement was without any basis as in
the pleadings the appellants claimed that the total area in the khewat was
137 bighas and not only this even PW2 Ganga Bishan Patwari also in his
cross-examination stated that it was only 127 bighas 7 biswas land was left,
in which share of Tulsi was 31 bighas 17 biswas and out of which he
admittedly sold 36 bighas 6 biswas vide different sale-deeds. The sale-deed
executed in favour of Gopala dated 28.6.1965 was the last one in the series.
If considered from the material placed on record and the share of the Tulsi
in the land, it was found that he sold excess to the extent of 4 bighas 9
biswas and it was only to that extent that the judgment and decree of the
learned Additional District Judge, Kurkshetra, dated 19.2.1990 was declared
null and void.
R. S. A. No. 61 of 2005 (3)
The findings recorded by the court below are plain and simple
findings of fact recorded on correct appreciation of the material placed on
record. No question of law much less a substantial question arises.
Accordingly, the appeal is dismissed.
19.11.2008 ( Rajesh Bindal) vs. Judge