RSA No. 2293 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2293 of 2009 Date of Decision: 12.10.09 1. Sohan Lal son of Sunder Singh; 2. Bal Kishan; 3. Suresh; 4. Shiv; all sons of Late Sh. Banarsi Dass, residents of village Mandhar, Sub Tehsildar Radaur, Tehsil Jagadhri, District Yamuna Nagar. ... Appellants Versus 1. Yash Pal: 2. Vart Pal; 3. Subhash; 4. Jai Dev; all son of Rameshwar son of Murli, all residents of village Mandhar, Sub Tehsildar Radaur, Tehsil Jagadhri, Distt. Yamuna Nagar. ...Respondents 5. Brij Bhushan; 6. Jagjit; both son of Sunder Singh, residents of village Mandhar, Sub Tehsildar Radaur, Tehsil Jagadhri, District Yamuna Nagar. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.M. Sharma, Advocate, for the appellants. RSA No. 2293 of 2009 2 SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 02.08.06, rendered by the Court of Civil Judge (Senior Division), Jagadhri, vide which, it dismissed the suit of the plaintiffs, and the judgment and decree, dated 18.03.08, rendered by the Court of Additional District Judge, Yamuna Nagar, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Ram Singh, father of the plaintiffs, was the owner in possession of a part of the suit land. Being illiterate, he was having no knowledge, as to how, the land, could be transferred. It was stated that Gainda Ram and Sheo Ram, the father of the defendants, played fraud, on Ram Singh, as a result whereof, an alleged oral exchange took place and mutation was entered. Ram Singh, was not aware, as to what was actually happening. It was further stated that Ram Singh, had no legal necessity, to relinquish his possession, over the land, in dispute, in exchange. When the aforesaid fact, came to the knowledge of the plaintiffs, a civil suit, was filed, against defendant No. 1, and his sons, for permanent injunction, which was pending, at the time of filing the instant suit. It was further stated that the suit property, being ancestral, no exchange thereof, could be made by Ram Singh. The defendants, were many a time asked, to admit the claim of the plaintiffs, as owner, in respect of the suit land, but to no avail. Ultimately, a suit for declaration, was filed. RSA No. 2293 of 2009 3 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was barred by time. It was further pleaded that the plaintiffs, were estopped, from filing the suit. It was stated that exchange of the land, in dispute, was valid, and the plaintiffs, being successors of Ram Singh, were bound by it. It was further stated that the said exchange of the land, in dispute, was never challenged by the plaintiffs, nor their predecessor. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the original verbal exchange dated 09.10.54, between Ram Singh, Gainda Ram and Rameshwar sons of Murli residents of village Mandhar, regarding the suit land, is illegal, null and void as alleged? OPP (IA) Whether defendant has become owner of the suit property by way of adverse possession as alleged? OPD (ii) Whether the suit is time barred? OPD (iii) Whether the plaintiffs are estopped from filing the present suit by their own act, and conduct? OPD (iv) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the RSA No. 2293 of 2009 4 plaintiffs/appellants, which was also dismissed, by the Court of Additional District Judge, Yamuna Nagar, vide judgment and decree dated 18.03.08. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants, submitted that the Courts below, were wrong, in coming to the conclusion, that the suit, was barred by time. He further submitted that, as and when, the plaintiffs/appellants, came to know of the alleged oral exchange, they filed the suit for setting aside the same. He further submitted that the judgements and decrees of the Courts below, being the result of misreading and misappreciation of evidence, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the RSA No. 2293 of 2009 5 first Appellate Court, even if, the same are grossly erroneous, as the legislative intention is very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court, in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. From the perusal of the judgements of the Courts below, it is evident, that there was an oral exchange, in respect of the property, in dispute, between Gainda Ram and Rameshwar, on the one hand, and Ram Singh, on the other hand. In the said oral exchange, Ram Singh, predecessor-in-interest of the plaintiffs, got 3 ½ acres of land, and he gave 11 acres of land, to Gainda Ram, and Rameshwar. Mutation No. 698, copy whereof, is P13, was sanctioned of the said oral exchange. It was duly implemented, in the revenue record. In the jamabandi, for the year 1968-69, exhibit D8, Gainda Ram and Rameshwar, were recorded to be the owners in possession of the property, which came, to them, in exchange, from Ram Singh. Similar, entries, were incorporated, in the jamabandis, for the year 1976-77, exhibit D9, for the year 1983-84, exhibit D11, for the year 1988-89, exhibit D12, for the year 1993-94, exhibit D13, for the year 1998-99, exhibit D14, and for the year 2003-04, exhibit D15. Similarly, the land, which was given, in exchange, to Ram Singh, predecessor-in-interest of the plaintiffs, by Gainda Ram etc., was recorded, as his ownership and the ownership of his sons, and they were also shown to be in possession thereof. The Courts below, were, RSA No. 2293 of 2009 6 thus, right in coming to the conclusion, that an oral exchange took place, between the parties, as a result whereof, the defendants/respondents, became the owners of the land, measuring 11 acres, which came to them, in exchange, and Ram Singh, predecessor- in-interest of the plaintiffs, became owner, to the extent of 3 ½ acres, which came, to him, in that exchange. Presumption of truth is attached to the entries, contained in the jamabandis, until otherwise proved. No cogent and convincing evidence, was produced, to rebut the presumption of truth, attached to such entries. The findings of the trial Court, on the aforesaid aspects of the matter, are correct. 11. The oral exchange, took place, on 09.10.54. Mutation, was also sanctioned, on the basis of such exchange immediately. Thereafter, it was implemented, in the revenue record. It, therefore, could not be said that, it was only, in the year 2000, that the successors-in-interest of Ram Singh, came to know about the exchange, and, thus, cause of action accrued to them, to challenge the same. It could not be imagined, that the land, which was, given, in exchange, by Ram Singh, to Gainda Ram etc. and they were shown to be the owners in possession of the same, in the revenue record, did not come to his notice, and the notice of the plaintiffs, who are his sucessors-in-interest, immediately, after the incorporation of the entries in the jamabandis. The suit, having been filed, on 24.03.01, was palpably barred by time. The first Appellate Court, was also right, in holding so. 12. The concurrent findings of fact, recorded by the Courts RSA No. 2293 of 2009 7 below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 12.10.2009 (SHAM SUNDER) Amodh JUDGE