R. S. A. No. 2216 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2216 of 2005 Date of Decision : January 15, 2010 Gurmail Ram and others .... Appellants Vs. Amrik Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amar Vivek, Advocate for the appellants Mr. Mohnish Sharma, Advocate for Mr. Narender Hooda, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Defendants are in second appeal assailing judgment and decree dated 26.05.2005 passed by the Lower Appellate Court i.e. learned Additional District Judge, Nawan Shahr. Plaintiff Amrik Singh filed suit for permanent injunction restraining the defendants from interfering in the possession of the plaintiff and from raising any construction over the suit land measuring 8 kanals comprised of khewat no.92 khatoni no.148 and 149 rect. no. 21 killa nos. 6/2 (2-15), 15/1 (1-1), rect. no. 22 killa no. 10 min (4-0), rect. no. 136 (0-4), situated in Village Chak Kalal, Tehsil and District Nawan Shahr, alleging that plaintiff is in exclusive possession of the suit land as co-sharer out of R. S. A. No. 2216 of 2005 2 total joint land measuring 67 kanals 9 marlas. The plaintiff purchased the suit land from Hazura Singh, who was in exclusive possession of the suit land and delivered possession thereof to the plaintiff, but the defendants threatened to raise construction over the suit land without getting the joint land partitioned. The defendants inter alia pleaded that plaintiff and defendant no.1 were owners of the land in Village Chak Kalal and the same was partitioned vide memo of partition dated 26.05.1972 and defendant no.1 is in exclusive possession of killa no.22//10 measuring 4 kanals along with other land and the defendants do not intend to raise construction over any other land. Learned Civil Judge (Senior Division), Nawan Shahr, vide judgment and decree dated 06.01.2003 partly decreed the suit regarding 4 kanals land comprised of killa nos.6/2 (2-15), 15/1 (1-1) and 136 (0-4), but dismissed the suit regarding 4 kanals land of killa no.22//10 min (4-0). However, in first appeal preferred by the plaintiff, learned Additional District Judge, Nawan Shahr, vide judgment and decree dated 26.05.2005, decreed the suit of the plaintiff in toto even regarding land of killa no.22//10 measuring 4 kanals. Feeling aggrieved, the defendants have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that in jamabandi Ex.P-5, appellant no.1 has been shown to be in possession of 5 kanals land of killa no.22//10 min., whereas plaintiff has been shown to be in possession of 3 kanals land of killa no.22//10 min. and therefore, suit of the plaintiff could be decreed regarding 3 kanals land and not regarding 4 kanals land, out of killa no.22//10. It is submitted that there is no dispute regarding the remaining 4 kanals land, for which the suit was decreed by the trial court. It is submitted that the dispute is regarding one kanal land only R. S. A. No. 2216 of 2005 3 out of killa no.22//10. Learned counsel for the appellants, relying on a judgment of Himachal Pradesh High Court in the case of Suresh Chand and others vs. Gurdas Ram and others reported as 2004 (1) CLJ (H.P.) 155, contended that entry in jamabandi Ex.P-5 carries presumption of correctness, which has not been rebutted. The aforesaid contention, although apparently attractive, cannot be accepted. Before proceeding further, it may be mentioned that defendants no.2 and 3 are sons of defendant no.1. The defendants themselves pleaded in the written statement that partition has taken place vide memorandum of partition dated 26.05.1972. The said memorandum of partition has been produced in evidence as Ex.P-2. Perusal thereof reveals that the plaintiff as well as defendant no.1 got 4 kanals land each out of killa no.22//10. Consequently, this document, which was pleaded by the defendants themselves, fully rebuts the presumption of correctness attached to entry in jamabandi Ex.P-5. This document reveals beyond doubt that the plaintiff is in possession of 4 kanals of land and also defendant no.1 is in possession of 4 kanals of land out of killa no.22//10. Faced with the aforesaid situation, learned counsel for the appellants contended that in memorandum of partition, it has been mentioned that if there is any shortfall in the land, the same shall be made up from the shareholders of killa no.10 and since there was shortfall of land of defendant no.1 to the extent of one kanal, he was given 5 kanals land out of killa no.22//10. The contention has been noticed simply to be rejected because there is no pleading to this effect. The contention being completely beyond pleadings, is unsustainable. There is also no cogent evidence to substantiate the aforesaid contention. In addition to the aforesaid, the defendants in the written statement themselves claimed possession of defendant no.1 over 4 kanals land only out of killa no.22//10. The defendants did not claim possession over 5 kanals land out of the said killa. Learned counsel for the appellants, R. S. A. No. 2216 of 2005 4 however, contended that admission to be relied should be concise and deliberate act and the pleading or a document has to be construed or read as a whole to see its effect, as observed by Delhi High Court in the case of Vijay Gupta vs. Ashok Kumar Gupta reported as AIR 2007 (Delhi) 166. There is no dispute with the aforesaid observation. However, in the instant case, the defendants have themselves pleaded their possession over 4 kanals land only out of killa no.22//10. Consequently, the defendants cannot now plead that defendant no.1 is in possession of 5 kanals land out of killa no.10. Learned counsel for the appellants also contended that defendants have pleaded exclusive possession of defendant no.1 over killa no.22//10 min. measuring 4 kanals along with other land and it would mean that the defendants pleaded exclusive possession of defendant no.1 over 5 kanals of land out of killa no.10. The contention is completely absurd and frivolous and needs to be rejected outrightly. If defendants wanted to plead exclusive possession of defendant no.1 over 5 kanals land out of killa no.10, nothing prevented them from doing so and it is also not explained why they claimed 4 kanals land only instead of 5 kanals land out of killa no.10 to be in exclusive possession of defendant no.1 in the written statement. The matter does not rest here. Realizing their mistake that they had pleaded possession of defendant no.1 over 4 kanals land only out of killa no.10, the defendants even applied for amendment of written statement to plead possession of defendant no.1 over 5 kanals of land instead of 4 kanals land out of killa no.10, but the said amendment was not allowed. It thus becomes apparent that even the defendants knew that they have pleaded possession of defendant no.1 over 4 kanals land only and not over 5 kanals land out of killa no.10. Consequently, it does not lie in the mouth of defendants to plead that defendant no.1 is in exclusive possession of 5 kanals land out of killa no.10. Learned counsel for the appellants also contended that the R. S. A. No. 2216 of 2005 5 plaintiff sought relief of permanent injunction only, but the Lower Appellate Court has granted relief of declaration as well by holding the plaintiff to be in possession of 4 kanals land out of killa no.22//10. The contention is again completely devoid of force. Without giving finding regarding possession, relief of injunction could not have been granted. Consequently, the finding regarding possession of plaintiff cannot be deemed to be relief of declaration. For the reasons recorded herein above, I find that there in no infirmity or illegality in the impugned judgment of Lower Appellate Court. The same is based on proper appreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely frivolous and devoid of merit and is accordingly dismissed with cost quantified at Rs.10,000/-. January 15, 2010 ( L. N. MITTAL ) monika JUDGE