Regular Second Appeal No. 62 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 62 of 2007 Date of decision : January 15, 2010 Babu Ram and others ....Appellants versus Tehsildar Sales, Rehabilitation Department and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rajiv Sharma, Advocate, for the appellants Mr. RS Rana, Advocate, for respondent nos. 2 and 3 None for respondent no. 1 L.N. Mittal, J. (Oral) Plaintiffs Babu Ram etc. having remained unsuccessful in both the courts below have filed the instant second appeal. Plaintiffs filed suit for declaration and permanent injunction alleging that they are in possession of the suit land measuring 6 kanals 19 marlas as Dholidars since the time of their ancestors, but defendant no. 2 in collusion with defendant no. 1 i.e. Tehsildar Sales got allotted 1 kanal 17 marlas land of Rectangle no. 32 Killa No. 7 out of the suit land. Report No. 438 dated 2.6.1995 was made regarding delivery of possession of the said land measuring 1 kanal 17 marlas to defendant no. 2. The said report has been challenged in the suit being illegal and null and void. During Regular Second Appeal No. 62 of 2007 -2- pendency of the suit, defendant no. 2 alienated a part of the said land to defendant no. 3 vide registered sale deed dated 26.11.1996. By amending the suit, said sale was also challenged being illegal and null and void. The plaintiffs also claimed permanent injunction restraining the defendants from ousting the plaintiffs from the possession of the suit land as Dholidars and from transferring the same to anybody. Defendants, interalia, pleaded that suit land was evacuee property and therefore, vested in Custodian. Defendant no. 2 in open auction held on 11.8.1994 purchased 1 kanal 17 marlas land of Killa No. 7 for Rs 10,000/- and deposited sale price and possession of the said land measuring 1 kanal 17 marlas was delivered at the spot to defendant no. 2 vide report No. 438 dated 2.6.1995 and accordingly, defendant no. 2 became owner in possession of the said land. It was also pleaded that the suit is bad for non-joinder of parties i.e. State of Haryana and Union of India. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Nuh vide judgment and decree dated 10.2.2003 dismissed the suit of the plaintiffs. First appeal preferred by the plaintiffs also stands dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 10.11.2004. Feeling aggrieved, the instant second appeal has been filed. I have heard learned counsel for the parties and perused the records. Learned counsel for the appellants vehemently contended that as per revenue record in the form of jamabandies and khasra girdawaries since 1938-39 on wards, the suit land has been recorded to be in possession of the plaintiffs (including their predecessors) as Dholidars and therefore, Regular Second Appeal No. 62 of 2007 -3- the plaintiffs are entitled to decree as prayed for. On the other hand learned counsel for respondent nos. 2 and 3 contended that defendant no. 2 purchased land measuring 1 kanal 17 marlas of Killa No. 7 in open auction being evacuee property and possession thereof was delivered to him vide impugned report No. 438 dated 2.6.1995 and therefore, plaintiffs have no right in the said land. I have carefully considered the rival contentions. In so far as the land measuring 1 kanal 17 marlas of Rectangle No. 32 Killa No. 7 is concerned, the plaintiffs have not made out a case for the same. The plaintiffs, of course, were recorded to be in possession of the said land also as Dholidars. However, possession of the said land has been delivered to defendant no. 2 after he purchased the same in open auction made by defendant no. 1. The plaintiffs have not led sufficient evidence to prove that actual possession of the said land was not delivered to defendant no. 2 vide report No. 438 dated 2.6.1995. Proclamation regarding delivery of possession of said land was also made by beat of drum and by affixation of notice. There is concurrent finding of fact by both the courts below based on appreciation of evidence that possession of the said land was actually delivered to defendant no. 2 vide aforesaid report. The said finding is not shown to be perverse or illegal nor any substantial question of law arises for determination in the instant second appeal qua said finding. Consequently, the plaintiffs cannot succeed qua aforesaid 1 kanal 17 marlas land out of the suit land. However, the plaintiffs have made out a case for grant of injunction regarding remaining suit land measuring 5 kanals 2 marlas comprised in Rectangle No. 21 Killa No. 1/2 (2-12), Rectangle No. 22, Regular Second Appeal No. 62 of 2007 -4- Killa No. 26(0-14) and 27(1-16) because the plaintiffs including their predecessors are proved to be in possession of the said land since 1938-39 on the basis of consistent revenue entries till the filing of the suit. It is correct that the said land is also recorded to be evacuee property in the revenue record, therefore, the same vested in Custodian. However, the plaintiffs being in well established possession of the said land since long cannot be evicted therefrom except in due course of law and therefore, the plaintiffs are entitled to succeed to this extent. The courts below have not even discussed this aspect of the case and confined their findings to 1 kanal 17 marlas land of Rectangle No. 32 Killa No. 7 only. Consequently, judgments of the courts below suffer from this perversity regarding remaining suit land, giving rise to substantial question of law. For the reasons recorded hereinabove, the instant second appeal is allowed partly. Judgments and decrees of the courts below are modified to the extent that the plaintiffs' suit shall stand partly decreed for permanent injunction restraining defendants from interfering in the possession of the plaintiffs over 5 kanals 2 marlas land comprised in Rectangle No. 21 Killa No. 1/2 (2-12), Rectangle No. 22, Killa No. 26(0-14) and 27(1-16) out of the suit land and from ousting the plaintiffs therefrom except in due course of law. However, the suit shall remain dismissed regarding 1 kanal 17 marlas land of Rectangle No. 32 Killa no. 7 and judgments and decrees of the courts below regarding the same are affirmed. In view of partial success, the parties are left to bear their respective costs throughout. ( L.N. Mittal ) January 15, 2010 Judge 'tiwana' Regular Second Appeal No. 62 of 2007 -5-