High Court Punjab-Haryana High Court

Smt. Chandro vs Prabhati And Others on 18 September, 2008

Punjab-Haryana High Court
Smt. Chandro vs Prabhati And Others on 18 September, 2008
RSA No.811 of 2005(O&M)                            1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                                            RSA No.811 of 2005(O&M)
                                            Date of decision: 18.9.2008

Smt. Chandro                                       ...... Appellant

                                versus

Prabhati and others                                .......Respondents


CORAM:      HON'BLE MR. JUSTICE RAKESH KUMAR GARG

                         ****

Present: Mr. J.P. Sharma, Advocate for the appellant.

****

Rakesh Kumar Garg, J .

CM No.960-C of 2005

For the reasons recorded in the application, delay of 20 days

in filing the appeal is condoned.

CM stands disposed of.

RSA No.811 of 2005(O&M)

1. This regular second appeal has been filed by defendant No.2

challenging the judgment and decrees of the Courts below whereby the

suit of plaintiff-respondents for permanent injunction restraining the

defendant-appellant from interfering in the possession and cultivation of the

suit land has been decreed.

2. Briefly, the case of the plaintiffs is that Sheo Lal predecessor-

in-interest of the plaintiffs and the proforma defendant No.3 was in

possession of the suit land for the last 65 years as tenant on payment of

Rs.253/- as rent per annum to be paid to the owner Fateh Lal. Since Sheo

Lal was tenant prior to 1956, so he could not be evicted from the suit land.

Later on, Nand Kishore became the owner of the suit land and he did not
RSA No.811 of 2005(O&M) 2

give notice regarding change of ownership to Sheo Lal, but in any case,

Sheo Lal became the tenant under Nand Kishore. Sheo Lal expired and

the plaintiffs and proforma defendant No.3 became tenant over the suit

land. One Girdhari son of Fateh Lal in connivance with Nand Kishore and

Patwari of the village got wrong entries in the revenue record . After getting

wrong entries in the revenue record, Girdhari Lal filed a suit for possession

and recovery in the Court of Assistant Collector 1st Grade, Narnaul which

was dismissed on 5.2.1993 and it was held that Girdhari lal had no concern

with the possession or cultivation of the suit land. Appeal against the

aforesaid order was also dismissed on 18.11.1995 by the Collector

Narnaul. Revision before the Commissioner, Gurgaon was also dismissed

on 16.1.1996. There is a decree dated 1.10.1971 in which it was held

that Sheo Lal was tenant under Nand Kishore on payment of Rs.253/- per

annum as rent. Thus, the plaintiffs and the proforma defendant No.3 being

the legal heirs of Sheo Lal were in possession of the suit land as tenant

under Nand Kishore and defendants No.1 and 2 had no concern

whatsoever with the same. They had sown the crops in the suit land and

defendants No.1 and 2 were bent upon destroying the crops and taking

the possession of the suit land forcibly. So the plaintiffs have filed this suit

seeking decree of permanent injunction for restraining defendants No.1

and 2 from interfering the possession and cultivation of the land measuring

21 bighas 17 biswas Khewat No.1677 Khatoni No.2411 and 2412, Khasra

numbers 26(5-13), 32(5-10), 56 min(7-4) and 61(3-10) situated in Tehsil

Narnaul District Mohindergarh.

3. The defendants No.1 and 2 filed their written statement and

raised preliminary objections qua maintainability, non-joinder of Nand

Kishore as a party, suppressing the material facts, locus-standi, time

barred and estoppel. On merits, the defendants No.1 and 2 pleaded in the
RSA No.811 of 2005(O&M) 3

written statement that Bholu, father of defendant No.2 (Chandro, wife of

Siri Ram) was in cultivating possession of the land measuring 10 bighas 14

biswas comprised in Khasra numbers 56(7-4) and 61(3-10) out of the suit

land. Bholu expired in the year 1980 and thereafter defendant No.2

forcibly entered into possession of the suit land and since 25.4.1980 she

was in open, hostile and continuous possession of this land as such the

possession of defendant No.2 over this land measuring 10 bighas 14

biswas has ripened into ownership by way of adverse possession. It was

denied that Sheo Lal was ever a tenant under Nand Kishore. It was also

denied that the defendants had colluded with Nand Kishore and Halqa

Patwari and got entries in the revenue record. It was also alleged that

there was entry of defendant No.2 in the khasra girdawari for the year

1984-85 and thereafter, entries in the name of the plaintiffs were got

entered illegally which were null and void. It was also alleged that neither

defendant No.2 nor her father Bholu was a party to the Civil Suit in which

decree was passed on 1.10.1971. It was also denied that Girdhari had

filed any suit for eviction against the plaintiffs and proforma defendant

No.3. Hence, the defendants prayed for dismissal of the suit.

4. After hearing learned counsel for the parties, the trial Court

vide its judgment and decree dated 5.9.2002 decreed the suit of the

plaintiffs.

5. Being aggrieved, the defendants filed an appeal before the

Lower Appellate Court. It is also relevant to mention here that during the

pendency of the appeal an application for amendment of the written

statement was filed by the defendant-appellant to take the plea that the

appellants are in possession as tenant gair marusi and they have become

owners by way of adverse possession. However, this application was

dismissed. The Lower Appellate Court vide its judgment and decree dated
RSA No.811 of 2005(O&M) 4

16.9.2004, while dismissing the appeal held that the appellants are not in

possession of any part of the suit land, nor the adverse possession had

ripened.

6. Still not satisfied with the judgment and decrees of the Courts

below, the defendant No.2-appellant has filed the instant appeal before

this Court.

7. I have heard learned counsel for the appellant.

8. The claim of the appellant is that earlier Bholu was in

possession of the land measuring 10 bighas 14 biswas and after his death,

the defendant-appellant came into forcible possession and thereafter her

possession had ripened into ownership by way of adverse possession. In

support of her case she has placed reliance on khasra girdawari EX.D2

from 1.10.1959 to 2.3.1963, Ex.D3 from 14.10.1963 to 6.3.1967, Ex.D4

from 7.10.1967 to 12.3.1970, Ex.PX/5 for the year 1994-95 and jamabandi

PX/14 for the year 1989-90. On the basis of these documents, the

appellant wanted to establish that Bolu, her father had been shown in

possession of the above said land. The arguments of the appellant that

Bholu has been shown in possession of the suit land cannot be accepted in

view of the entries in the revenue record because in these documents,

Girdhari Lal, the father of Nand Kishore had been shown as owner of the

suit land i.e land in dispute measuring 10 bighas 14 biswas whereas Sheo

Lal has been shown as tenant under Girdhari Lal and others and Bholu the

father of the defendant-appellant has been shown as sub-tenant under

Sheo Lal.

9. On the other hand, in the revenue record Exs.D5 to D7 Nand

Kishore is shown as owner of the land measuring 10 bighas 14 biswas

while Girdhari Lal has been shown as tenant without payment of any rent.

In these documents, Sheo Lal has been shown as tenant and Bholu has
RSA No.811 of 2005(O&M) 5

been shown as sub-tenant. The argument of the learned counsel for the

appellant that Bholu has been shown as tenant over the suit land cannot

be accepted in view of the entries mentioned in the jamabandies and

khasra girdawaries. Moreover, these documents cannot be looked into

because they are beyond pleadings of the defendants. It is also relevant to

mention that Nand Kishore had filed an ejectment application which was

decided on 19.12.1982 (Ex.DW2/A) titled as Nand Kishore v. Girdhari Lal

etc. In this application, it is mentioned that Sheo Lal was a tenant while

Bholu was sub-tenant. Siri Ram-defendant filed an application Ex.PW3/A

in which he mentioned that since Bholu had expired, he should be

impleaded as party in place of Bholu. The written statement of Sheo Lal

and Bholu is mark DA on record of the ejectment application in which it has

been admitted that Sheo Lal was in possession of the land in dispute as

tenant gair marusi. It is also mentioned in this written statement that Bholu

was brother of Sheo Lal and Bholu used to help Sheo Lal in cultivating the

suit land. Thus, there is a clear admission on the part of Bholu Ram and

Siri Ram himself has admitted that Sheo Lal was in possession of the suit

land. Then after his death entering into possession by his daughter does

not arise at all. The said application of Siri Ram was dismissed. The Lower

Appellate Court has also recorded a finding of fact that in Civil Suit titled

Suresh Chand etc. v. Sohan Lal, the copy of which is Ex.PX/6, the suit of

the plaintiff was dismissed vide judgment and decree dated 1.10.1971

declaring Sheo Lal as exclusive tenant over the whole suit land and holding

that Girdhari Lal has no concern with respect to the possession and

tenancy of the said land. Thus, from a bare perusal of plaint Ex.PW2/A,

written statement mark DA and judgement Ex.PX/6, it is apparently

established that only Sheo Lal was tenant of whole suit land measuring 21

bighas 17 biswas since 1940 and Girdhari Lal and Bholu had got no
RSA No.811 of 2005(O&M) 6

concern with it either as tenant or otherwise. Another fact has also been

proved on record that vide judgment and decree dated 27.4.1987 Ex.PX/1

passed in Civil Suit No.442 of 1981, the plaintiff was again declared as an

exclusive tenant of the whole suit land and restraining owner and Girdhari

Lal not to interfere in possession. Thereafter, the appeal filed against the

said judgment was dismissed vide judgment Ex.PX/2 on 13.11.1991

holding that the plaintiffs and proforma respondent No.3 in the suit were

direct tenant under Nand Kishore. The objection of the learned counsel for

the appellant that the document mark DA, is not admissible into evidence is

without any substance as the written statement mark DA was tendered by

the defendants themselves in their evidence treating it as genuine and duly

executed documents. Thus, they cannot raise an objection with respect to

the admissibility of this document. Moreover, this document is 30 years old

document and has come from the Court record and has been produced by

the appellant i.e daughter of one of the executants Bholu and the same is

admissible as per Section 90 of Indian evidence Act.

10. The objection regarding that all the judgments mentioned

above, neither Bholu nor the defendant-appellant were party in these

judgments and they do not bind them. This objection of the learned

counsel for the defendant-appellant is also not acceptable. Bholu himself

admitted in para No.16 of his written statement mark DA that judgment

dated 1.10.1971 Ex.PX/6 was final between the parties including Bholu.

So, Bholu himself and defendant Smt. Chandro being his daughter has

claimed right through him are also bound by it. Further, all other judgments

mentioned above have been passed upon judgement dated 1.10.1971

Ex.PX/6, so these documents are also binding upon them as it has been

so held in Tirumala Tirupati Dvasthanams v. K.M.Krishnaiah 1998(1)

SLJ 932(S.C.). It is observed that even judgment between their party is
RSA No.811 of 2005(O&M) 7

admissible under Section 13 of Indian Evidence Act.

11. The plea of adverse possession to defendant No.2 is also not

available because the possession for a period of 12 years could not be

estalished. Ex.D8 and Ex.D9 reveals that the possession of the appellant

Smt. Chandro has been shown from 1980-85 i.e. only five years and that

too as sub-tenant under plaintiff-respondents. So, the question of

declaring her as owner on account of adverse possession does not arise.

The authority cited by the learned counsel for the defendants i.e. Asa

Singh and another v. Mansha Ram another AIR 1930 Lahore 237 is not

applicable to the facts of the present case because the facts of the present

case are totally different. So, this ruling does not help the defendant-

appellant in any manner. Therefore, defendants No.1 and 2 are not in

possession of any part of the suit land i.e land in dispute measuring10

bighas 14 biswas nor the adverse possession of the appellant had ripened

into ownership.

12. Thus, no fault can be found with the findings of fact recorded

by the Courts below. No substantial question of law arises in the present

appeal.

13. No merit. Dismissed.

September 18, 2008                         (RAKESH KUMAR GARG)
ps                                                JUDGE