R.S.A. No. 1110 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1110 of 2009 (O&M) Date of decision: 10.03.2009 Mohinder Kaur and another ....Appellants Versus Sarwan Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. G.S. Sidhu, Sr. Advocate, with Mr. Vikrant Oberoi, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 13.4.2006 and 9.12.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/appellants for declaration and permanent injunction stands dismissed. The plaintiff/appellants brought a suit claiming therein that plaintiff No. 2 Gurbachan Singh was owner in possession of the agricultural land measuring 115 bighas 3 biswas situated in village Ajrana Kalan, with share in shamlat deh, earlier, in District Kaithal and now in Kurukshetra. In the year 1952, plaintiff No. 2 filed written application with the revenue officer claiming that he made an oral gift of his total land in R.S.A. No. 1110 of 2009 (O&M) -2- favour of plaintiff No. 1 Mohinder Kaur, and also sought sanctioning of mutation in favour of plaintiff No. 1 i.e. appellant No. 1. Mutation No. 1233 was entered in the revenue record in which it was recorded that total land was gifted by plaintiff No. 2 in favour of plaintiff No. 1. The report was attested on the spot and endorsement dated 2.7.1952 was made. It was the case set up by the plaintiffs that while sanctioning the mutation, the revenue officer made interpolation in the mutation entry in his hand and added name of defendant Joginder Pal Kaur in mutation No. 1233 and sanctioned the same in favour of plaintiff No. 1 and defendant in equal shares. It was claimed that Gurbachan Singh plaintiff No. 2 never made any gift in favour of defendant Joginder Pal Kaur. A house was said to have been given to defendant Joginder Pal Kaur in Samrala Town in lieu of maintenance by mother of plaintiff No. 2, which was in possession of defendant. It was claimed that the mutation sanctioned on 3.7.1952 was null and void and not binding on the rights of the plaintiff and did not pass any title in favour of defendant as the total land stood gifted to plaintiff No. 1. It was claimed that the name of defendant was entered in different ink. It was also the case of the plaintiff that the interpolation was never disclosed or read over to plaintiff No. 2 nor his consent was taken. The possession of the land was said to have remained with the plaintiff, which was clear from the subsequent jamabandies. The plaintiff also claimed that the order of revenue officer and the judgment and decree in civil suit No. 272 of 1995, which stood confirmed in appeal by the learned Additional District Judge, proved the possession of plaintiff qua land after gift. R.S.A. No. 1110 of 2009 (O&M) -3- After the consolidation, the plaintiff was granted different land. Out of the allotted land, some land was allotted in the name of defendant on the basis of mutation, but the possession still remained with the plaintiff. It was also the case set up that in the year 1980, the defendant filed application under Section 9 of the Punjab Security of Land Tenures Act, 1953 for ejectment of plaintiff No. 2 on the ground that the defendant is owner in possession and defendant No. 2 is cultivating the land as her tenant, and that plaintiff No. 2 failed to pay rent regularly without sifficient cause. It was thus claimed that the possession of plaintiff No. 2 was admitted. The Assistant Collector passed ejectment order and appeal filed by plaintiff No. 2 was also dismissed. However, in revision, the Commissioner, Ambala held that the possession of plaintiff No. 2 was not as tenant and there did not exist relationship of landlord and tenant between the parties. The revision was recommended to the Financial Commissioner, who remanded the case back to A.C. I G. Thanesar, for fresh decision after taking further evidence. After remand, application for ejectment was dismissed. On appeal, order was reversed by the Collector, but the Commissioner accepted the appeal, which has attained finality. It was pleaded that in all these cases, plaintiff No. 2 denied the title of defendant and had been agitating that he was owner of the suit land. Plaintiff No. 2 filed a civil suit No. 272 of 1995 against the defendant for declaration that he is not tenant of defendant, he further R.S.A. No. 1110 of 2009 (O&M) -4- claimed that his possessory rights have ripened into ownership rights and he has become owner by way of adverse possession. The learned Civil Judge in said suit held that there was no relationship of landlord and tenant between the parties. It was also held that the possession of Gurbachan Singh was not adverse to defendant Joginder Pal Kaur, thus the suit was dismissed. The findings of Civil Court stood confirmed in appeal. The learned Courts had held that Joginder Pal Kaur had become owner by mutation No. 1233. It was further pleaded that after the decision in civil appeal on 24.3.1998, the plaintiffs through their counsel inspected the original record of mutation No. 1233, which was attested on 3.7.1992, and found that there was interpolation in mutation and the name of defendant was added later on without the consent and knowledge of plaintiff No. 2. Thus by way of present suit, the mutation was also challenged. The suit was contested by raising preliminary objections that the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. The pleas of limitation and res judicata were also taken. It was pleaded that the suit was not properly valued for the purpose of Court fee. On merit, the averments made in plaint were contested and it was pleaded that the mutation was sanctioned on 2.7.1952 in the presence of the parties, and could not be challenged after a lapse of 47 years. It was claimed that defendant is the first wife of plaintiff No. 2 and had got redeemed the land and obtained possession from mortgagees. The plaintiff No.1 and defendant have also acted upon entries in the mutation and both have sold land out of their shares. It R.S.A. No. 1110 of 2009 (O&M) -5- was also pleaded that first suit filed by plaintiff No. 2 was dismissed on 7.2.1978. The second suit was dismissed on 3.11.1979 and the third suit was also dismissed, whereas the fourth suit was dismissed on 16.3.1992. It was claimed that the mutation was rightly sanctioned. Defendants No. 2 to 11 were subsequently impleaded as party on an application moved under Order 1 Rule 10 CPC, who also contested the suit on merits. On the pleadings of the partes, the learned trial Court was pleased to frame the following issues: - “1. Whether the deceased Gurbachan Singh as the exclusive owner in possession of suit land? OPP Mohinder Kaur etc. 2. Whether the deceased Gurbachan Singh made an oral gift of his total land in favour of her wife i.e. plaintiff Mohinder Kaur? OPP Mohinder Kaur etc 3. Whether the plaintiffs are owners in possession of the suit land as alleged in the plaint? OPP Mohinder Kaur etc. 4. If all the above isues are proved in affirmative, whether the mutation No. 1233 sanctioned on 3.7.52 is illegal, null and void and liable to be set aside? OPP Mohinder Kaur etc. 5. Whether the plaintiff Rajbir Kaur is the adopted daughter of Gurbachan Singh? OPP Mohinder Kaur etc. 6. Whether the present suit is barred under Order 2 Rule 2 CPC is alleged in preliminary objection No. 1 in the written statement of defendants Joginder Pal Kaur? OPD Joginder Pal Kaur etc. 7. Whether the present suit is not maintainable in the present form? OPD Joginder Pal Kaur etc. 8. Whether the present suit is barred by limitation R.S.A. No. 1110 of 2009 (O&M) -6- OPD Joginder Pal Kaur.” The learned trial Court on appreciation of evidence decided issue No. 1 in favour of the plaintiff and held that the deceased Gurbachan Singh was not exclusive owner in possession of the suit land. On isue No. 2 it was held that there was no interpolation and that the mutation No. 1233 was correct and binding on the parties. Issues No. 2, 3 and 4 were decided against the plaintiff/appellants. On issue No. 5, it was held that Rajbir Kaur was not legally adopted daughter of plaintiff No. 1. On issue No. 6, the learned trial Court was pleased to hold that the suit was barred under Order 2 Rule 2 CPC in view of the decision in the previous suit filed by Gurbachan Singh to challenge the mutation and title of defendant No. 1. Issues No. 7 and 11 were also decided against the plaintiffs and it was held that the civil Court did not have jursdiction to decide the revenue dispute. On issue No. 8, it was held that the suit was barred by limitation. Issue No. 10 was decided against the defendants No. 2 to 11. Issue No. 12 was also decided against the plaintiffs. Whereas issue No. 13 was decided against the defendant. In view of the findings recorded, the suit was ordered to be dismissed. In appeal the findings recorded by the learned trial Court stand affirmed. Mr. G.S. Sidhu, learned senior counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law: - “1. Whether the mutation on the basis of oral gift R.S.A. No. 1110 of 2009 (O&M) -7- where the interpolation made is apparent to the naked eye can confer any title on deceased Joginder Pal Kaur? 2. Whether the mutation on the basis of oral gift which is not followed by delivery or possession being null and void can cover legal title? 3. Whether the person who is not party to the suit earlier dismissed can be barred from filing fresh suit under the provisions of Order 9 Rule 9, Order 2 Rule 2 and Section 11 CPC? 4. Whether the judgments of learned Courts below which are based on misreading of the documentary evidence can be sustained? 5. Whether respondent No. 1 to 10 who has purchased the suit land during pendency of the litigation in spite of the stay order granted by the learned trial Court can have protection of Section 41 of the Transfer of Property Act being bona fide purchaser?” In support of the substantial questions of law, the learned counsel for the appellants contends that interpolation in mutation was apparent to the naked eye and, therefore, the learned Courts below were not right in upholding the mutation, under challenge. This contention of the learned counsel for the appellants cannot be accepted. The mutation was sanctioned in the year 1952 and, thereafter, repeated suits were filed in which the plaintiff No. 2 failed. Therefore, the learned Courts below rightly held that the mutation was rightly sanctioned. At the time of sanctioning of mutation, parties were present. It is contended by the learned counsel for the appellants that R.S.A. No. 1110 of 2009 (O&M) -8- the mutation on the basis of oral gift without possession was null and void and, therefore, did not confer any title. The contention of the learned counsel for the appellants is that the learned Courts below have erred in upholding the oral gift though it was proved on record that the possession was not handed over. This plea was rejected in the previous litigation. Plaintiff No. 2 had raised plea of adverse possession against the defendant. He admitted her to be owner under the gift deed executed, which was duly entered in the revenue record. The possession of the plaintiffs, therefore, was permissible as held in the previous litigation and, therefore, the learned Courts below rightly upheld the mutation and the oral gift. On third substantial question of law, the learned counsel contends that as plaintiff No. 1 was not party to the previous litigation, therefore, it could not be held to be barred under Order 2 Rule and Section 11 of the Code of Civil Procedure. This plea is also mis- conceived, as plaintiff No. 1 was drawing her title from plaintiff No. 2 on the basis of gift deed and, therefore, the decision against plaintiff No. 2 in previous litigation was binding on plaintiff No. 1, as she was drawing title through him. The learned Courts below, thus, righly held the suit to be barred under Order 2 Rule 2 CPC. The contention of the learned counsel for the appellants that the judgments and decree of the learned Courts below is based on misreading of documentary as well as oral evidence brought on record, especially the judgment passed in the previsous litigation, also cannot be accepted as nothing is pointed out as to how any evidence either oral or documentary has been misread. R.S.A. No. 1110 of 2009 (O&M) -9- The last substantial question of law cannot be said to be arisen in the present case, as the dispute is inter se between the plaintiff and defendant No. 1, which has been rightly adjudicated and decided in favour of defendant No. 1. The rights of the subsequent vendees could have only arisen in case of success of plaintiff/appellants. For the reasons stated, the substantial questions of law raised are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge March 10, 2009 R.S.