IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.696 of 2005 Date of Decision: 16.3.2009 Gunit Sidhu and another. ....... Appellants through Shri G.S.Nagra,Advocate. Versus Bhai Shaminder Singh (since deceased) through his Legal Representatives. ....... Respondents through Shri B.R.Mahajan,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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 the Digest? .... Mahesh Grover,J. This appeal is directed against judgment and decree dated 30.11.2004 passed by the Additional District Judge, Bathinda (hereinafter described as `the First Appellate Court') whereby the appeal of the legal representatives of the plaintiff-Bhai Shaminder Singh (since deceased) was accepted and the judgment & decree dated 20.2.2003 of the Civil Judge (Senior Division), Bathinda (referred to hereinafter as `the trial Court') were set aside. A suit for permanent injunction was filed by Bhai Shaminder Singh for permanent injunction seeking to restrain Bhai Amrinder Singh (since deceased and now represented by his legal heirs, who have preferred R.S.A.No.696 of 2005 -2- .... the instant appeal) from interfering in his peaceful possession over the land in dispute. It was pleaded that he was exclusive owner and in possession of the suit land. The claim of Shaminder Singh was resisted by Amrinder Singh and it was pleaded that the former was not lawful owner and in peaceful possession of the land measuring 61 kanals 6 marlas. Further qualifying his defence, Amrinder Singh averred that Shaminder Singh was real brother of his father-Bhai Mohinder Singh and one Bhai Birinder Singh. It was further averred that all these three brothers were joint in mess and were owners in possession of various properties. A family settlement was stated to have been effected in the year 1977 and therein, an area of 184 kanals which was a sanctioned garden, was divided amongst the three brothers equally. Sixty one kanals six marlas six sarsahi came to the share of Bhai Mohinder Singh out of khasra no.40//26 and thereafter, he continued to be in physical possession of this land. After the demise of Bhai Mohinder Singh, Amrinder Singh claimed that he entered the peaceful possession of the said land. To demonstrate his possession, records of the Canal Department since Kharif,1977 to date was adverted to. The parties went to trial on the following issues:- 1. Whether the plaintiff is owner in possession of the disputed land?OPP 1-A. Whether cause of action survives in favour of applicants Surinder Kaur and Manvinder Singh, LRs of deceased plaintiff?OPP (Framed on 4.10.2002) R.S.A.No.696 of 2005 -3- .... 1-B. Whether the defendant has made any unauthorised amendment or assertion in the amended written statement, if so, its effect?OPP (Framed on 2.1.2003) 2. Whether defendant has got land measuring 61 kanals 6 marlas 6 Sarsahi in a family settlement as alleged/OPD 3. Whether plaintiff is entitled to injunction as prayed for?OPP 4. Whether defendant has become owner of land measuring 61 kanals 6 marlas 6 Sarsahi by way of adverse possession in the alternative?OPD 5. Whether plaintiff does not have locus standi to file the suit?OPD 6. Relief. On appraisal of the entire evidence before it, the trial Court dismissed the suit of Shaminder Singh, but, in appeal, its findings were upset by the First Appellate Court, which has resulted in the filing of the present Regular Second Appeal. Learned counsel for the appellants contended that the findings of the First Appellate Court are perverse as it has ignored the family settlement which was entered into the year 1977 vide which the area of 61 kanals 6 marlas 6 sarsahi came to the ownership and possession of Amrinder Singh. He submitted that the conclusion of the First Appellate Court that since the family settlement was not registered, it could not be held to be valid, is erroneous as it was only a family arrangement and its registration was not necessary. For this submission, he relied upon Rohsan R.S.A.No.696 of 2005 -4- .... Singh and others Versus Zile Singh and others, AIR 1988 S.C. 881, wherein it was observed as under:- “...... a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration.” Learned counsel for the appellants further contended that the factum of possession of Amrinder Singh over the suit land was borne out from the entries in the records of the Canal Department, which could not have been ignored. It was next contended that the suit of Shaminder Singh had rightly been dismissed by the trial Court as he did not even care to step into the witness box to testify and it was his son, acting as his power of attorney, who appeared as a witness and since he had failed to prove his case by examining himself, an adverse inference should have been drawn against him and his suit ought to have been dismissed. To support this contention, reliance was placed on Iswar Bhai C. Patel @ Bachu Bhai Patel Versus Harihar Behera & Anr., 1999(2) Civil Court Cases 1 (S.C.), wherein it was held that if a party does not enter into the witness box to make statement on oath in support of his pleadings, an adverse inference should be drawn that what he has stated in the pleadings is not correct. Learned counsel for the appellants further argued that the revenue entries which were relied upon by the First Appellate Court could not be taken into consideration and if there was a change reflected in the khasra girdawaries to show possession, the earlier ones could not be relied R.S.A.No.696 of 2005 -5- .... upon. He contended that necessary mutations had been changed and which fact had been duly noted by the trial Court, but the First Appellate Court totally ignored the proceedings whereby the correction of mutations was ordered. In support of this contention, he placed reliance on Bhagat Ram Versus Santa Singh, 2001(4) R.C.R.(Civil) 526 wherein it was observed that after change in subsequent khasra girdawaries the earlier one cannot be relied upon. Lastly, it was contended by the learned counsel for the appellants that merely because there were entries in the revenue record, presumption of possession cannot be raised if there was other evidence to show possession otherwise. Reliance placed on Mohan Balaku Patil and others Versus Krishnoji Bhaurao Hundre (dead) by Lrs, AIR 1999 S.C. 1114, wherein their Lordships of the Supreme Court held that the presumption as to possession cannot be raised merely on the basis of the entries in record of rights. On the other hand, learned counsel for the respondents contended that the family settlement on which reliance was placed was merely on a scrap of paper and was not even proved in accordance with law. It was merely placed on record as Mark-A and, therefore, no weightage could be given to it. It was further contended that the said document being on a plain paper and being unregistered,could not even be looked into for any purpose, much less a collateral purpose. To support this contention, he relied upon Avinash Kumar Chauhan versus Vijay Krishna Mishra, JT 2009 (1) S.C. 656, wherein it was held as follows:- R.S.A.No.696 of 2005 -6- .... “Section 33 (of the Stamp Act,1899) casts a duty upon every person who has authority to receive evidence and every person incharge of a public office before whom the instrument is produced, if it appears to him that the same is not duly stamped, to impound the same. The Parliament has, in Section 35 of the Act, advisedly used the words `for any purpose whatsoever'. The purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking Sections 35 and 38. Although ordinarily an agreement to sell would not be subject to payment of stamp duty which is payable on a sale deed,but having regard to the purpose and object it seeks to achieve the legislature thought it necessary to levy stamp duty on an instrument whereby possession has been transferred. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act. The contention of learned counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. Section 35 of the Act, categorically provided that a document R.S.A.No.696 of 2005 -7- .... of this nature shall not be admitted for any purpose whatsoever,. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purposes.” Learned counsel for the respondents next argued that the entries which were referred to by the learned counsel for the appellants and relied upon by the trial Court, were actually based on the order which came into existence after filing of the suit and, therefore, the same could not be considered. Reliance was placed on Samma Singh Versus Kapur Singh and others, 1997(2) P.L.R. 791 wherein this Court, in paragraph 12 of the judgment, observed as under:- “12. At the out-set, it may be pointed out that only the findings on issues 1 and 2 have been challenged before me. It was pointed out by the learned counsel for the appellants that the learned trial Court had observed that the application for correction of the Khasra Girdawari was moved during the pendency of the suit and the order was also passed during the pendency of the suit on November 19,1985. According to him, this observation is factually wrong, as the suit out of which the present appeal has arisen, was instituted on May 2,1984, whereas application for correction of Khasra Girdawari was made on March 21,1984. Therefore, it cannot be said that the application for correction of Khasra Girdawari was made during the pendency of the suit and the order dated November R.S.A.No.696 of 2005 -8- .... 19,1985 passed by the Assistant Collector 2nd Grade, Nakodar, materially affects the decision of the suit. However, it is available from the record that Khasra Girdawari entries for Harri 1985 and Sauni 1985 were ordered to be corrected by the Assistant Collector 2nd Grade, Nakodar, in favour of Samma Singh, appellant No.1 herein. It is also undisputable that in a suit for permanent injunction on the basis of possession, the Court has to see as to which of the parties was in possession on the date of institution of the suit. In the instant case, the suit was admittedly filed on May 2,1984 and it is not forthcoming from the record that Khasra Girdawari entries were corrected in the name of Samma Singh for the year 1984 or prior thereto. The case of Kapur Singh plaintiff is that the land in dispute was purchased by him on the basis of possession and entries to that effect were made in the Jamabandi for the year 1978-79 and mutation was also sanctioned in his favour. A perusal of Jamabandi for the year 1978-79, Exhibit P-1 reveals that Kapur Singh was recorded to be in cultivating possession of the land in dispute. Exhibit P-2 is the Khasra Girdawari for the crops Kharif 1979 to Rabi 1984. In this document also, Kapur Singh is recorded to be in cultivating possession of the suit land. As observed earlier, Khasra Girdawari entries in respect of Rectangle No.14, Khasra Nos. 13, 14 and 17 were not corrected in favour of Samma Singh. Assuming for the sake of argument R.S.A.No.696 of 2005 -9- .... that application for correction of Khasra Girdawari entries was made by the appellants before the institution of the suit and the order correcting the said entries was also passed during the pendency of the suit, once it is found that Khasra Girdawari entries up to the crop -Rabi 1984 were not ordered to be corrected, it cannot be said that the order, dated November 19,1985 of the Assistant Collector 2nd Grade, Nakodar, has any effect on the rights of Kapur Singh, plaintiff. From the oral as well as documentary evidence, both the Courts below have concurrently found that Kapur Singh was in possession of the land in dispute till the date of the institution of the suit, that is May 2,1984. The order correcting the entries in the Khasra Girdawari does not go to show that after passing of that order, appellant Samma Singh came into possession of the suit land. Not only that, it was not so pleaded even in the written statement. There was no such suggestion put to any of the witnesses in cross-examination. It is relevant to mention here that once the disputes have arisen between the parties, regarding the correctness of Khasra Girdawari entries, the controversy cannot be allowed to be transferred for decision to the Revenue Authorities. If any orders for the correction of the entries in the Khasra Girdawaris have been made by these authorities, those would be irrelevant in the civil proceedings and only the evidence adduced by the parties in connection R.S.A.No.696 of 2005 -10- .... with the truthfulness or falsity of the Khasra Girdawari entries shall have to be assessed independently by the Civil Court. Reference may conveniently be made to a judgment of this Court in Gurnam Singh and others v. S. Jagjit Singh,1972 PLR 211. It was also contended that the entries in the records of the Canal Department could not be preferred over the entries in the revenue records. To fortify this contention, reference was made to a decision of this Court in Birbal Versus Shanker Dev, 2001(3) R.C.R. (Civil) 314 wherein it was observed that Nehri Girdawari cannot be preferred over and above revenue record in respect of land. In so far as the contention of the learned counsel for the appellants that Shaminder Singh did not appear as a witness in support of his case, is concerned, learned counsel for the respondents explained that there is evidence on record to suggest that he had undergone bye-pass surgery and was an old man and, therefore, could not testify before the trial Court during the pendency of the suit. Moreover, he died on 7.5.2002 and it was in these circumstances that his son appeared as PW1 and his case cannot be treated to have been prejudiced on this count. I have thoughtfully considered the rival contentions/ submissions and have carefully gone through the whole record. In my opinion, the following substantial questions of law arise for determination in this appeal:- 1. Whether the judgment and decree of the First Appellate R.S.A.No.696 of 2005 -11- .... Court are the result of non-consideration of the entire evidence? 2. Whether the First Appellate Court has drawn wrong inferences on the facts proved by Amrinder Singh-defendant (since deceased)? As noticed above, Amrinder Singh had pleaded ownership and possession over the suit land on the basis of a family settlement which was not exhibited and proved in accordance with law. It was merely put on record as Mark-A and, therefore, the First Appellate Court has rightly discarded the same. That apart, the other reasoning adopted by the First Appellate Court also appears to be correct that this document was of no evidentiary value as it was merely on a scrap of paper and unregistered. Section 17 of the Indian Registration Act,1908 requires compulsory registration of such documents and also requires the same to be on a stamp paper. In view of the fact that the alleged family settlement was neither registered nor was on a stamp paper, the observations of the Supreme Court in Avinash Kumar Chauhan Versus Vijay Krishna Mishra (supra) are attracted to the facts of this case. Besides, there is evidence in the shape of jamabandis for the years 1969-70 to 1994-95 (Exhibits P2 to P7), which reflect the ownership and possession of Shaminder Singh. When the revenue entries are tested in the backdrop of the plea of ownership and possession of Shaminder Singh, the Court has to accept R.S.A.No.696 of 2005 -12- .... the same for the reason that had there been any family settlement as alleged by Amrinder Singh, the same would have found its way in the revenue record,but the position is to the contrary. It is also settled principle of law that presumption of truth is always attached to the jamabandis. Amrinder Singh had tried to place much reliance on the entries of the Canal Department and it is equally settled principle of law that such entries do not have any significance over and above the revenue entries. Apart from this, the entries which have been referred to by the learned counsel for the appellants regarding some correction in the revenue record was made after the filing of the suit and after the injunction had been granted to Shaminder Singh. The possession of Shaminder Singh was to be seen on the date when he had filed the suit and the revenue entries speaks affirmatively in his favour and to the detriment of Amrinder Singh. In this view of the matter, not much credence can be given to the proceedings which were initiated subsequent to the filing of the suit. The reasoning of the First Appellate Court regarding Shaminder Singh not examining himself as a witness can also not be termed as fallacious for the simple reason that it has come on record that he was an old man, who had undergone bye-pass surgery and he died during the pendency of the suit. In this view of the matter, when his son prosecuted the case, the contention of the learned counsel for the appellants, on this score, cannot be accepted. On the basis of the aforesaid discussion, the questions as mentioned above, are answered against the appellants and it is held that the R.S.A.No.696 of 2005 -13- .... findings recorded by the First appellate Court cannot be termed to be perverse so as to warrant any interference in the Regular Second Appeal. Consequently, this appeal is dismissed being devoid of any merit. March 16,2009 ( Mahesh Grover ) “SCM” Judge