RSA No.134 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.134 of 1987 Decided on : 27.10.2010 Bhagwan Kaur ... Appellant versus Jangir Singh & others ... Respondents CORAM : HON'BLE MR. JUSTICE GURDEV SINGH Present : Mr. Amarjit Markan, Advocate for the appellant. **** Gurdev Singh, J. The appellant/defendant No.1 has preferred this second appeal against the judgment and decree dated 25.09.1986 passed by Addl. District Judge, Sangrur vide which the appeal preferred by the appellant/defendant No.1 against the judgment and decree dated 13.04.1983 decreeing the suit of respondent No.1/plaintiff declaring him and respondents No.2 & 3 to be exclusive owner in possession of land, through their mortgagees, of the land measuring 96 kanals 7 marlas detailed in Para A of the head note of the plaint and further declaring the entries in the jamabandi for the year 1978-79 regarding joint ownership of Bhagwan Kaur regarding 1/3rd share to be illegal, wrong and not binding upon the plaintiff and respondents No.2 & 3 and further declaring them to be the owners in possession of 2/3rd share of the land measuring 42 kanals 4 marlas as mentioned in para No.B of the head note of the plaint and further holding that they were entitled to retain the possession of the land with them till the final partition. The plaintiff-Jangir Singh filed suit for declaration against RSA No.134 of 1987 -2- the present appellant/defendant No.1 and defendants No.2 & 3. He pleaded in the plaint that he along with defendants No.2 & 3 is the exclusive owner in possession of land measuring 96 kanals 7 marlas situated in village Nilowal fully detailed in para No.A & B of the head note of the plaint. Defendant No.1 filed civil suit No.396 of 13.11.1968 for declaration to the effect that she was the owner of 1/3rd share of the total land measuring 136 kanals 1 marla in which she claimed joint possession of the land mentioned in para No.2 of the plaint to the extent of 1/3rd share. That suit was dismissed by Sub Judge, Ist Class, Sunam vide judgment dated 20.02.1970. Then defendant No.1 filed an appeal against that judgment and decree, which was decided on the basis of compromise entered into between the parties on 22.10.1971. Only her suit for joint possession was decreed conditionally that if the plaintiff paid a sum of ` 3,000/- to defendant No.1 by 22.03.1972, the suit was deemed to have been dismissed otherwise the decree for possession was to stand and was executable. The Addl. District Judge, Sangrur, vide his order dated 23.07.1984 passed in MCA No.27 of 16.03.1974, clarified that joint possession of 1/3rd share i.e. 14 kanals 1 marla out of the land mentioned in para No.B of the head note of the plaint will be delivered to defendant No.1/decree holder and consequently the joint possession of that land was delivered to her. Satisfied with the said order, defendant No.1 did not prefer any further appeal. The plaintiff further pleaded that he along with defendants No.2 & 3 was exclusive owner in possession of the land mentioned in para A of the head note of the plaint even prior to the filing of the above said suit by defendant No.1 and they continued to be so even after filing of the suit. Defendant No.1 never attempted to disturb their RSA No.134 of 1987 -3- possession over the land. Their exclusive possession being adverse and from the last more than 12 years, matured into ownership and the rights of defendant No.1, if any, stood extinguished. Defendant No.1 instead of adopting the proper course, approached the Revenue Authorities and got sanctioned mutation No.1937 dated 23.06.1978 regarding 1/3rd share in the total suit land. No such declaration regarding ownership was granted in her favour and such a mutation could not have been sanctioned. Taking advantage of that mutation order, defendant No.1 moved A.C., Ist Grade, Sunam for partition of the said land and other joint land, which necessitated the filing of the suit for the relief of declaration and permanent injunction. The suit was contested by defendant No.1. In her written statement, she admitted that the suit was filed by her against the plaintiff and other defendants. She denied other contentions made in the plaint and pleaded that the suit so filed by her was decreed and she has already entered into possession of the land in dispute after passing of the decree in her favour. Mutation was correctly sanctioned in her favour. The partition has already been correctly effected. The plaintiff/respondent No.1 has no loucs standi to file the suit nor the same is cognizable by the civil court. She prayed for dismissal thereof. In replication to the written statement, the plaintiff denied the contention raised therein and reiterated his averments made in the plaint. On the pleadings of the parties following issues were framed: (i)Whether the plaintiff and defendants No.2 & 3 are owners in possession of 96 kanlas 7 marla of land, described in the plaint? OPP. (ii)Whether the plaintiff and defendants No.2 & 3 are the RSA No.134 of 1987 -4- owners to the extent of 2/3rd share out of 42 kanals 4 marlas of land, described in the plaint? OPP (iii)Whether the plaintiff is entitled to the injunction prayed for? OPP (iv)Whether the plaintiff has no locus standi to file the suit? OPD (v)Whether the suit is not maintainable in the present form? OPD (vi)Whether this court has no jurisdiction to hear the suit? OPD (vii)Relief. To succeed in the suit, the plaintiff examined Hardial Singh as PW-1, Hari Singh – PW-2 and himself as PW-3. On the other hand, defendant No.1 entered into witness box as DW-1. After going through the record and hearing learned counsel for both the sides, trial court decided all the issues in favour of plaintiff and resultantly decreed his suit. Defendant No.1 preferred first appeal against the judgment and decree, which was dismissed as aforesaid. I have heard learned counsel for the appellant/defendant No.1. It has been submitted by the learned counsel for the appellant that the suit of defendant No.1 filed in respect of 136 kanals 1 marla of land was decreed in the appeal on the basis of compromise and by virtue of that decree, she became the owner of 1/3rd share in total suit land. Though the decree was conditional yet the same became final as the present plaintiff failed to pay a sum of ` 3,000/- by the stipulated date. He has further submitted that in execution of the RSA No.134 of 1987 -5- decree defendant No.1 obtained the possession and is coming in possession thereof. Therefore, the findings of the lower courts that the plaintiff and defendants No.2 & 3 are the owners in possession of the land in dispute cannot be sustained and is liable to be set aside. A perusal of the certified copy of the decree sheet dated 20.02.1970 Ex. P-3 shows that the suit was filed by defendant No.1 for declaration to the effect that she was the owner in possession of the land measuring 45 kanals 7 marlas as 1/3rd of the total land measuring 136 kanals 1 marlas and prayed for the joint possession of 1/3rd land measuring 42 kanals 4 marla. The suit was dismissed. She preferred an appeal against the order of the trial court, which was decided on the basis of compromise entered into between the parties. Her suit was decreed conditionally only for possession. The relevant portion of the decree is reproduced below: “The plaintiff's suit for possession is decreed conditionally that if the defendant/respondent Jangir Singh pays a sum of ` 3,000/- to the plaintiff-appellant by 22.03.1972, the suit shall be deemed to have been dismissed, otherwise the decree for possession shall stand and shall be executable.” From the evidence produced on record, it also stands proved that defendant No.1 made an application for execution of the decree after the condition of payment of ` 3,000/- by the present plaintiff was not satisfied. Order dated 23.07.1974 was passed in the appeal preferred by the present plaintiff against the order dated 05.03.1974, vide which warrants of possession was issued in favour of defendant No.1 regarding land measuring 14 kanals 1 marla. The relevant portion of that order is reproduced below: RSA No.134 of 1987 -6- “It is admitted that the condition of the decree regarding payment of sum of ` 3,000/- by Jangir Singh to the plaintiff by 22.3.1972 has not been complied with, with the result that the plaintiff had a right to execute the decree for possession. In the suit, the relief of joint possession was in respect of land measuring 22 kanals 1 marla (out of which the plaintiff's share was 14 kanlas 1 marla). No doubt, the order passed by the executing court was for delivery of possession of 14 kanals 1 marla but it is stated by the learned counsel for the decree-holder that actually the warrants of possession issued were for joint possession, i.e. 1/3rd share of 45 kanlas 7 marlas. This statement has not been controverted by the learned counsel for the appellant, whose only grievance was that it being a decree for joint possession, only joint possession should be delivered. A direction, therefore, is issued to the executing court that it shall see that only joint possession is delivered in terms of the decree.” It is admitted fact that no further appeal/revision was filed against that order. Thus, only joint possession was ordered to be delivered to defendant No.1 regarding 1/3rd share of land measuring 42 kanals 4 marlas. The fact that that possession of land was so delivered is also reflected from para No.6 of the plaint. Correct findings were recorded by the lower courts on the basis of evidence produced by the parties that the plaintiff and defendants No.2 & 3 are the exclusive owners of the land measuring 96 kanals 7 marlas described in para A of the head note of the plaint and are the owners to the extent of 2/3rd share of 42 kanals 4 marlas of land as described in para B of the head note of the plaint. Those findings are supported by the documentary evidence consisting of the above said decree-sheet Ex. P-3 and the oral evidence. Categorical RSA No.134 of 1987 -7- statements were made by the plaintiff and his witnesses that the plaintiff and defendants No.2 & 3 were coming in exclusive possession of the land to the exclusion of defendant No.1. No doubt defendant No.1 while making his statement as DW-1 tried to assert that she is in possession of the land in dispute but a perusal of the cross-examination shows that she is not a witness worthy of reliance. She has denied the factum of previous litigation and the decision of the appeal on the basis of compromise so entered into by her. She also stated during her cross- examination that she never obtained possession of the land through court. In that eventuality she had no case at all, as it is very much clear that she was not in possession and her suit was decreed for joint possession, which she had obtained through the court. In view of the above discussion, I conclude there is no merit in this appeal and the same is dismissed. October 27, 2010 (GURDEV SINGH) sonia JUDGE