RSA No.1275 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1275 of 1992 Date of Decision: 9.3.2009 Mangat Ram ..Appellant Vs. Chhitru (dead throughLRs. & Ors.) ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Anil Khetarpal, Advocate, for the appellant. Mr.S.P.Laler, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 11.12.1991 passed by the learned lower appellate court vide RSA No.1275 of 1992 2 which suit filed by the plaintiff/appellant for permanent injunction and possession has been ordered to be dismissed. The plaintiff/appellant brought a suit on the pleadings that he is owner in possession of 218 kanals 17 marlas of land comprised in Khewat Nos. 38, 39 and 40 situated in the revenue estate of village Sarai Sukhi in the year 1954. The plaintiff executed a sale deed in favour of Chhitru and Phool Singh, defendants No.1 and 2, the predecessor-in-interest of defendants No.3 and 6 to 11 on 22.12.1954 for a sale consideration of Rs.1500/- in respect of the agricultural land measuring 60 kanals. A sum of Rs.800/- was said to have been paid to the plaintiff by the vendees at the time of registration of the sale deed in the presence of Sub-Registrar and the remaining amount of Rs.700/- was to be paid later on at the time of attestation of mutation. It was alleged that in consideration thereof possession of the land measuring 50 kanals falling towards the East of the railway track was transferred and the possession of the remaining land was to be transferred in favour of the vendees on receipt of Rs.700/- being the balance price. The entire land owned and possessed by the plaintiff was in 2 blocks. Half of the land was towards the west of Ambala-Delhi railway track whereas remaining half was towards the east of said track. As per the stipulation in the sale deed land out of Banjar block of land on the eastern side of track was sold. The plaintiff further claimed that he has been in possession of the land measuring 109 kanals 1 marlas comprised in Khewat No.40 RSA No.1275 of 1992 3 Khatauni No.90 Rect No.11 Killa No.11, 12, 22/2, 23/2, Khatauni No.93, Rect No.11, Killa No.3, 4, 7, 8 & 9, Khatauni No.94 Rect No.11 Khasra No.10, Khatuni No.95 Rect No.11 Killa No.13, 14, 18, 19, 20, 21/2, 22/2,22/1 and 23/1, Make No.96 Rect No.10, Killa No.25 which fell towards the west of the track since the date of execution of the sale deed i.e. 22.12.1954 as owner. The plaintiff pleaded ownership vis-a-vis his title with respect to the part of land whereas he claimed adverse possession over the remaining suit land. Partition proceedings were initiated by the defendants wherein the revenue authorities considered the suit land as joint holding of the parties. The plaintiff, therefore, filed the suit for injunction with a prayer that defendants be restrained from dispossessing him from the suit land, as detailed in para no.4 of the plaint. Defendants No.4 and 5, 12 and 13 were said to be other co- sharers in the joint holding and they were impleaded as proper parties to the suit. Defendants No.4 and 5 contested the suit by pleading in the written statement that the plaintiff had no locus standi to file the suit. It was also claimed that the suit was not maintainable and further that the plaintiff was estopped from filing the present suit by own act and conduct. Defendants No.1 to 3 and 6 to 11 filed separate written statement wherein it was pleaded that the suit was time barred. Jurisdiction of the civil court to entertain the suit was also challenged. The suit was said to be bad for proper court fee and jurisdiction. Plea of estoppel was also RSA No.1275 of 1992 4 raised. On merit, it was pleaded that the plaintiff had executed a sale deed in their favour on 22.12.1954 in respect o the land measuring 20 kanals 12 marlas being 1/3rd share of 60 kanals 12 marlas comprised in Khewat No.71min Khatauni No.80mon and land measuring 30 kanals 16 marlas out of land measuring 158 kanals 5 marlas comprised in Khewat No.72 Khatauni No.81 for a consideration of Rs.1500/- and that the entire sale consideration stands paid. Defendants admitted the possession of the plaintiff over the land falling towards the west of railway track to contend that same is liable to be adjusted at the time of partition. Plea of plaintiff qua adverse possession was denied and it was pleaded that co-sharer cannot claim adverse possession as against other co-sharer in respect of the property which is subject-matter of join holding. After filing of rejoinder, learned trial court was pleased to frame the following issues:- 1. Whether the defendants have no concern with the land falling on Western side of the railway track as alleged? OPP 2. Whether the plaintiff has been in possession of the land measuring 109 kanals 1 marla described in para no.4 of the plaint as alleged? OPP 3. Whether the defendants got mutation sanctioned wrongly in their favour as alleged in para no.5 of plaint? OPP RSA No.1275 of 1992 5 4. Whether there was compromise between the parties as mentioned in para no.6 of the plaint. If so, its effect? OPP 5. Whether the plaintiff has become owner by way of adverse possession of the land mentioned in para no.4 of the plaint? OPP 6. Whether the civil court has no jurisdiction to try the present suit? OPD 7. Whether the suit is time barred? OPD 8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 9. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 10. Whether the sale deed is void and voidable as alleged? OPD 11. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 12. Whether the suit is barred by provisions of 11 CPC? OPD 13. Whether the suit is not maintainable in the present form? OPD 14. Whether the plaintiff has no cause of action against the defendants No.4 and 5? OPD 15. Whether the plaintiff has no concealed true and material facts from the courts? If so its effect? OPD 16. Relief. RSA No.1275 of 1992 6 On issue No.1, learned trial court was pleased to hold that the defendants did not have any concern with the land falling on the western side of railway track as the defendants No.1 to 3 and 6 to 11 had failed to prove the payment of Rs.700/- which was agreed to be paid at the time of sanctioning of mutation. On issue No.2 learned trial court was pleased to hold that the plaintiff has been in possession of land measuring 110 kanals 1 marlas as detailed in the plaint. Issue No.3 was also decided in favour of the plaintiff and against the respondent/defendants by holding that mutation was wrongly attested in their favour in view of the failure of the defendant/respondents to have proved payment of Rs.700/-. On issue No.4, learned trial court was pleased to hold that there was no compromise between the parties. On issue No.5 it was held that the plaintiff has perfected his title by way of adverse possession. Suit was found to be within limitation. Issues No.6, 7, 8, 11 and 15 were decided against the defendant-respondents being not pressed, whereas issue No.9 was also decided in favour of the plaintiff/appellant and against the defendant/ respondents as no evidence was led in support of the plea of estoppel. Sale deed was, however, held to be not void. On issue No10 learned trial court was pleased to hold that the sale deed was valid but under the said sale deed they were only entitled to retain the possession of the land falling on the eastern side. Suit was held to be not barred by provisions of section 11 of the Code of Civil Procedure RSA No.1275 of 1992 7 (for short the Code) and issue No.14 was decided in favour of the plaintiff and it was held that the plaintiff appellant had cause of action. Consequently, the suit was ordered to be decreed. In appeal, learned lower appellate court reversed the findings recorded by the learned trial court on issues No.1, 2, 5 and 10. In the appeal, defendant/respondents moved an application under Order 41 Rule 27 of the Code to lead additional evidence by producing the copy of mutation sanctioned in their favour. The application was allowed and mutation was taken on record as Ex.D.1. Learned lower appellate court held that Ex.D.1 was passed in the presence of the plaintiff/appellant and therefore, it carry the presumption that a sum of Rs.700/- was paid at the time of mutation. The learned lower appellate court accordingly held that once the sale deed stood proved on record it could not be said that the defendant/respondents did not have any concern with the land falling on the western side as part of that land was also sold to the defendant/respondents under registered sale deed. The learned lower appellate court further held that the possession of the plaintiff over the land was as co-sharer and therefore, the parties could seek partition of the land. The learned court also reversed the findings on issue No.3 and held that mutation was rightly sanctioned in favour of the defendant/respondents in the presence of the plaintiff/appellant. However, finding on issue No.4 was upheld whereas on issue No.5 it was held that the plaintiff has failed to prove adverse possession as RSA No.1275 of 1992 8 no co-sharer could claim his possession to be adverse to other co-sharer. Finding on issues No.6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 were affirmed. In view of reversal of finding son issues No. 1 to 5 and 10 judgment and decree passed by the learned trial court was reversed and the suit filed by the plaintiff/appellant was ordered to be dismissed. Learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration: Whether in the absence of receipt showing the payment of Rs.700/- at the time of mutation, finding of the learned lower appellate court based on presumption is perverse and therefore, liable to be set aside? In support of the substantial question of law, the learned counsel for the appellant contends that the learned trial court had rightly held that the defendant/respondents have failed to prove on record the payment of Rs.700/- to claim that they were entitled to possession and seek partition of the property. Once no receipt was produced before the learned lower appellate court even though opportunity to lead additional evidence was given to them learned lower appellate court could not have reversed the findings merely on the basis of presumption. However, the plea of the learned counsel for the appellant RSA No.1275 of 1992 9 cannot be accepted. Once the mutation was sanctioned in favour of the defendant/respondents on the basis of sale deed in the presence of the plaintiff/appellant no fault can be found with the findings recorded by the learned lower appellate court holding that a sum of Rs.700/- stood paid at the time of sanctioning of mutation. The plaintiff/appellant raised no objection to sanctioning of mutation on the basis of sale deed. Once the finding of fact has been recorded by the learned lower appellate court holding that a sum of Rs.700/- was paid coupled with a fact that the plaintiff had claimed title on the basis of adverse possession showed that he admitted the ownership of defendant/respondents. The learned lower appellate court rightly held that as co-sharer he could not claim adverse possession against co-owner. The substantial question of law in view of the facts and circumstances of the case and in view of the evidence on record, is answered against the plaintiff/appellant. The appeal is, consequently, ordered to be dismissed but with no order as to costs. 9.03.2009 (Vinod K.Sharma) rp Judge