R.S.A.No.170 of 2001 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.170 of 2001 (O&M) Date of Decision:July 22, 2009 Smt. Tara Devi ---Appellant versus Bishamber Singh and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Arun Bansal,Advocate, for the appellant Mr.D.V.Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate for respondent No. 1 *** SABINA, J. Plaintiff – Bishamber Singh had filed a suit for declaration with consequential relief of permanent injunction and suit for possession and mandatory injunction. Additional Civil Judge (Senior Division), Anandpur Sahib vide judgment and decree dated 23.1.1996 decreed the suit of the plaintiff. Aggrieved by the same, defendant No. 4 preferred an appeal and the same was dismissed by Additional District Judge, Rupnagar vide judgment and decree dated 15.9.2000. Hence, the present appeal by defendant No. 4. R.S.A.No.170 of 2001 (O&M) {2} The facts of the case as noticed by the learned Additional District Judge, in paras 3 and 4 of its judgment read as under:- “The facts of the case pertaining to Civil Suit No. 403 of 19.12.1988 are that previously Sidhi Haravtar Singh was the big land owner of the suit land along with other land which was declared surplus by the Collector (Agrarian), Anandpur Sahib and the same vested in the Punjab Government. According to the plaintiff he was allotted land measuring 25 K- 17 M including the suit land by the Collector (Agrarian), Anandpur Sahib and he deposited the compensation amount of Rs. 2261.88 and was put in the actual possession of the land including the suit land vide rapat No. 233 dated 12.1.1978 and since then he continued to remain in possession of the suit land till the plaintiff was forcibly and illegally dispossess from a part of the suit land measuring 0K-3M on 20/21-2-88 and from rest of the suit land on 10.12.88 by the defendants in conspiracy with one another. The plaintiff further alleged that he had been recorded to be exclusive owner of the suit land in the record of rights including jamabandis for the year 1978-79 and 1983-84 as also the khasra girdawari from 1979 onwards. The plaintiff further alleged that defendants after dispossessing him from the suit land raised unauthorized and illegal construction in an area of about 2/3 marlas despite the protest lodged by him. Defendant No. 3 Surjit Singh, husband of defendant No. 4 remained posted as field Kanungo in the Halqa during the period 1985 to 1987. The defendants in conspiracy with one R.S.A.No.170 of 2001 (O&M) {3} an another and the then Halqa Patwari got the khasra girdawari entry incorporated for the crop of Hari-1987 in favour of defendant No. 4 illegally and without any right. The revenue entries effected in favour of defendant No. 4 for the crop of Hari- 1997 and subsequent thereto were alleged to be null and void, baseless and had to accept on the rights of the plaintiff in the suit land. The defendants further threatened to raise more constructions in the remaining suit land for which they have got no right and they are bound to deliver the vacant possession of the suit land after removing the illegal construction raised by them. The plaintiff further alleged that a suit for permanent injunction filed by him against one Jaimal who was alleged to be henchman of the defendants had already been decreed wherein question regarding title and possession had been decided in favour of the plaintiff. As the defendants failed to accede to the request of the plaintiff to hand over the vacant possession of the suit land to him, the plaint had brought the suit for declaration to the effect that he is the exclusive owner of the suit land and sought possession of the same after removal of super structure raised thereon by the defendants by way of issuing a mandatory injunction and also to restrain the defendants from interfering in any way in the ownership rights of the plaintiff in the suit land. In the written statement defendants pleaded that suit is barred by principles of res judicata and is also not maintainable. It is also not properly valued for purposes of R.S.A.No.170 of 2001 (O&M) {4} court fee and jurisdiction and ownership and possession of the plaintiff was denied. The entries in the revenue record were also denied as wrong and illegal. It was stated that Sodhi Haravtar Singh was the original owner of the property. The order of the Collector declaring the land as surplus has been set aside by the Hon’ble High Court. The allotment in favour the plaintiff has become infructuous. The plaintiff never came in possession of the suit property on the basis of allotment made in his favour. It was denied that the plaintiff was dispossessed from the suit land on 21.2.1988. Defendants are in possession of the suit land since 1994. Defendant Gurvinder Singh migrated from Haryana during riots of 1984 and was settled by the authorities in the suit property. It was admitted that defendant No. 3 is working as Field Kanungo during the year 1985-87. Entries in favour of the defendants in khasra Girdawari are correct.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is the owner of the suit land? OPP (2)Whether the plaintiff came into possession of the suit land on 12.1.1978 and was dispossessed therefrom by the defendants on 20.2.1988/21.2.1988 and 10.12.1988? OPP (3)Whether the order by which the suit land was declared surplus of previous owner Sodhi Haravtar Singh has been set aside by the Hon'ble High Court? If so, its effect? OPD (4)Whether the suit is properly valued for the purposes of court R.S.A.No.170 of 2001 (O&M) {5} fees and jurisdiction? OPP (5)Whether the suit is bad for non-joinder and mis-joinder of parties? OPD (6)Whether the suit is barred by res judicata? OPD (7)Whether the suit is not within time? OPD (8)Relief After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff-Bishamber Singh had filed a suit for declaration and permanent injunction and suit for possession and mandatory injunction. Land measuring 25 Kanals -17 Marlas was declared surplus in the hands of big land owners. Vide order dated 7.8.1984, the said order was set aside and it was held that land allotted to the land owners will revert to the original owners only on the condition that reasonable compensation as determined by the Collector for allotment of the land was paid to the allottees. Since the said conditional order was not complied with , the order vide which land measuring 25 Kanals -17 marlas declared surplus stood maintained. The said land was allotted to Bishamber Singh on 19.10.1977 and possession of the land was handed over to him on 12.1.1978. In the civil suit filed by Bishamber Singh, present appellant Tara Devi did not take any plea in the written statement that an agreement to sell had been executed on 31.5.1977 in her favour by the plaintiff. However, in the suit filed by Haravtar Singh, which was ordered to be consolidated with the suit filed by Bishamber Singh, Tara Devi took a plea in the written statement that agreement to sell dated 31.5.1977 had been executed by Bishamber Singh in her favour and had received the entire agreed price of the land. R.S.A.No.170 of 2001 (O&M) {6} Thus, while filing a written statement along with other defendants in the suit bearing No. 403 on 19.12.1988 filed by Bishamber Singh, the agreement to sell in question was not set up by the appellant. The suit filed by Haravtar Singh was got dismissed as withdrawn in appeal on 19.8.1997. The case of plaintiff - Bishamber Singh is that he had remained in possession of the suit property till the year 1988 after it was allotted to him and thereafter he was dispossessed from the suit land by defendants No. 1 to 3 and they had also raised construction on the suit land. From the evidence on record it transpires that the possession of the allotted land to plaintiff – Bishamber Singh was handed over on 12.1.978 after it was allotted to him on 19.10.1977. In these circumstances, there was no occasion for Bishamber Singh to hand over the possession of the land in dispute to Tara Devi on the basis of agreement to sell dated 31.5.1977 i.e. prior to the allotment of land to him. Since the possession of the land had been taken by the defendants from the plaintiff- Bishamber Singh, the courts below had rightly held that plaintiff-Bishamber Singh was entitled to get the possession of the suit land and rightly decreed the suit of the plaintiff. No interference by this Court is called for. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 22, 2009 PARAMJIT