R.S.A.No. 2477 of 2007 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2477 of 2007 Date of decision: 4.8.2009 Bhagwana ......Appellant Versus Bir Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. K.B.SharmaAdvocate, for the appellant. Mr.Jaswant Jain, Advocate, for the respondents. **** SABINA, J. Plaintiff Bhagwana filed a suit for declaration, which was dismissed by the Civil Judge (Sr.Divn.) Rewari vide judgment and decree dated 17.2.2004. Appeal filed by the plaintiff was also dismissed by the Additional District Judge, Rewari vide judgment and decree dated 23.8.2006. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 4 to 8 of its judgment, are as under:- R.S.A.No. 2477 of 2007 2 “4. The plaintiff filed a suit for declaration with material averments that his father Bhoru son of Khushal was owner of possession of the land bearing rectangle no.30 killa No.22 (8-0) situated in village Baghthala. On the death of his father, he inherited the suit land and continued to be owner in possession of the suit land. The defendants or their fore-fathers had no concern with the suit land. 5. Father of the plaintiff Bhohru was also owner of the land bearing Khewat No.27 Khatauni No.42 rect. 20 Killa No.19 (8-0) situated in village Bagthala, Tehsil Bawal, District Rewari. He had ex-changed the said parcel of land with Nand Ram, the grand father of the defendants, for the land owned by Nand Ram, bearing Khewat No.34, Khatauni No.49, rect. No.53 killa no.13 (7-14), 18 (1-3) total measuring 8 kanal 17 marla situated in village Bagthala, Tehsil Bawal, District Rewari. In 1972 the said exchange was acted upon and the parties took possession of the land, came in exchange respectively, as owners. The father of the plaintiff never exchanged or gave in exchange the suit land comprised in rect. No.30 killa No.22 (8-0) to the grand father of the defendants Nand Ram. Nand Ram, being clever person taking advantage of illiteracy and R.S.A.No. 2477 of 2007 3 innocence of the father of the plaintiff, illegally, secretly and in collusion with revenue staff got entered the suit land in the mutation of exchange bearing No.539, and got it sanctioned in his favour. Whereas, the father of the plaintiff had only exchanged killa No.30/19 (8-0) kanal for killa No.53/13, 18/1 total measuring 8 kanal 17 Marla and he never exchanged the land bearing rect. No.30 Killa No.22(8-0) kanal. Mutation No. 539 is illegal, nonest and liable to be set aside to said respect. The plaintiff is continued cultivating the land as owner from the time of his fore-fathers till date without any interference. In 1997 the plaintiff contracted the Halqa Patwari for obtaining copies of the land for the purpose of loan from the bank, when from the time he came to know the illegal entries that has cast clouds upon his rights in suit land. He asked the defendants to get the revenue record corrected in his name but they refused, which necessitated him to file the suit. 6. The plaintiff prayed that decree for declaration be passed in his favour declaring him as owner in possession of the land by setting aside the mutation bearing No.539 and declaring it as illegal, nonest, binding upon his rights and further he be entitled to get the revenue record corrected in his favour. 7. The defendants upon appearance filed joint R.S.A.No. 2477 of 2007 4 written statement and contested the suit of the plaintiff, inter alia, on the grounds that the suit is not within limitation; that the plaintiff has been accepting the fore- fathers of the defendants as owners in recognition of exchange, now he is estopped from filing the suit; that the suit is bad on account of non-joinder of necessary parties; that the plaintiff has no cause of action and locus standi to file the suit and that the suit is not maintainable in the present form as the plaintiff is not in cultivating possession of the suit land. 8. On merits, the defendants specifically pleaded that fore-fathers of the plaintiff and defendants and Moolia orally exchanged their land with a view to collect the land at one place (Chack) so that Tubewell could be got installed for more production of agriculture produce. The suit land was got exchanged by the father of the plaintiff with their grand father in lieu of land owned by his grand father. The parties took their respective possession under exchange. Since, then the defendants continued to be in cultivating possession of the suit land from the time of their ancestors. After exchange Bohru, father of the plaintiff constructed Tubewell in the land came in exchange. Mutation No.539 was rightly entered and sanctioned R.S.A.No. 2477 of 2007 5 incorporating the suit land in presence of the parties after Bohru gave his statement before revenue officer. The defendants denied that suit land bearing no.30/22 (8-0) kanal was not exchanged or that mutation was secretly entered allegedly in connivance with the revenue staff. The defendants also denied that the plaintiff is coming in cultivating possession of the suit land. The defendants pleaded that the plaintiff has knowledge of the possession of the defendants as owner by virtue of exchange. The plaintiff was also aware of the revenue entries as he took loan from G.G.B. Bolni Bank on 26.9.1990. The defendants on these broad averments pleaded for dismissal of the suit. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession to the suit property as alleged in para No.1 of the plaint? OPP 2. Whether the suit of the plaintiff is time barred? OPD 3. Whether the suit is not maintainable in the present form? OPD R.S.A.No. 2477 of 2007 6 4. Whether the suit of the plaintiff is bad for non- joinder of necessary parties? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that he was owner in possession of the agricultural land comprised in khasra number 22 (8-0). The case of the plaintiff is that Bohru was exclusive owner in possession of the suit land during his life time and thereafter, it had come to the plaintiff. The said land had never been given in exchange to the grand father of the defendants. It was not natural for any person to give 16 kanals of land and in turn take 8 kanals of land in exchange. However, mutation with regard to exchange of land effected between Bohru and grand-father of the defendants was duly sanctioned on 24.11.1977 acknowledging the oral exchange effected between the parties. Admittedly, no appeal was preferred against the said mutation. The revenue record produced on the file by the defendants depicts them to be owner in possession of the suit land. It is not a case that a single stray entry was entered in favour of the defendants. Rather there are consistent entries in the revenue record in favour of the defendants from the year 1978 to 1994. A presumption of truth is attached to the entries R.S.A.No. 2477 of 2007 7 in the jamabandi. Although the said presumption is rebuttable but the plaintiff has failed to rebut the said presumption of truth. Since the plaintiff was not reflected to be in possession of the suit property and the revenue record depicts that the defendants are in possession of the suit property as owners, the suit of the plaintiff has been rightly dismissed by the Courts below. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 04, 2009 anita