RSA No.1144 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1144 of 1984 (O&M) Date of Decision: 08.01.2010 Kailash Rani (dead) through LRs and Anr. ..Appellants Vs. Atma Ram ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Sanjay Majithia, Sr.Advocate, with Mr.Shalendra Sharma, Advocate, for the appellants. None for the respondents. --- Vinod K.Sharma,J. (Oral) The defendant/appellants by way of this regular second appeal have challenged the judgment and decree dated 23.12.1983 passed by the learned Additional District Judge, Amritsar vide which suit filed by the plaintiff/respondents seeking declaration that they were owners in possession of the 93 kanals 16 marlas of land situated in village Mehaidipur with a consequential relief of injunction restraining the defendants from dispossessing them forcibly or interfering in their possession stands RSA No.1144 of 1984 2 decreed. The plaintiff/respondent Atma Ram and others filed a suit on the pleadings that plaintiff No.1 i.e. Atma Ram had obtained possession of the land in dispute on 6.12.1958 in pursuance to the decree passed in a pre- emption suit against Balbir Singh i.e. the vendee from Satpal Singh deceased who had sold his half share to him. The appellant/defendants, the real sisters of Satpal deceased filed an application on 7.8.1980 against Atma Ram, as the mutation of succession in their names had been sanctioned. Plaintiff No.1 also claimed that the possession of the plaintiff No.1 had ripened into ownership being adverse to the entire world including the defendants. It was also pleaded that the land in dispute fell into two Kurras but mutation was entered in the name of Atma Ram plaintiff only with regard to one Kurra by oversight, and the plaintiffs came to know about it only on 17.12.1980, which led to the filing of the suit for declaration and injunction on 16.4.1981. The suit was contested by the defendant/appellants, wherein preliminary objection was taken that the details of the mutation in the name of the plaintiffs were not given. Plea of non-joinder of necessary parties was taken as Balbir Singh etc., the alleged vendees were not made parties to the suit. Plea of limitation was also raised. On merit, stand taken was, that after the death of Satpal deceased, the defendants became owners of his half share in suit land, being real sisters of the deceased. It was denied that Satpal had sold the suit land RSA No.1144 of 1984 3 in favour of Balbir Singh etc or that the plaintiff No.1 obtained a pre- emption decree in his favour. Replication was filed wherein allegations made in the plaint were reiterated and those in the written statement were denied. Learned trial court framed the following issues:- 1. Whether Atma Ram plaintiff is the exclusive owner of the land in dispute? OPP 2. Whether the plaint is vague and to what effect? OPD 3. Whether the suit is bad for non-joinder of Balbir Singh? OPD 4. Whether the plaintiff is estopped from filing the suit from his act and conduct? OPD 5. Whether the suit is within limitation? OPP 6. Relief. In order to prove issue No.1 plaintiff examined Satpal as PW 1, Narinjan Singh PW 2, Teja Singh PW 3 and Shri V.K.Dhawan, Advocate tendered into evidence jamabandi for the year 1978-79 and Khasra Girdawari for the period from 1966 to 1980-81 ExP.3 and mutation No.60 Ex,P.4 and Khasra Girdawari regarding possession Ex.P.5 in addition to decree sheet Ex.P.6 and the copy of order of the court dated 1.4.1958 Ex.P.7. On the other hand Smt.JanakRani, defendant appeared as DW 1 and also examined one Kartar Singh DW 2. RSA No.1144 of 1984 4 Learned trial court did not accept the ownership of the plaintiffs, for the reason that in the jamabandi for the year 1978-79 name of Sat Pal son of Munshi Ram was entered as owner of the land in dispute to the extent of half share, whereas Atma Ram plaintiff was shown to be in possession of another half share as owner. The learned court held that it was for the plaintiff to have got entered the decree of the civil court in the revenue record and therefore, it was not permissible for him to seek correction of revenue record after so many years of the passing of decree. The learned trial court accepted the version of DW Kartar Singh examined by the defendant, to accept the contention that no pre- emption suit was filed, and that his son Satpal never mortgaged or alienated the land in dispute to anybody. The learned trial court decided issue No.1 against the plaintiff. Issue No.2 was also decided against the plaintiff and in favour of the defendants as the averments made in the plaint were held to be vague as no particulars of the Kurra for which mutation was sanctioned were mentioned. Issue No.3 was decided against the defendants as the plaintiffs did not seek any relief against Balbir Singh etc. Issue No.4 was decided in favour of the defendants by upholding the plea that the plaintiffs were estopped by their own acts and conduct from filing the present suit. Issue No.5 was also decided against the plaintiffs and suit was held to be barred by limitation. As a result of findings recorded the suit was dismissed. RSA No.1144 of 1984 5 Plaintiff/respondents preferred an appeal. Learned lower appellate court came to the conclusion, that the findings recorded by the learned trial court, could not be sustained in view of well settled law, that mutation confers no title and the adverse entries in the revenue record namely jamabandi did not affect the rights of the parties as the jamabandi were not a document of title. Learned lower appellate court further held that though entries in jamabandi carry a presumption of correctness, but it is rebuttable. Support for this view was sought from the judgment of this court in the case of Resham Singh & Ors. Vs. Paul Singh 1969 PLR 602. The learned lower appellate court in view of the settled proposition of law, held that copy of judgment Ex.P.6 and copy of decree sheet Ex.P.7, showed that Atma Ram had filed a suit for pre-emption against Satpal, Balbir, and others on 23.11.1957, which on the basis of compromise statements, of the parties was decreed by the court vide its order dated 1.4.1958 in favour of Atma Ram. The sale of suit land i.e. share of Satpal was pre-empted by Atma Ram and a compromise decree was passed in his favour. The learned lower appellate court, held that the copy of decree sheet Ex.P.7 showed that Khasra number of pre-consolidated land and post- consolidated land mentioned were same as in the land in suit. The learned court held that, there was no doubt that the land in dispute was subject- matter of pre-emption suit. The learned appellate court found that in pursuance to the decree the possession of the land was handed over to the plaintiff. Learned RSA No.1144 of 1984 6 lower appellate court also found that Smt.Kailash Rani in her statement recorded in court on 10.6.1981, before framing of the issues admitted the possession of Atma Ram plaintiff over the entire suit land. Similarly, Janak Rani defendant in her statement as DW 1 admitted, that the defendants were not in possession of the land, in dispute and that after the death of Satpal they did not enter into the possession of the land. It was further admitted by her in court that Atma Ram plaintiff was in possession of the suit land. DW 2 Kartar Singh also in his cross-examination admitted that Atma Ram was in possession of the land for the last more than 40-50 years. The learned appellate court, thus, held that possession of the plaintiffs over the suit land was proved. In view of the findings that owner ship and possession was proved learned lower appellate court reversed the findings of the learned trial court on issue No.1. Finding on Issue No.2 was also reversed as the court did not find the averments made in the suit to be vague, as was held by the learned trial court. The learned appellate court found that merely because entries in the revenue record continued in the name of Satpal Singh was not an act which could result in estoppel against the plaintiffs to maintain the suit. The learned appellate court held that conduct of the plaintiff Atma Ram did not justify an inference of estoppel, as nothing was shown as to how the defendants had changed their position to their disadvantage on account of inaction of the plaintiff. RSA No.1144 of 1984 7 Learned lower appellate court by relying on the judgment of this court in the case of Hazari etc. Vs. Roop Narain 1974 Current Law Journal 333 recorded a finding, that the suit was not barred by limitation as it was a suit for declaration based on ownership, as his possession was proved rather was admitted. The learned lower appellate court also found that the suit was well within time from the threat to infringe in their rights in the suit land. The learned appellate court thus, by reversing the findings of the learned trial court and by giving cogent reason set aside the judgment and decree passed by the learned trial court, and decreed the suit filed by the plaintiff/respondents. Mr.Sanjay Majithia, learned senior counsel appearing on behalf of the appellants raised the following substantial questions of law for consideration by this court:- 1. Whether the appellate court erred in reversing the judgment of trial court overlooking settled law that as and when the court of appeal reverses a finding of fact, it must come inclose quarters with the judgment of trial court and meet its reasoning before reversing the same? 2. Whether the appellate court was legally in error in relying upon judgment Ex.P.7 and decree Ex.P.6 since the same was conditional and in naturae of preliminary decree and because of lack of compliance and execution, it became a nullity and lacked enforce ability? RSA No.1144 of 1984 8 3. Whether mere marking of a document as an exhibit i.e. Ex.P.5 (Repat Roznamacha) dispenses with the proof thereof since no mutation was sanctioned on its basis as also of Ex.P.6? 4. Whether adverse possession can be claimed against a co- sharer? 5. Whether without passing of consideration, a pre-emptor can substitute a vendee in the sale deed and consequently can a pre-emptor get better rights than the vendee? Learned senior counsel appearing on behalf of the appellants, vehemently contended, that the learned lower appellate court has reversed the well reasoned judgment of the learned trial court by overlooking the settled law, that in order to upset the finding recorded by the learned trial court the appellate court was required to give cogent reasons for the reversal of the findings. The contention of the learned senior counsel was that findings of the learned trial court were based on entries recorded in the revenue record and therefore, could not be said to be perverse which could entitle the appellate court to reverse the findings of ownership of appellant. This contention of the learned senior counsel cannot be accepted. Learned lower appellate court upset the findings given by the learned trial court, by giving cogent reasons. The findings recorded by the learned trial court was against the well settled principles of law that entries in the revenue record do not confer title, the presumption of truth attached RSA No.1144 of 1984 9 to revenue entries is rebuttable. Once revenue entries were found to be contrary to the documents of title, and ownership rights of the parties, it could not be said that the finding by the learned trial court was based on settled dicte of law as contended. The first substantial question of law, therefore, is answered against the appellants. In support of second substantial question of law learned senior counsel for the appellants vehemently contended that the learned lower appellate court committed an error in relying upon the judgment Ex.P.7 and decree Ex.P.6 though it was only a conditional decree and there was no evidence forthcoming to show that the condition stipulated in the decree stood satisfied to hold, that the ownership vested in Atma Ram plaintiff. In support of this contention learned senior counsel, relied upon the judgment of this court, in the case of Praja Singh and Ors. Vs. Gurdip Singh & Ors. AIR 1982 Punjab & Haryana 353, wherein this court was pleased to lay down, that when a decree for possession is made executable on payment of specified money to the judgment debtor, the decree holder could enforce it forthwith paying or depositing of money. However when the money was not deposited within the stipulated period, then the application for execution was liable to be dismissed. The judgment relied upon by the learned senior counsel for the appellants does not apply to the facts of the case, the decree of pre-emption was final and amount stipulated stood paid, as recorded in compromise decree, as would be clear from the translation of Ex.P.7 which reads as under:- RSA No.1144 of 1984 10 “ As per compromise effected by the parties, the suit for possession by way of pre-emption right stands decreed in favour of the plaintiff against the defendants on payment of Rs.2400/-. The said amount is deposited in the court. The cheque of the said amount be handed over to Darshan Singh, Pakhar Singh (strike off). Pakhar Singh is also the Wali (guardian) of minors. The parties are left tot bear their own costs. The plaintiff an get the land redeemed after limitation after paying Rs.8150/- to the defendant Nos. 8 and 9. He has become the owner henceforth. It is in the interest of the minors. I have scrutinized the item, in the light of which this decision has been pronounced. It is in their interest. Therefore, permission is granted on their behalf. The fee of Loca,l Commission be given” The reading of the decree shows that amount stipulated, was in fact deposited and was even handed over to the defendants in the suit. The liberty was also given to redeem the land after limitation. The contention of the learned senior counsel that decree was conditional, therefore, cannot be accepted as the ownership right to the plaintiff Atma Ram was conferred by way of decree with a further right to redeem the property. Once it was proved on record that Atma Ram was in possession of the property presumption of redemption can be drawn or in any case it is RSA No.1144 of 1984 11 a dispute between the mortgage and mortgagees, and no benefit, therefore, can be taken by the appellants, specially, when the representatives of the defendant in the suit denied the execution of mortgage deed or sale deed. The contention of the learned senior counsel that the decree was conditional also deserves to be noticed to be rejected. The second substantial question of law, as framed is also answered against the appellants. Learned senior counsel for the appellants, in support of third substantial question of law, vehemently contended, that the learned lower appellate court wrongly placed reliance on Ex.P.5 i.e. report of possession, though the document was not duly proved on record. In support of this contention learned senior counsel for the appellants placed reliance on the judgment of Hon'ble Supreme Court in the case of Sait Tarajee Khimchand & Ors. Vs. Yelamarti Satyam and Ors. AIR 1971 SC 1865 to contend that mere marking of a document as exhibit does not dispense with its proof. It cannot be disputed that merely because document is exhibited it does not dispense with proof. However, in the present case it may be seen that besides Ex.P.5 there was an admission of the defendant/appellants regarding possession of the plaintiff/respondents for over 40-50 years, meaning thereby that authenticity of the document showing handing over the possession could not be disputed. Even otherwise, even if Ex.P.5 is taken out of consideration still the possession of the plaintiff/respondents as RSA No.1144 of 1984 12 owner duly stood proved. The third substantial question of law on the facts and circumstances of this case is also answered against the appellants. In support of fourth substantial question of law learned senior counsel for the appellants contended that plea of the plaintiffs that they perfected their title by way of adverse possession cannot be accepted as no adverse possession can be claimed against co-sharer. This contention of the learned senior counsel is correct. However, the suit of the plaintiffs has not been decreed in view of plaintiff's having perfected title by way of adverse possession, but on the basis of document of title i.e. the decree of the civil court showing that suit land was pre-empted and plaintiffs were in possession of the property in dispute. Substantial question of law No.4, therefore, does not arise for consideration by this court. In support of 5th substantial question of law, learned senior counsel contended, that in the absence of proof showing that amount of redemption money was paid by the plaintiffs to the respondents it was not possible for him to substitute as a vendee in the sale deed. Therefore the plaintiffs were not entitled to claim better title than the vendee. In support of this contention learned senior counsel for the appellant placed reliance on the judgment of this court in the case of S.Harjang Singh Vs. Gowardhan Das and Ors. 1952 PLR 29, wherein it was held that assignment of a decree required registration, and further that the definition of decree holder did not include transferee of a decree. The contention of the learned senior counsel was that by applying this principle, it can safely be said that in the absence of payment RSA No.1144 of 1984 13 of consideration amount, the plaintiffs could not substitute them in place of vendees i.e. Balbir Singh etc. The contention of the learned senior counsel on substantial question No.5 is also deserved to be noticed to be rejected. The decree passed in favour of the plaintiffs/respondents reproduced above would show, that consideration amount payable to the vendees was not only deposited by the plaintiffs, but was also paid to vendees, as per compromise decree. Opportunity was given to the plaintiffs to redeem the property on expiry of limitation from the mortgagees. The appellants are admittedly not the mortgagees to claim that property was not redeemed. Dispute, if any, is with mortgagor and mortgagees and the appellants cannot be said to have any interest. The alleged mortgagees have denied their right under mortgage. The plaintiff/respondents are in possession for the last more than 40-50 years, which clearly raises a presumption that mortgage, if any, stood redeemed. Fifth substantial question of law also is answered against the appellants. Finding no merit, this appeal, is dismissed, but with no order as to costs. (Vinod K.Sharma) 08.01.2010 Judge rp