R. S. A. No. 1425 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1425 of 2011 (O&M) Date of Decision : May 27, 2011 Hari Singh and another .... Appellants Vs. Sansari Devi and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arvind Mittal, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 3990-C-II of 2011 : Allowed as prayed for. Main Appeal : Defendants no.1 and 2 have filed the instant second appeal. Respondents no.1 to 5/plaintiffs filed suit against appellants (defendants no.1 and 2), Durga (defendant no.3 – since deceased and represented by respondents no.6 and 7 as his legal representatives) and Satinder Paul Singh (defendant no. 4/respondent no.8). Plaintiffs' case is that Ganga was owner of the land measuring 21 kanals 04 marlas R. S. A. No. 1425 of 2011 (O&M) 2 comprising of Khasra Nos. 961 (6-16) and 395 (14-8). On his death in the year 1959, the suit land was inherited by his daughter Mansa Devi vide mutation no.447 dated 10.03.1962 being sole surviving legal heir. Plaintiffs' father Lekhu purchased the said land from Mansa Devi vide sale deed dated 03.07.1962 and became owner in possession thereof. After consolidation, the said land became suit land measuring 11 kanals 16 marlas comprising of Khasra Nos.303//6 (8-0) and 7/1(3-16). Accordingly, plaintiffs' father became owner in possession of entire suit land. On his death, plaintiffs being his legal heirs, inherited the suit land vide mutation no.1280 dated 13.12.1984. Accordingly, plaintiffs are now owners of the suit land. Plaintiffs further alleged that mutation no.447 dated 10.03.1962 of Ganga in favour of Mansa Devi was reviewed vide order dated 04.03.1968, thereby mutating the land of Ganga in favour of Mansa Devi to the extent of half share only and the remaining half share in favour of one Jago – daughter of Karmi alleging that Karmi was also daughter of Ganga. On the basis of said wrong mutation, Jago sold the said half share to defendants no.1 and 2 in the year 1993. Thereupon, defendants no.1 and 2 filed partition application in the Revenue Court. Plaintiffs herein raised question of title, but the same was neither adjudicated upon by the Revenue Court nor referred to Civil Court for decision. Without deciding the question of title, Revenue Court, vide order dated 08.04.1996, partitioned R. S. A. No. 1425 of 2011 (O&M) 3 the suit land along with other land, which was affirmed by Collector in appeal vide order dated 13.03.1997 and in revision by Additional Commissioner vide order dated 10.06.1999. The said orders have been challenged in the suit claiming that plaintiffs are exclusive owners of the suit land. Consequent relief of permanent injunction was also sought. Defendants no.1 and 2 inter alia contended that entire land of Ganga in three villages was mutated in favour of Mansa Devi and Jago in equal shares. It was pleaded that Karmi was also daughter of Ganga and as such, Mansa Devi was not sole owner of the land owned by Ganga. Mutation of half share in favour of Jago was defended. It was thus alleged that plaintiffs were not exclusive owners of the suit land. Defendant no.4 also defended the partition orders passed by the Revenue Courts. Defendant no.4 claimed to be bona fide purchaser of 59 kanals 15 marlas from Som Nath and Amarjit Singh – sons of Lachman Dass. He also claimed to have spent lot of money on improvement of said land. Learned Civil Judge (Junior Division), Anandpur Sahib, vide judgment and decree dated 22.09.2008, partly decreed the plaintiffs' suit declaring that plaintiffs are owners of the suit land and partition orders of Revenue Court, as affirmed in appeal and revision by Revenue Courts, were set aside being illegal and null and void. Against judgment and decree of the trial court, plaintiffs as well as defendants no.1 and 2 preferred separate R. S. A. No. 1425 of 2011 (O&M) 4 first appeals. Learned Additional District Judge, Ropar, vide common judgment and decrees dated 28.02.2011, allowed the appeal preferred by the plaintiffs and decreed their suit in toto and also granted relief of possession of the suit land, whereas appeal preferred by defendants no.1 and 2 was dismissed. Feeling aggrieved, defendants no.1 and 2 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. At the outset, it has to be noticed that plaintiffs herein raised question of title in the partition application before the Revenue Court. According to Section 117 of the Punjab Land Revenue Act, 1887 (in short – the Act), when question of title is raised in partition case, the Revenue Court may either decline to partition the land till question of title is determined by competent court (Civil Court) or Revenue Court may itself proceed to determine the said question of title as if it were a Civil Court. In the instant case, however, the Revenue Court did not adopt either of the aforesaid two courses and proceeded to partition the land without determining the question of title or without getting the question of title determined from the competent court. Consequently, the partition orders have been rightly held to be null and void being in violation of the aforesaid statutory provision and for this reason, jurisdiction of Civil Court to try the suit is also not barred notwithstanding provisions of Section 158 of the R. S. A. No. 1425 of 2011 (O&M) 5 Act. The next question to be adjudicated upon in the lis was whether plaintiffs are owners of the suit land or not. This question depends on the other question as to whether Ganga had only one daughter namely Mansa Devi or had two daughters i.e. Mansa Devi and Karmi, whose daughter is Jago. Plaintiffs alleged that Karmi was not daughter of Ganga, but defendants no.1 and 2 alleged that Karmi was daughter of Ganga. Issue no.2-A framed on this plea, as mentioned in the judgment of the trial court, is reproduced hereunder :- “Whether Ganga and Karmi were two daughters of Sh. Ganga, if so its effect ? OPD” However, same issue, as mentioned in the judgment of the lower appellate court, is also reproduced hereunder :- “Whether Ganga and Karmi were two daughters of Sh. Ganga, if so its effect ? OPP” The only difference therein is that the trial court has placed the onus of the issue on the defendants, whereas the lower appellate court has placed the onus of the issue on plaintiffs. However, from the language of the issue, it is manifest that onus of the issue had to be on defendants, who pleaded that Karmi was also daughter of Ganga. The plaintiffs pleaded that R. S. A. No. 1425 of 2011 (O&M) 6 Karmi was not daughter of Ganga and consequently, the onus to prove that Karmi was daughter of Ganga could not be placed on plaintiffs. The onus had to be discharged by defendants, who pleaded Karmi to be daughter of Ganga. However, defendants have miserably failed to discharge this onus. There is practically no evidence to depict that Karmi was also daughter of Ganga. Consequently, Jago could not inherit half share of land from Ganga and only Mansa Devi being sole daughter and legal heir of Ganga, inherited the suit land. Learned counsel for the appellants laid emphasis on order dated 04.03.1968, whereby inheritance mutation of Ganga, which had already been sanctioned on 10.03.1962 in favour of Mansa Devi alone, was reviewed and mutation was sanctioned in favour of Mansa Devi and Jago in equal shares. However, the said mutation is the bone of contention, which has given rise to this litigation. On the basis of said mutation, in the absence of any other cogent evidence, it cannot be held that Karmi was daughter of Ganga. There is concurrent finding recorded by the courts below to this effect. The said finding is justified by the evidence on record and cannot be said to be perverse or illegal so as to call for interference in second appeal. Plaintiffs have proved that their father purchased 21 kanals 04 marlas land from Mansa Devi vide sale deed dated 03.07.1962 and the same land became the suit land after consolidation of holdings. R. S. A. No. 1425 of 2011 (O&M) 7 Consequently, plaintiffs are owners in possession of the suit land. It may also be added that order dated 04.03.1968 to review inheritance mutation of Ganga was passed without notice to plaintiffs' father Lekhu, who had already purchased the land in question from Mansa Devi, in whose favour inheritance mutation no.447 had already been sanctioned on 10.03.1962. Consequently, review order dated 04.03.1968 of the said inheritance mutation is also null and void being in violation of principles of natural justice. Plaintiffs' father was also bona fide purchaser of the suit land because when he purchased the suit land, inheritance mutation had already been sanctioned in favour of Mansa Devi alone. Plaintiffs' father purchased the land from Mansa Devi. He is, therefore, proved to be bona fide purchaser of the suit land for valuable consideration. For this reason also, plaintiffs are entitled to succeed. Counsel for the appellants contended that plaintiffs in the suit have claimed only half share of the land purchased by their father and have not claimed the other half share in the suit land. It was pointed out that defendants no.1 and 2 have purchased half share in the land from Jago, whereas defendant no.4 purchased some land from the remaining half share of Mansa Devi and the same has not been disputed by the plaintiffs. The contention is misconceived. Plaintiffs have sought declaration of their ownership over the entire suit land measuring 11 kanals 16 marlas, which R. S. A. No. 1425 of 2011 (O&M) 8 was claimed to have been allotted in consolidation of holdings in lieu of the land measuring 21 kanals 04 marlas purchased by the plaintiffs' father Lekhu. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiffs is based on proper appreciation of evidence. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly, the appeal is dismissed in limine. May 27, 2011 ( L. N. MITTAL ) monika JUDGE