R.S.A.No. 1393 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1393 of 2008 (O&M) Date of decision: 8.10.2009 Tejinder Pal Singh ......Appellant Versus Sujan Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.K.K.Aggarwal, Sr. Advocate with Mr.Kapil Aggarwal, Advocate for the appellant. Mr.C.B.Goel, Advocate for the respondent. **** SABINA, J. Plaintiff-appellant filed a suit for declaration with consequential relief of permanent injunction, which was dismissed by the Additional Civil Judge (Sr.Divn.), Jagadhari vide judgment and decree dated 6.1.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Yamuna Nagar vide judgment and decree dated 7.2.2008. Hence, the present appeal . R.S.A.No. 1393 of 2008 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The brief facts leading to filing of the present appeal are that plaintiff Tara Singh, since deceased, now represented by his legal representative Tejinder Singh, had filed a suit seeking a decree for declaration with consequential relief of permanent injunction against his brother, namely Sujan Singh inter alia on the averments that he had purchased the suit land, fully detailed and described in the head note of the plaint, for a total sale consideration of Rs.4,500/- vide registered sale deed dated 31.12.1959. The entire sale consideration was paid by him from his own pocket to the vendor before the Sub Registrar. Defendant Sujan Singh was a student at that time but his name was got mentioned in the sale deed along with the name of the plaintiff only as a benamidar. Infact, plaintiff is the real owner in possession of the suit land and the sale deed remained with him throughout. While alleging that the defendant is not in possession of any portion of the suit land and has no right, title or interest over the same it is pending that the defendant has no right to transfer any portion of the suit land in favour of any other person, however, he is intending to do so. Hence, he sought declaration R.S.A.No. 1393 of 2008 (O&M) 3 regarding his clear title over the suit land and further relief of permanent injunction restraining the defendant from alienating the suit land in any manner. 3. On notice, defendant appeared and filed his written statement wherein the claim put forth by the plaintiff has been vehemently controverted while alleging that he is the true owner in possession of half share of the total land measuring 50 kanal 07 marla. He has even described the specific killa numbers in his possession in the written statement. It is further pleaded that he had equally shared the sale price. At the time of purchase of the suit land he was in service in Army and was posted at Jabalpur. The oral sale deed remained in possession of the plaintiff being elder brother of the defendant and having permanently settled in village Fatehpur, so no presumption can be drawn on this ground that the plaintiff is the absolute owner of the suit land. While denying all the other averments mentioned in the plaint, the maintainability of the suit was challenged. It is pleaded that the suit is barred by limitation and bad for improper valuation. Dismissal of the suit was thus prayed for.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff purchased ½ share in the R.S.A.No. 1393 of 2008 (O&M) 4 suit property vide sale deed dated 31.12.1959, as alleged? OPP 2. Whether plaintiff is entitled for permanent injunction qua the disputed property, on the grounds as alleged? OPP 3. Whether suit of the plaintiff is not maintainable? OPD 4. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether suit is time barred? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit claiming himself to be exclusive owner of the property in dispute on the basis of sale deed dated 31.12.1959. The case of the plaintiff was that the entire sale consideration had been paid by him and hence, the defendant (his younger brother), whose name figured in the sale deed, had no concern with the suit land. The sale deed in dispute is Ex.P-1. The case of the defendant, on the other hand, is that he was owner in possession to the extent of half share of the total land. He further pleaded that he had equally shared the sale price. However, the sale deed remained in possession of the plaintiff being his elder brother. The plaintiff, however, failed to establish that he R.S.A.No. 1393 of 2008 (O&M) 5 had paid the entire sale consideration by leading any cogent documentary evidence in this regard. As per Ex.D-1, copy of certificate of service, defendant was enrolled in the Army on 1.8.1957. Thus, at the time of execution of sale deed, defendant was already in service in the Army. Learned Additional District Judge in the impugned judgment has observed that as per the revenue record, plaintiff and defendant were described to be in separate possession of their shares of land. No application was ever made by the plaintiff to the competent revenue authority for correction of the entry in the revenue record. The sale deed in question was executed in the year 1959, whereas, the plaintiff filed the present suit in the year 2002. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 08, 2009 anita