RSA No.4437 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.4437 of 2010 (O&M) DATE OF DECISION: 26.11.2010 **** Sucha Singh . . . Appellant Vs. Sarwan Singh and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.O.P. Kamboj, Advocate for the appellant. **** RAKESH KUMAR JAIN J. The appellant is defendant No.3 in the suit, who has challenged the judgement and decree of both the Courts below by which suit filed by the plaintiffs for possession of land measuring 7 kanals 18 marlas comprising in Rect. No. 37, Killa No. 4/1 (5-16), 16/1 (2-2) situated in the area of village Changali Jadid, Tehsil and District Ferozepur, has been decreed and the defendants have been directed to handover the actual vacant possession to the plaintiffs, who are held to be the owner of the said land. The case set up by the plaintiffs is that the suit land was previously owned by Ram Singh son of Thaman Singh father of the plaintiffs. They had inherited the suit land which was mutated in their name vide mutation No.2410 and are recorded in jamabandi for the year 2004-2005 to the extent of 1/2 share each. It is pleaded that during his life time Ram Singh had mortgaged the suit land with possession in favour of Balbir Singh, Gursewak Singh, Parmatma Singh sons of Amar Singh to the extent of 3/5 share and also mortgaged the said land in favour of Malkiat Singh son of Pahara Singh to the extent of 1/5 share and to Gurchhinderpal Singh, Gurmel Singh sons of Gurcharan Singh to the extent of 1/5 share. It was alleged that the land in dispute was redeemed RSA No.4437 of 2010 (O&M) -2- by the plaintiffs, which is reflected in jamabandi for the year 2004-2005 and at the time of redemption they came to know that the land in dispute is in possession of the defendants without any legal rights as they are neither tenants nor mortgagees rather they are shown as unauthorized occupiers. Thus, the plaintiffs claimed possession being owners of the suit land by way of the present suit. On notice, defendant No.2 did not put in appearance, therefore, he was proceeded against ex parte whereas suit was contested by defendants No.1 & 3, who have alleged that the suit land comprising in Rect. No. 37, killa No. 4/1(5-16), 16/1(2-2) was purchased by them from Parmatma Singh son of Amar Singh. The appellant (Sucha Singh)/defendant No.3 had purchased 101 share of total land measuring 1334 kanals 13 marlas. It is also alleged that Parmatma Singh used to cultivate the land comprised in Rect. No.37, Killa No.4/1 (5-16) but later on the possession of the said land was delivered by him to the defendants. It was also alleged that defendants have no concern of the land comprising in Rect. No.37, Killa No.16/1(2-2) in any manner whatsoever. They claim themselves to be co-sharers in the land in dispute. The plaintiffs filed replication to the written statement and on the basis of the pleadings of the parties issues were framed by the learned trial Court. The plaintiffs examined himself as PW1 and tendered the copy of order dated 29.1.2003 passed by SDO, Ferozepur as Ex.P-1, Jamabandi for the year 2004-2005 as Ex.P2 and Khasra Girdawari from Sauni 2002 to Hari 2006 as Ex.P3. On the other hand, the defendants failed to lead any evidence as a result of which it was closed by order of the Court. The learned Court below had found that there is a reference of mutation No.2410 in Jamabandi Ex.P-2 for the year 2004-2005 as per which inheritance regarding the suit land was sanctioned in favour of the plaintiffs and from the order Ex.P-1 passed under Section 4 of the Redemption of Mortgage (Punjab) Act, the suit land stood redeemed and Mutation No.2418 to that effect was sanctioned which also find mentioned in Jamabandi Ex.P-2. It was observed that presumption of truth is attached to jamabandi until and unless it is rebutted and since the defendants have failed to lead any evidence despite opportunities and their evidence was ordered to be closed by the Court, the learned Courts below had relied upon documentary evidence led by the plaintiffs to opine that they are the owners of the property in dispute which RSA No.4437 of 2010 (O&M) -3- has already been redeemed and in the absence of any evidence much less to prove the claim of the defendants that they had purchased the suit property from Parmatma Singh (Mortgagee) by way of sale deed, it was held that they were in unauthorized possession. The learned Courts below have also found that as many as six opportunities were granted to the defendants to lead their evidence but neither they filed list of witnesses nor deposited process fee or diet money and even the defendants did not examine themselves in support of their case. In the totality of circumstances, the suit of the plaintiffs has been decreed by both the Courts below. In the instant appeal, which has been filed only by defendant No.3, learned counsel for the appellant has submitted that defendant No.3 had purchased 101 share out of 1334 kanals 13 marlas of land, therefore, he has become co-sharer and as such the suit for possession by itself is not maintainable rather the plaintiff should have filed a suit for partition. I have heard learned counsel for the appellant and perused the record. In the absence of any evidence much less oral or documentary led by the defendants, their pleadings would not take the place of proof. Moreover, it is established on record by the plaintiffs by way of documentary evidence that the land falling in Rect. No.37 Killa No.4/1 (5-16) has been duly redeemed and there is no evidence that the said land has been purchased by the defendants from the mortgagee in possession, the defendants have no right to retain the possession of the said land and have also no right to say that the plaintiff should file a suit for partition instead of suit for possession as he has become the co-sharer in the land in dispute. To my mind, there is no question of law much less substantial involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908. In view thereof, present appeal is dismissed in limine. No costs. (RAKESH KUMAR JAIN) November 26, 2010 JUDGE Vivek