RSA No.1559 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 23.7.2010. Baldev Singh --Appellant vs. Baljit Singh and another --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.K.Arya,Advocate, for the appellant Rakesh Kumar Jain, J, Defendant is in second appeal against the judgment and decree of first Appellate Court by which the judgment and decree of the trial Court has been reversed. The brief facts of the case are that the defendant executed a registered sale deed dated 16.1.2002 in favour of the plaintiff of land measuring 30 kanals 11 marlas against a consideration of Rs. 4,30,000/-. After purchase of the land, the plaintiff applied on 14.5.2002 for getting the suit land demarcated in which it was found from the Girdawar and Halqa Patwari that the area of khasra No.30//19 is only 11 marlas which has been mentioned in the revenue record as well as in the sale deed as 4 kanals 13 marlas. Thus, title of the defendant qua 4 kanals 2 marlas of land in khasra No.30//19 was defective, but as the defendant had charged price of 4 kanals 2 marlas as well to the extent of Rs. 57708.67 paise, he was bound to return the same to the plaintriff. It was also alleged that as per terms and conditions of the sale, the plaintiff was liable to indemnify and RSA No.1559 of 2010 (O&M) 2 make good the loss in case of defect in the title of the defendant. The plaintiffs requested the defendant to make good the deficiency of the land or compensate in lieu thereof, but he refused, which led to the filing of the suit. In the written statement, besides taking technical preliminary objectiions, it was averred that the defendant had purchased 30 kanals 11 marlas of land from Sukhwinder Singh, Balwinder Singh, Raghbir Singh sons of Kashmir Singh vide a registered sale dated 24.6.1999 and sold the same to the plaintiffs on 16.1.2002. It is alleged that on the basis of sale deed dated 24.6.1999, mutation was sanctioned in his favour and when the plaintiffs purchased the said land, mutation was sanctioned in their favour. On the pleadings of the parties, following issues were framed:- 1.Whether plaintiff is entitled to possession of land measuring 4 kanals 2 marlas out of 2/3 share of the defendant in land measuring 40 kanals 4 marlas ?OPP 2.Whether in the alternative plaintiff is entitled to recovery of Rs.57708-67 ps ?OPP 3. Whether suit is not maintainable in the present form?OPD 4. Whether the plaintiffs have no locus standi to file the present suit ?OPD 5. Whether suit is bad for non-joinder and mis-joinder of necessary parties?OPD 6.Whether this court has no jurisdiction to try the present suit ?OPD 7. Relief. Both the parties led their respective oral as well as documentary evidence. The trial Court dismissed the suit of the plaintifs. In appeal, the First Appellate Court recorded the following findings:- RSA No.1559 of 2010 (O&M) 3 “I find some force in the contention raised by counsel for the appellants/plaintiffs, because as per the sale deed Ex.P.1, the area of Rect No. 30, killa No. 19 has been mentioned as (4- 13) and the same position is in the jamabandi Ex.D.3 and mutation was also sanctioned in favour the plaintiffs/appellants of the area of 4 kanals 13 marlas, but while conducting demarcation report, it has come to the notice that actually the area of Rect No. 30 killa No. 19 is (0-11) instead of (4-13) and this wrong has been came into notice of Revenue Official and action was taken against Vijay Kumar Patwari, who has prepared the wrong jamabandi and mentioned the area of killa No. 19 as (4-13) instead of (0-11). Enquiry was also conducted by Tehsildar Gurdaspur vide which Vijay Kumar patwari was held guilty for preparing wrong record. The counsel for appellants has also tendered into evidence copy of order of Deputy Commissioner dated 9.11.2004 Ex.A-1. Also tendered copy of shajra aks Ex./A.3 and fard babar Ex.A.3, copy of jamabandi for the year 2003-04 Ex.A.4, also copy of jamabandi for the year 1983-84 Ex.A.5, also copy of jamabandi for the year 1988-89 Ex.A.6 in his additional evidence. A perusal of entire record produced by counsel for appellants in additional evidence, it is clear that Rect No.30 killa No.19, is (0-11) instead of (4-13). The necessary correction has also been made in the jamabandi Ex.D.2 by the order of Deputy Commissioner, Gurdaspur. Since it is established by (P.W.3) Santokh Raj Quango while conducting demarcation report that the area of RSA No.1559 of 2010 (O&M) 4 Rect No. 30 killa No. 19 is (0-11) instead of (4-13), the defendant/respondent is liable to compensate the plaintiffs/appellants either by giving the land or by making the payment of land measuring 4 kanals 2 marlas, because the defendant/respondent has already received the sale consideration of 4 kanals 13 marlas while the actual area is (011). The lower court has not considered the evidence produced by the appellants and the lower court is erroneous while deciding issue No.1 against the plaintiffs. Since the defendant has sold the excess property to the plaintiffs/appellants, as there is no land with the defendant to compensate the plaintiffs, as such, the plaintiffs are entitled to get the sale consideration of the land measuring (4-13) which has been received by the defendant/respondent while executing the sale deed in favour of plaintiffs/appellants. As such, the plaintiffs/appellants are entitled for alternative relief of recovery of Rs.57708.67 paise of the sale consideration of land measuring 4 kanals 2 marlas from the defendant. Therefore, the findings of lower court of issues No.1 and 2 are erroneous to the extent that the plaintiffs are not entitled to recover Rs.57708-67 paise”. Learned counsel for the appellants has vehemently argued that the findings recorded by the First Appellate Court are patently illegal and erroneous. He has submitted that substantial questions of law involved in this appeal are that “wherther revenue authorities have got the jurisdiction to make a correction/alteration in the jamabandi after a RSA No.1559 of 2010 (O&M) 5 long gap of more than 21 years ? and “whether a huge chunk of land measuring 4 kanals 2 marlas could be supposed to be missing from the spot”? Learned counsel has basically attacked the demarcation report but has failed to challenge the findings of the First Appellate Court in which it has been recorded that there was a mistake on the part of Vijay Kumar, Patwari, who had prepared wrong jamabandi and mentioned the area of Killa No.19 as 4 kanals 13 marlas instead of 0-11, against whom an enquiry was conducted by Tehsildar in which Patwari was held guilty. The appellant led additional evidence before the First Appellate Court to prove that necessary correction has been made by the order of the Deputy Commissioner, Gurdaspur in respect of the area falling Rectangle No.30, Killa No. 19. I have heard learned counsel for the appellant and perused the record with his assistance. I am in agreement with the findings recorded by the First Appellate Couirt which have been reproduced hereinabove which are based upon the additional evidence led by the plaintiff. Since these facts were not before the trial Court, therefore, the suit of the plaintiff was dismissed. In view of the aforesaid findings of fact recorded by the First Appellate Court and finding no question of law involved in this appeal as envisaged under Section 100 of Code of Civil Procedure,1908 (for short CPC), this appeal is hereby dismissed in limine with no order as to costs. 23.7.2010 (Rakesh Kumar Jain) RR Judge RSA No.1559 of 2010 (O&M) 6