RSA No.521 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.521 of 2010(O&M) Date of decision: 5.2.2010 Bhajan Singh ......Appellant(s) Versus Sucha Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.S. Walia, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that mutation No.1390 sanctioned on 27.6.1996 and subsequent resultant entries in jamabandies in favour of defendant-respondent No.1 are illegal, null and void, with consequential relief of permanent injunction was dismissed. Briefly, the plaintiff pleaded in the plaint that on the basis of a family mutual settlement and mutual partition between the plaintiff- appellant and respondent No.1 on the one hand and Harbans Singh etc. sons of Sohan Singh etc., land measuring 126 kanals 8 marlas and 31 kanals 12 marlas situated in village Leharia had come to the share of the plaintiff and defendant No.1 in equal shares and on the basis of aforesaid mutual partition, a judgment and decree dated 16.9.1995 was passed in Civil Suit No.1585 of 1995 titled as Bhajan Singh etc. v. Harbans Singh etc. and the plaintiff and defendant No.1 were declared joint owners in possession of above said 158 kanals of land in equal shares. The plaintiff-appellant who is an illiterate person had full faith in defendant No.1 (respondent No.1 being his brother due to fiduciary RSA No.521 of 2010(O&M) 2 relationship whereas respondent No.1 is very shrewd and mischievous person. Respondent No.1 without the consent of the plaintiff-appellant in collusion with revenue officials got entered mutation No.1390 on the basis of the aforesaid decree dated 16.9.1995 and got entered his name as owner in possession of 85 kanals 4 marlas bearing Khasra Nos.8//12(8-0), 19(8-0), 22(8-0), 9//21/2(4-9), 22(8-0), 23(8-0), 24(8-0), 25(8-0), 18//3/2(1- 8), 19//2(8-0), 9(8-0), 12(7-7) and 7 kanals 12 marlas land being 152/865 share of 43 kanals 5 marlas compromised in Khewat No.116 bearing Khasra No.7//16(8-0), 17(8-0), 18(8-0), 19//8(7-12), 39//9/2(0-13), 11/2(3- 0), 12(8-0) total measuring 92 kanals 16 marlas and got entered name of plaintiff as owner in possession of 41 kanals 4 marals land bearing Khasra Nos.3//9(8-0), 10(8-0), 12(8-0), 13/1(1-12), 19(8-0), 22(7-12) and 24 kanals land being 480/865 share of 43 kanals 5 marlas land compromised in Khewat No.105/116 total measuring 65 kanals 4 marlas land instead of 79 kanals land and got this mutation No.1390 sanctioned on 27.6.1996 and thus, respondent No.1 wanted to grab 13 kanals 16 marlas of land of the plaintiff-appellant and the aforesaid mutation was sanctioned against the judgment and decree dated 16.9.1995 and was without jurisdiction because the revenue Authorities without any registered document of transfer could not reduce 13 kanals 6 marlas land of the plaintiff and could not give the aforesaid land in excess to defendant-respondent No.1 and the aforesaid mutation No.1390 which was wrong against law and the subsequent resultant entries of revenue record were liable to be set aside and were not binding upon the rights of the appellant, who was owner in possession of his land measuring 13 kanals 16 marlas which was wrongly mutated in favour of respondent No.1. It was the further case of the appellant that he had alienated approximately 8 acres of land and when in February, 2006, he thought of alienating his remaining 13 kanals 16 RSA No.521 of 2010(O&M) 3 marlas of land, Patwari Halqa told him that he had no more land in the revenue record in his name and thus, he came to know the unlawful and illegal mutation and subsequent illegal entries in revenue record. He requested respondent No.1 to get these revenue entries corrected in the revenue record in his favour. However, he refused to admit the aforesaid claim of the plaintiff and threatened to alienate his land to some other person. Hence, the present suit. Upon notice, respondent No.1 resisted the the suit raising various preliminary objections. On merits, it was admitted that the land was received by the plaintiff and defendant No.1 vide judgment and decree dated 16.9.1995. However, it was further admitted that some land out of the aforesaid land was of superior quality and other was of inferior quality and therefore, the plaintiff in a mutual partition with respondent No.1, executed an affidavit dated 31.5.1996 which was duly attested by Executive Magistrate and was handed over to Halqa Patwari along with judgment and decree dated 16.9.1995 for sanction of mutation and on the basis of the aforesaid decree and the affidavit, the revenue Authorities sanctioned the mutation No.1390 dated 27.6.1996. The plaintiff accepted the mutation and had alienated his entire land of his share as per mutation No.1390 and had no concern whatsoever with the disputed property. The mutation was legally sanctioned on the basis of Civil Court decree and the mutual partition as per the affidavit (Ex.D1) and the same was acted upon by the parties and therefore, there was no question of any fraud and misrepresentation etc. and the suit was liable to be dismissed. On the basis of the pleadings, the following issues were framed by the trial Court: “1. Whether the mutation No.1390 sanctioned on 27.6.1996 is liable to be set aside as it is illegal and not RSA No.521 of 2010(O&M) 4 passed upon correct facts, as prayed? OPP 2. If issue No.1 is proved then whether defendant No.1 can be restrained from alienating the suit property? OPP 3. Whether the suit is maintainable in the present form? OPP 4. Whether the suit of the plaintiff is false and frivolous and liable to be dismissed as such? OPD 5. Relief.” Both the parties led their respective evidence. On the basis of the evidence and after hearing learned counsel for the parties, issues No.1 to 3 were decided against the plaintiff while issue No.4 was decided against the defendant being not pressed and in the result, the suit of the plaintiff was dismissed with costs vide judgment and decree dated 21.10.2008. Feeling aggrieved, the plaintiff filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 14.12.2009. While upholding the findings of the trial court, the Lower Appellate Court observed as under: “Admittedly, the plaintiff and defendant No.1 are real brothers who had partitioned the land of their share measuring 158 kanals from the other share holders vide judgment and decree dated 16.9.1995. The stand taken up by the plaintiff-appellant as argued by his counsel Sh. C.L. Narang, Advocate is that the appellant-plaintiff never executed the affidavit Ex.D1 regarding the mutual partition of suit land along with defendant No.1 as shown in mutation No.1390 dated 27.6.1996 vide which specific RSA No.521 of 2010(O&M) 5 khasra number of the land measuring 79 kanals have been shown in the possession of the defendant No.1 while the remaining specific khasra number of land measuring 65 kanals 4 marlas have been shown in the possession of the plaintiff out of the total land measuring 158 kanals received by the parties by virtue of the judgment and decree dated 16.9.1995. This plea cannot be accepted in view of the fact that the execution of the affidavit Ex.D1 has been duly proved from the statements of DW1 Shamsher Singh, Handwriting and Finger Print Expert and Sh.B.S Sandhu, Advocate DW2 which are further corroborated by the version of Sucha Singh DW3 and, therefore, defendant No.1 was not required to examine the attesting authority or the scribe of the affidavit to prove the execution of the affidavit Ex.D1. The plaintiff has alleged that defendant No.1 has procured his thumb impressions upon stamp paper in connection with the criminal litigation but the plaintiff has not produced any documentary evidence in support of the fact that any criminal proceedings were pending between them in any court of law for which his thumb impressions upon blank stamp papers were required by the defendant. A perusal of the affidavit Ex.D1 shows that it was a memorandum of partition which was arrived at between the plaintiff and defendant No.1 which is not bad for want of registration. Admittedly, mutation No.1390 has been sanctioned after the execution of the affidavit dated 13.5.1996 Ex.D1 but in column No.13 of RSA No.521 of 2010(O&M) 6 the mutation reference has only been made to the judgment and decree dated 16.9.1995 and not to the affidavit dated 31.5.1996 but the fact remains that affidavit dated 31.5.1996 Ex.D1 is also the basis of mutation No.1390 which is clear from the fact that it has been reflected in the Parat Sarkar and the original affidavit was produced from the official record which is being maintained by the revenue agency and thus, the mutation in question which was sanctioned on the basis of the judgment and decree and the affidavit showing mutual partition between the parties is perfectly legal and valid which is binding upon the rights of the parties. It is only due to this reason that after the sanction of mutation No.1390 on 31.5.1996 the plaintiff admittedly disposed of his share of the entire land. A perusal of the sale deed and the mutations on record vide which he had disposed of his property shows that the property alienated by him are exactly the same which has devolved upon him by virtue of the family partition arrived at between the parties on the basis of affidavit Ex.D1 and shown in the mutation No.1390. The plaintiff is not in possession over the suit land as he had already sold his entire land on the basis of the mutation No.1390 long back in the year 2003. Even PW1 in his cross- examination has admitted that he is residing at Ratia since the year 2003 where he was plying a truck which had already been sold by him one year back. The plaintiff had challenged the mutation No.1390 dated RSA No.521 of 2010(O&M) 7 27.6.1996 by way of filing the present suit on 4.3.2006 after the expiry of about 10 years and, therefore, he cannot be allowed to say that he came to know about the mutation No.1390 dated 31.5.1996 in February, 2006 and thus, the plaintiff has no cause of action and locus standi to file the present suit which is not maintainable in the present form as he is having no concern with the suit land in any manner. Learned counsel for the appellant has placed reliance on the case law reported in Anand Sawrup Data versus Punjab National Bank 1997(3) RCR (Civil) 437, Gopal Singh (died) through his LRs versus Punjab State 1992 (2) Recent Revenue Reports 44, D. Agastin versus Devasagayan 1999 (4) Recent Civil Reports 134, G. Sarangapani versus H. Kanakaiah & ors. 1995 (3) Recent Revenue Reports 60, Bankey Bihari Versus Surya Narain alias Munnoo 1999(3) RCR (Civil) 469 and Roop Singh versus Murti Sri Radha Krishan Ji 2009 (3) Civil Court Cases 676 (P&H) in support of his contention. There is no dispute about the proposition of law laid down in the aforesaid authorities but the same are not applicable in the facts and circumstances of the instant case where it has been duly proved that the plaintiff has no right, title or interest in the suit land which is owned and possessed by defendant No.1. Taking this view of the matter, I am of the view that the learned trial Court has rightly appreciated the evidence on record in its true perspective while deciding the RSA No.521 of 2010(O&M) 8 issues and, therefore, the findings recorded by the learned trial Court on all the issues, are, hereby affirmed and consequently, the judgment and decree dated 21.10.2008, is, hereby, affirmed.” Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that as per the judgment dated 16.9.1995, the appellant was entitled to half share of the land measuring 158 kanals. Admittedly, the appellant had sold only 65 kanals 4 marlas of land and thus, land measuring 13 kanals 16 marlas of his share was remaining and therefore, keeping in view this fact alone, the judgment and decrees of the Courts below cannot be sustained. Elaborating further, learned counsel for the appellant has argued that mutation in question for less share of the appellant could not be sanctioned on the basis of affidavit Ex.D1 which was an unregistered document and the Courts below were not justified in relying upon the same and thus, the appellant was entitled to the relief as claimed. On the basis of the argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the mutation in question through which 13 kanals of more land has been mutated in the name of respondent No.1 although it fell to the share of the appellant as per court's decree dated 16.9.1995 could be sanctioned on the basis of affidavit (Ex.D1) which is unregistered document? (ii) Whether both the learned courts below are justified in law in relying upon affidavit (Ex.D1) for deciding the case without the proof its execution RSA No.521 of 2010(O&M) 9 according to law? (iii) Whether both the learned courts below have misappraised the evidence and the law points brought before them by the parties?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees. It is not in dispute that vide judgment and decree dated 16.9.1995, the appellant and respondent No.1 had received land measuring 158 kanals in equal shares comprised in Khasra Nos.3//9(8-0), 10(8-0), 12(8-0), 13/1(1-12), 19(8-0), 22(7-12), 9//21 min south (4-9), 22(8- 0), 23(8-0), 24(8-0), 25(8-0), 18//3/2(1-3), 8//12(8-0), 19(8-0), 22(8-0), 19//2 (8-0), 9(8-0), 12(7-7) measuring 126 kanals 8 marlas and 31 kanals 12 marlas land being 632/865 share of 43 kanals 5 marlas comprised in Khewat No.76 Khatauni No.124 kitat 7 as per jamabandi for the year 1988- 89 situated in village Leharia. It is also not in dispute that on the basis of the impugned mutation No.1390 dated 27.6.1996 land measuring 65 kanals 4 marlas comprised in specific khasra Nos.3//9(8-0), 10(8-0), 12(8- 0), 13/1(1-12), 19(8-0), 22(7-12) and 24 kanals land being 480/865 share of 43 kanals 5 marlas land compromised in Khewat No.105/116 was entered in the name of the appellant. Though the appellant has disputed the admissibility of the affidavit dated 31.5.1996 Ex.D1 executed by him giving consent to enter the aforesaid land in his name and the remaining land in the name of respondent No.1 but he has not disputed the execution thereof. It is also not in dispute that the plaintiff-appellant has sold his entire land as entered in his name on the basis of the aforesaid impugned mutation on different dates yet he never raised any objection of entering less land in his favour at that time. It is only when he sold his entire land as entered in his name on the basis of mutation No.1390 dated 27.6.1996 he RSA No.521 of 2010(O&M) 10 raised the question of illegality of the aforesaid mutation on the ground that he was given less land. There is no rebuttal to the argument of the respondent that a mutual partition was entered into between him and the appellant on the basis of affidavit Ex.D1. A perusal of the sale deed and the mutations on record vide which he had disposed of his property shows that the property alienated by him is exactly the same which has devolved upon him by virtue of the family partition arrived at between the parties on the basis of affidavit Ex.D1 and shown in the mutation No.1390. The plaintiff is not in possession over the suit land as he had already sold his entire land on the basis of the mutation No.1390 long back in the year 2003. Further Ex.D1 being a memorandum of partition which was arrived at between the brothers cannot be held to be bad for want of registration. Admittedly, mutation No.1390 was sanctioned on the basis of the aforesaid agreement affidavit Ex.D1 and the reference of the same finds mention and reflected in the Parat Sarkar (copy of the order pasted in the revenue record of mutation) and the original affidavit was produced from the official record which was maintained by the revenue agencies and thus, the mutation in question which was sanctioned on the basis of decree and the affidavit showing mutual partition between the parties, was perfectly legal and is binding upon the rights of the parties as of this mutation only, the plaintiff- appellant had admittedly disposed of his share of the entire land by selling specific khasra numbers as entered in his name. Thus, for the reasons recorded, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. February 5, 2010 (RAKESH KUMAR GARG) ps JUDGE