RSA No.2422 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2422 of 1985 Date of decision 30.5.2011 Chandgi Appellant versus Kanhiya Respondent CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Gopi Chand Bhalla,Advocate for the appellant Mr. Sanjay Mittal,Advocate for the respondent ...... JITENDRA CHAUHAN.J (Oral) This Regular Second Appeal has been preferred by plaintiff- appellant Chandgi against the decrees and judgments of the courts below. Plaintiff-appellant filed a suit for declaration on the basis of entries in his favour in the Khasra Girdawari pertaining to the year 1964- 65. He claimed ownership as co-sharer in 8 kanals of agricultural land bearing khewat No.77, khatoni No.120 mustil No. 52 Khasra No. 15 situated in village Siswa, District Mahindergarh. His case was that defendant Nos. 1 and 2 in collusion with Patwari Halqa, got the khasra girdawari changed in their favour for the year pertaining to 1964-65 and on the basis of those entries, they threatened to dispossess the plaintiff from the land in dispute. His further case was that the defendant Nos. 1 and 2 filed an application under section 145 Cr.P.C before the Sub Divisional Magistrate, Rewari, which was decided in their favour on 10.12.1968.The disputed land was handed over the defendant No.3, as Sapurdar. Appeal against the said RSA No.2422 of 1985 2 order was also dismissed. It was alleged that khasra girdawari for kharif 1964 and 1965 and also the order u/s 145 Cr.P.C.were null and void. Defendant Nos. 1 & 2 filed written statement contesting the suit on the ground that plaintiff never remained in possession of the disputed land and rather the defendants No. 1 and 2 were in continuous possession of the same as owners. It is further submitted that the possession of the disputed land was delivered to them in pursuance of the final order passed in the proceedings under section 146 Cr.P.C, on 10.4.1974. It is stated that the plaintiff could not succeed in getting the Khasra Girdawari changed in his name as he failed in proceedings under section 145 Cr.P.C. In replication filed by the plaintiff, he reiterated his claim. From the pleadings of the parties, on 23.11.1974 the following issues were framed- 1. “Whether the plaintiff is owner as co-sharer of the suit property? 2. Whether the plaintiff is entitled to the relief claimed for? 3. Relief” The Ld.trial court dismissed the suit of the plaintiff vide judgment dated 25.11.1981. Against the judgment and decree, the plaintiff went in appeal. The Ld. Appellate Court remanded back the case to the trial court for re-trial of the same after re-framing the issues, which are as under:- 1. Whether the plaintiff is a co-sharer in the land in dispute? OPP 2. Whether he has been in possession thereof as a co- sharer?OPP 3. Whether the entries in the revenue record about the RSA No.2422 of 1985 3 cultivation of kharif 1974 to kharif 1975 are null and void as alleged by the plaintiff in para No.3 of the plaint?OPP 4. Whether order dated 10.4.1974 of SDM,Rewari is also null and void as alleged in para 5 and 6 of the plaint?OPP 5. Whether the plaintiff is entitled for possession in the alternative?OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the defendants are entitled for special costs in case of dismissal of the suit and if so, to what extent?OPD 8. Relief.” The suit of the plaintiff was dismissed in default on 27.5.1978. An application for restoration of the suit was filed on 29.5.1978, which was also dismissed. Aggrieved against which, the plaintiff filed an appeal for restoration of his suit, which was allowed on 29.5.1981 and the suit of the plaintiff was restored to its original number. The Ld.trial court after considering the evidence adduced on record, dismissed the suit of the plaintiff on 25.11.1981. Plaintiff preferred Ist appeal, which was also dismissed on 4.5.1985, by the Ld. Ist Appellate Court, affirming the findings of the ld. Trial court. Being unsuccessful in both the courts below, the plaintiff preferred this regular second appeal, which admitted on 19.2.1986. Learned counsel for the appellant submits that both the courts RSA No.2422 of 1985 4 below have wrongly decided Issue Nos. 1 to 5 against the plaintiff- appellant. He further submits that the judgment and decree of the Ist Appellate Court is vitiated as the Ist Appellate Court at one stage of proceedings of the civil suit, dealt with the matter as Civil Judge and dismissed the suit in default, on 27.5.1978. An application for restoration of the suit was also dismissed and that order was set aside by the District Judge, Narnaul on 29.5.1981. Learned counsel for the respondents submits that both the courts below have decided the Issue Nos. 1 to 5 in favour of the defendants and the judgments are based on concurrent findings of fact. I have heard the learned counsel for the parties and perused the record. From the perusal of the record, it is established that the defendants were in continuous possession of the land and the entries stood in their name till the disputed period i.e. 1964-65. No evidence has been adduced by the plaintiff-appellant to show as to how he came in possession of the land. The proceedings under section 145 Cr.P.C, were initiated by the plaintiff-appellant, which were answered in favour of the defendant- respondents on 10.12.1968 as is clear from the Ex. D-4. The said order passed by the competent authority under section 145 Cr.P.C has not been challenged till date. The same has attained finality. The present suit was filed on 12.6.1974 after approximate delay of 6 years. The plaintiff-appellant has admitted that the possession was delivered to Sapurdar as interim arrangement in proceedings under section 145 Cr.P.C. and ultimately it was delivered to the defendant-respondents in proceedings under section 146 Cr.P.C. The defendant-respondents were in RSA No.2422 of 1985 5 possession of the suit land prior to Kharif 1964-65. The Ld.trial court rightly held that the plaintiff could not show as to how khasra girdawari entry came in his favour for the first time in kharif,1964, and rightly dismissed the suit. The ld. Ist Appellate Court also held that on the basis of documentary evidence on record, it is proved that the plaintiff, Chandgi never remained in possession of the land in dispute and the defendants Chote Lal and Hira Singh remained in possession of the same. The land was allotted to them in consolidation proceedings, which is clear from Ex. D4. The findings of ld.trial court were affirmed by the ld.Appellate Court. The second argument of the learned counsel that the judgment and decree of the Ist Appellate Court is vitiated, is repelled on the ground that firstly the suit was not decided on merits but it was simply dismissed in default by the Court of Sub Judge. The plaintiff-appellant should have taken this objection before the Ist Appellate Court, the then Additional District Judge,Narnaul, immediately before commencement of the arguments. Once the plaintiff-appellant have submitted to the jurisdiction of court of the Additional District Judge, in Ist Appeal, and having participated in the proceedings, now in Regular Second Appeal, he cannot be allowed to raise this kind of objection. The plaintiff-appellant, while arguing in Ist appeal, was aware of the fact that the same Presiding Officer had dealt with the case as Sub Judge. The counsel for the plaintiff-appellant has failed to show any prejudice or miscarriage of justice while dismissing the suit in default. The Ld.Sub Judge has not applied his mind on the merits of the case. So this objection is not available to the appellant at this stage. The findings arrived at by both the courts below are concurrent findings of fact. No justification is made to interfere in the same. RSA No.2422 of 1985 6 No question of law much less a substantial question of law arises in this appeal. Accordingly the same is dismissed. The decrees and judgments of both the courts below are affirmed. No order as to costs. (JITENDRA CHAUHAN) 30.5.2011 JUDGE MS Note: Whether to be referred to the Reporter? Yes/No.