R. S. A. No. 2918 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2918 of 2008 Date of Decision : April 28, 2010 Ajit Kumar .... Appellant Vs. Ram Parshad and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kul Bhushan Sharma, Advocate for the appellant. Mr. Arun Yadav, Advocate for respondents no.1 and 2. * * * L. N. MITTAL, J. (Oral) : Defendant no.3 Ajit Kumar has filed the instant second appeal having remained unsuccessful in both the courts below. Suit was filed by respondents no.1 and 2 namely Ram Parsad and Hoshiar Singh against Sujjan Singh (since deceased and represented by respondents no.3 to 7 as his legal representatives), Raghunath Singh (since deceased and represented by respondents no.8 to 12 as his legal representatives) and Ajit – defendant no.3/appellant. The plaintiffs alleged that they are in possession of the suit plot and defendants have no concern therewith, but defendants no.1 and 2 have executed sale deed dated 14.03.1996 in respect of the suit plot in favour of defendant no.3. The said sale deed is illegal and not binding on the plaintiffs. The plaintiffs R. S. A. No. 2918 of 2008 2 accordingly sought declaration that they are owners in possession of the suit plot and that defendants have no concern therewith and that the sale deed dated 14.03.1996 is not binding on the rights of the plaintiffs and is null and void. Permanent injunction was also sought restraining the defendants from interfering in the possession of the plaintiffs over the suit plot. The defendants inter alia pleaded that defendants no.1 and 2 were owners in possession of the suit plot and they have rightly sold it to defendant no.3 vide sale deed dated 14.03.1996. It was denied that the plaintiffs are owners in possession of the suit plot. It was pleaded that the plaintiffs had already sold their land to one Jagdish vide sale deed dated 30.10.1967. Various other pleas were also raised. Plaintiffs filed replication wherein they pleaded that land sold by them vide sale deed dated 30.10.1967 in favour of Jagdish was of Ahata No.52 Ghar No.52, in which plaintiffs had half share whereas suit plot bears Ahata No. 50 Ghar No. 50, which was recorded in the name of plaintiffs' forefather Billu son of Hargobind. Learned Civil Judge (Senior Division), Rewari, vide judgment and decree dated 22.07.2005, decreed the plaintiffs' suit. First appeal preferred by defendant no. 3 has been dismissed by learned Additional District Judge, Rewari, vide judgment and decree dated 03.04.2008. Feeling aggrieved, defendant no.3 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the plaintiffs did not plead in the plaint that the suit plot bears Ahata No.50 Ghar No.50 and therefore, this plea taken for the first time in replication cannot be allowed to be raised by the plaintiffs. The contention, although apparently attractive, cannot be accepted. The defendants themselves pleaded in their written statement that plaintiffs had already sold their land to one Jagdish vide sale deed dated 30.10.1967. In response thereto, the R. S. A. No. 2918 of 2008 3 plaintiffs, in the replication, clarified that the land sold to Jagdish vide sale deed dated 30.10.1967 was of Ahata No.52 Ghar No.52, in which plaintiffs had half share, whereas the suit plot bears Ahata No.50 Ghar No.50. It is thus apparent that this plea was taken by the plaintiffs in their replication only in response to the plea raised by the defendants in their written statement. Moreover, the defendants were aware of the aforesaid plea taken by the plaintiffs in the replication, but defendants neither filed rejoinder thereto nor objected to the said plea at any stage. The parties also led evidence in support of their pleadings, but no objection, as now sought to be raised, was ever raised at the trial stage. Learned counsel for the appellant next contended that the suit property is not proved to be part of Ahata No.50 Ghar No.50. In this respect, reference was made to site plan Ex.PW-3/1, wherein disputed plot has been shown as a rectangular plot and Aks Shajra Ex.P-B, wherein Ahata No.50, Ghar No.50 is shown in triangular shape. However, this contention also cannot be accepted. Plaintiff no.1 Ram Parsad, while appearing as PW- 4, stated in cross-examination that the disputed plot bears No.50. This statement was not challenged by the defendants in any manner. It was not even suggested to him that the disputed plot does not bear No.50. Even defendant no.3-appellant, in his statement in the witness box, did not depose that the disputed plot does not bear Ahata No.50 Ghar No.50. Thus, the plaintiffs' pleading and evidence that the disputed plot bears Ahata No.50 Ghar No.50 stands unrebutted. Consequently, it cannot be said that the plaintiffs have failed to prove that the disputed plot bears Ahata No.50 Ghar No.50. Learned counsel for the appellant also contended that the courts below have relied on document `Misal Pamaish Abadi', but the said document is neither certified copy nor it has been proved not it is document of title. The contention is devoid of merit. The plaintiffs have relied upon two documents - `Misal Pamaish Abadi' Ex.P-A and `Misal Pamaish Abadi' R. S. A. No. 2918 of 2008 4 Ex.P-B – both mentioning plaintiffs' forefather Billu to be owner of Ahata No.50 Ghar No.50. Both these documents are certified copies and being public documents, certified copies thereof are per se admissible in evidence. In fact, these certified copies are in Urdu and transliterations thereof in Hindi have also been placed on record as Ex.P-A/T and Ex.P-B/T. Obviously, the said transliterations could not be certified copies. However, certified copies of original documents in Urdu have been produced and are per se admissible in evidence. Statements of both the plaintiffs that Ballu was their forefather also stand unchallenged. `Misal Pamaish Abadi' of course are not documents of title, but are certainly evidence of title. These documents are of the year 1865 and stand unchallenged during this long period and therefore, the said documents are sufficient to prove the plaintiffs' case in the absence of any evidence to the contrary. Both the courts below have appreciated the evidence on record and come to concurrent finding that plaintiffs are proved to be owners in possession of the suit plot. The said finding cannot be said to be perverse or illegal. On the other hand, defendants have not led any evidence whatsoever to depict that defendants no.1 and 2 were owners in possession of the suit plot. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed. April 28, 2010 ( L. N. MITTAL ) monika JUDGE