R.S.A. No. 1197 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1197 of 2002 Date of Decision: 9.12.2008 Balwant Kaur and others ...Appellants. Versus Jaswinder Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. B.S. Bhalla, Advocate for the appellants. None for the respondents. AJAY KUMAR MITTAL, J. The legal heirs of defendant No.1-Gurdev Singh, who died during the proceedings before the courts below, have approached this Court by way of present regular second appeal against the judgment and decree dated 17.10.2001 passed by the first appellate court affirming that of the trial court dated 7.2.1998 vide which the suit of the plaintiffs for declaration, was decreed. Succinctly stated the facts of the case are that the plaintiffs by way of a suit for declaration had challenged the order of partition dated 11.12.1992, passed by the Assistant Collector Ist Grade, Moga, and had also claimed declaration to the effect that plaintiffs No.1 and 2 were owners of the land bearing khasra Nos. 38//22-23-24 min and R.S.A. No. 1197 of 2002 -2- plaintiff No.3 of the land bearing khasra No. 38//13-18, situated within the revenue estate of village Lande-I, Tehsil and District Moga (hereinafter referred to as the “suit land”). It was pleaded that Harbans Singh and Puran Singh had 1/3rd share each in the suit land and after the death of Puran Singh, the same was succeeded by defendants No.2 and 3. It was further pleaded that plaintiffs No.1 and 2 purchased land measuring 21 kanals 8 marlas from Harbans Singh vide sale deed dated 17.1.1991 whereas plaintiff No.3 purchased 16 kanals from Puran Singh vide sale deed dated 29.4.1991. It was also pleaded that on the basis of the aforesaid sale deeds, the plaintiffs claimed themselves as owners in possession of the suit land but they were being threatened of forcible dispossession by defendant No.1 on the basis of the order of partition dated 11.12.1992 procured by him from the revenue officers which was wrong, null and void and not binding on the rights of the plaintiffs. The plaintiffs requested the defendants to desist from doing illegal designs but to no effect and that gave rise to the filing of the suit for declaration. Upon notice, the suit was contested by defendants No.1 by filing a written statement wherein various preliminary objections were raised. It was pleaded that the plaintiffs were not co-owners of the suit land on the basis of the sale deeds executed by Harbans Singh and Puran Singh. It was further pleaded that since the order dated 11.12.1992 passed by the Assistant Collector Ist Grade, Moga was not challenged by the plaintiffs, the same had become final. Besides denying the other averments made in the plaint, a prayer for dismissal of the suit was made. R.S.A. No. 1197 of 2002 -3- During the pendency of the suit, defendant No.6 had expired whereas suit qua defendants No.2 and 3 was dismissed by the trial court vide order dated 20.9.1994 and the remaining defendants were proceeded against exparte. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiffs are owners in possession of the suit land as mentioned in the head note of the plaint? OPD 2. Whether order dated 11.12.1992 passed by Assistant Collector Ist Class is null and void? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the civil court has no jurisdiction to try the suit? OPD 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 6. Whether the suit is bad for non-joinder and mis- joinder of the parties? OPD 7. Relief.” The trial court on appreciation of the oral as well as the documentary evidence led by the parties decided issues No.1 and 2 together being inter-connected in favour of the plaintiffs holding plaintiffs No.1 and 2 to be owners in joint possession of the suit land to the extent of 21 kanals 8 marlas being vendees of Harbans Singh vide sale deed, Ex.P1, while plaintiff No.3 was owner in possession of the suit R.S.A. No. 1197 of 2002 -4- land to the extent of 16 kanals, sold to him by Puran Singh, vide sale deed, Ex.P2. Further, the order of partition dated 11.12.1992 passed by the revenue authority was held to be illegal, null and void qua the rights of the plaintiffs. Accordingly, the trial court vide judgment and decree dated 7.2.1998 decreed the suit of the plaintiffs. Feeling aggrieved, the matter was taken up in appeal by the legal heirs of defendant No.1 and the lower appellate court vide judgment and decree dated 17.10.2001 while affirming the findings recorded by the trial court, dismissed the appeal. Learned counsel for the appellant submitted that the findings recorded by the courts below are contrary to the evidence and are, thus, perverse. According to the learned counsel, the findings are based on misreading and misappreciation of evidence and, thus, legally unsustainable. He further submitted that when the findings of fact arrived at by the lower appellate court were contrary to the evidence on record, a substantial question of law arises for consideration of this Court. I have heard the learned counsel for the appellants and perused the record with his assistance. Both the courts on appreciation of the testimonies of the witnesses and the documentary evidence, had under issues No.1 and 2 recorded that plaintiffs No.1 and 2 were owners in joint possession of the suit property to the extent of 21 kanals 8 marlas as vendees of Harbans Singh while plaintiff No.3 was declared owner in joint possession of the land measuring 16 kanals sold to him by Puran Singh co-sharer vide registered sale deed, Ex.P2. It was further recorded by R.S.A. No. 1197 of 2002 -5- the courts below that the order dated 11.12.1992 passed by the Assistant Collector Ist Grade, Moga in partition proceedings was illegal, null and void qua the rights of the plaintiffs. No illegality or perversity could be pointed out in the findings of fact recorded by the courts below except that the learned counsel made valiant efforts to re-appreciate the evidence and to arrive at a different conclusion than that of the courts below. However, drawing of different inference than that of the courts below, upon reappreciation of the evidence, is outside the purview of Section 100 of the Code of Civil Procedure. It is only the perverse findings based on misreading and misappreciation of evidence that can be corrected by this Court in the second appeal. Moreover, in this case, execution of the sale deeds vide which the suit land was transferred in favour of the plaintiffs prior to initiation of the partition proceedings had been duly proved and, therefore, they being bonafide purchasers for consideration could not be deprived of the suit land by the defendants. In view of the above, finding no merit in this appeal, the same is hereby dismissed with no order as to costs. December 9, 2008 (AJAY KUMAR MITTAL) gbs JUDGE