RSA No.4702 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4702 of 2009 (O&M) Date of Decision: 18.12.2009 Ranjeet Singh .... Appellant. Versus Dhan Singh and others ..... Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Adarsh Jain, Advocate for the appellant. RAKESH KUMAR JAIN J. The plaintiff being unsuccessful before both the Courts below in a suit for permanent injunction has come up in second appeal. The plaintiff claims to be the owner in possession of the property comprising in Rect No.37 Killa No.24(2-9) and 25/1(4-8) measuring 6 Kanals 7 Marlas purchased from Bajrang Lal vide registered sale deed dated 13.10.1997 through Vasika No.9708 and in Rect.No.38, killa No.21(6-8), 22(6-8), Rect.No.53 killa No.1/2(3-10), 2/1(1-4) total measuring 26 Kanals 7 Marlas purchased from Hardeep Kishan alias Pradeep Kishan vide registered sale deed dated 29.6.1999, Vasika No.3132. It is claimed that in partition application No.121/86 filed in respect of land measuring 2755 Kanals 3 Marlas, land comprising in Rect No.37 Killa No.25/2, Rect.No.38 Killa No.21(6-8), 22(6-8), Rect.No.53 Killa No.1/2(3- 10), Killa No.2/1(1-4) and Rect.No.37 Killa No.7/1(1-19) total measuring 21 Kanals fell to the share of predecessor-in-interest of the plaintiff and after the preparation of Sanad Taksim (Ex.PW4/B) the respective owners RSA No.4702 of 2009 -2- were put in possession. Thereafter, plaintiff had filed an application for correction of Khasra Girdawari which was accepted by Assistant Collector IInd Grade, Faridabad on 15.9.1999 which reflects the name of the plaintiff in possession. It is further claimed that Municipal Corporation, Faridabad had tried to demolish the boundary wall of the land of plaintiff which led to filing of a civil suit for permanent injunction in which Court of Smt.Rachna Gupta, Civil Judge, Faridabad granted status quo on 4.1.2002. It is also alleged that defendants were bent upon to take forcible possession, of portion `DEFG' comprising in Rect.No.53 Killa No.1/2(3-10) and 2/1(1-4), from plaintiff which led to the filing of the present suit for permanent injunction. The suit was contested by the defendants in which besides taking preliminary objections, the ownership and possession of the plaintiff over the suit land was denied. It was alleged that plaintiff is the owner in possession of land measuring 6 Kanals 17 Marlas only. It was claimed that the plaintiff had not purchased any specific khasra number from Hardeep Kishan. The partition of Shamlat Deh land was also denied. It was also averred that partition in case No.121/86 was not implemented and that case is pending for review. Defendants had asserted their ownership and possession over the land falling in Rect.No.53 besides the land mentioned in written statement. The land in question is stated to have been enclosed by pucca boundary wall having multi storey building on the same. The plaintiff filed replication and on the basis of pleadings of the parties, following issues were struck on 13.12.2002: (i)Whether the plaintiff is owner in possession of the property specifically described in para no.1 of the plaint? OPP. (ii)Whether the suit of the plaintiff is not maintainable in the RSA No.4702 of 2009 -3- present form? OPD. (iii)Whether the civil court has no jurisdiction to entertain and adjudicate the present suit? OPD. (iv)Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD. (v)Whether the plaintiff has not come to the Court with clean hands? OPD. (vi) Relief. Both the parties led their oral as well as documentary evidence. The plaintiff in support of his case examined Rajesh Kumar, ARC as PW1, C.S.Sharma, Advocate as PW2, S.P.Mittal, Draftsman as PW3, plaintiff himself appeared as PW4 and examined D.P.S.Tomar, Advocate as PW5. In documentary evidence, sale deed bearing No.9708 was tendered as Ex.PW1/A, sale deed bearing No.3132 as Ex.PW1-B, site plan as Ex.PW3/A, order dated 15.9.1999 passed by A.C.IInd Grade, Faridabad as Ex.PW4/A, Sanad Taksim in case No.121/86 as Ex.PW4/B, Mutation No.6396 as Ex.PW4/C, mutation No.6308 as Ex.PW4/D, khasra Girdawaries as Ex.PW4/E and as Ex.PW4/F, jamabandi as Ex.PW4/G, DD Rapat No.9 as Ex.PW4/X, DD Rapat No.3 as Ex.PW4/Y and Mark A to Mark G. To counter the case of appellant/plaintiff, defendants had examined eight witnesses, namely, Rajesh Kumar, ARC as DW1, Ajay Bhatia Photographer as DW2, Manoj Kumar, Draftsman as DW3, Radhey Shyam, Reader, Naib Tehsildar as DW4, Mohan Lal, Naib Sadar Kanungo as DW5, Attar Singh as DW6, Bijender as DW7 and defendant Dhan Singh as DW8. Documents i.e. sale deeds and lease deeds as Ex.D1 to Ex.D10, photographs and their negatives as Ex.D11 to Ex.D15, site plan as Ex.D16, Demarcation Report as Ex.D17, Aks Shijra as Ex.D18, Memorandum and Article of RSA No.4702 of 2009 -4- Association of Rainhow Livings Pvt.Ltd. as Ex.D19, copy of order dated 24.1.2005 of A.C.IInd grade, Faridabad as Ex.D20, Rapat Roznamcha as Ex.D21, mutation No.6750 again as Ex.D21, mutation no.6425 as Ex.D22, mutation No.6424 as Ex.D23, mutation No.6436 as Ex.D24, mutation No.6611 as Ex.D25, Aks Shijra as Ex.D26, jamabandi as Ex.D27 to Ex.D29, Local Commission Report as Ex.D30, site plan of local commission as Ex.D31, memo of presence as Ex.D32 and order dated 24.11.2005 passed by Collector, Faridabad as Ex.D33 were placed on record by defendants. No evidence in rebuttal was led by the appellant/plaintiff. After appreciating the evidence led by both the parties issue No.1 was decided against the plaintiff whereas issue No.2, 3 to 5 were decided against defendants. Consequently, the suit of the plaintiff was dismissed with costs. In appeal, the Court had found that land in question falls in Khewat No.952 (Jamabandi for the year 1993-94) total measuring 2755 Kanals and 3 marlas situated in village Mewla Maharajpur, Tehsil and District Faridabad. The plaintiff's case is that he had purchased 27 Kanals 2 Marlas land from the co-sharer in land falling in Khewat No.952 vide sale deed Ex.PW1/B and vendor of the plaintiff had taken the possession of the said land in terms of Sanad Taksim (Ex.PW4/B). It is also alleged that vide order of Assistant Collector IInd grade dated 15.9.1999 (Ex.PW4/A) Khasra Girdawari entry has been corrected in respect of land measuring 27 Kanals 2 Marlas in favour of the plaintiff, who is in possession thereof. On the other hand, counsel for the respondents had argued that land in question comprises of a multi storey building having boundary wall whereas the partition Ex.PW4/B was never acted upon which is under review. After taking into consideration the respective arguments of both the learned RSA No.4702 of 2009 -5- counsel for the parties, learned first Appellate court dismissed the appeal observing as under : “On consideration of matter, I am of view that from documents on record it is clear that Sanad Taksim was never got implemented by revenue authorities. Mutation of partition was never got entered in revenue records and reflected in jamabandies. On reading of sale deed Ex.PW1/B, the intention of parties was to sell and purchase land falling to the share of Hardeep Kishan and specific khasra numbers were including as they were likely to be allotted in pursuance of Sanad Taksim Ex.PW4/B which was pending review with the revenue authorities. The admission of parties in Ex.PW1/B that partition vide Ex.PW4/B is pending review before higher revenue authorities only shows that Hardeep Kishan had sold his share in joint land and specific khasra numbers were mentioned in anticipation as per Sanad Taksim. Except for reliance placed on Ex.PW4/A, no material has been placed by appellant/plaintiff to show that possession of specific khasra numbers was taken in pursuance of Ex.PW4/B. The learned trial Court has rightly held that correction of khasra girdawaries vide Ex.PW4/A is collusive between plaintiff and persons mentioned in that application. All the persons who had interest in the land were not impleaded. Ashok Kumar who as per khasra girdawari for the years 1999 to 2000 Ex.PW4/E was in possession was not impleaded in the proceedings decided vide Ex.PW4/A. Learned trial court had rightly noted that said order Ex.PW4/A is violative of provisions of Punjab Land Revenue Act, 1887. Section 21 of Punjab Land Revenue Act 1887 was not complied with by issuance of summons upon some persons by nominating them as representative of all the co-sharers or persons effected by correction of khasra girdawari. Learned trial court therefore, has rightly concluded that no reliance upon Ex.PW4/A can be placed. Moreover Ex.PW4/A can be of help to the case of plaintiff only after showing that in pursuance of RSA No.4702 of 2009 -6- Sanad Taksim Ex.PW4/B possession of disputed land was taken over by Hardip Kishan predecessor of plaintiff. Unless possession of Hardip Kishan over property in pursuance of Ex.PW4/B is established, suit of plaintiff cannot succeed. No material has been placed to show possession of Hardip Kishan in pursuance of Sanad Taksim Ex.PW4/B.” Learned counsel for the appellant has vehemently argued that once the land has been partitioned and Sanad Taksim has been prepared, there is no dispute left with the possession, therefore, he is entitled to seek injunction. I have heard learned counsel for the appellant and perused the record with his assistance. There is no doubt that vide Ex.PW1/B, Hardeep Kishan alias Pradeep Kishan had sold specific khasra Numbers out of Shamlat Deh land to the plaintiff without there being any partition. There is also no dispute that no material has been placed on record by the plaintiff to show that his vendor Hardeep Kishan alias Pradeep Kishan was in possession of these khasra numbers prior to Sanad Taksim (Ex.PW4/B). The plaintiff is required to prove on record not only the possession of his vendor on the specific khasra numbers in the joint khewat which has been sold but also the fact that possession was decided to be maintained as it is at the time of preparation of mode of partition on the basis of which Sanad Taksim has been prepared. Unfortunately, no such evidence has been led which could have guided the Court to form an opinion in respect of possession of the plaintiff having been obtained from his vendor at the time of sale vide sale deed Ex.PW1/B in order to maintain the suit for permanent injunction. Since the plaintiff has miserably failed to prove possession of his vendor RSA No.4702 of 2009 -7- and consequent delivery of possession by him to the plaintiff at the time of sale or any evidence to the effect that after the partition he has been shown to be in possession of the specific khasra numbers which have been sold vide sale deed Ex.PW1/B, no relief could have been given by the Civil Court insofar as prohibitory injunction is concerned. No other point has been raised before this Court. In view of the above discussion, I do not find any question of law much less substantial in the present appeal and the same is dismissed in limine though without any order as to costs. (RAKESH KUMAR JAIN) 18.12.2009 JUDGE Meenu