R. S. A. No. 2396 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2396 of 2011 (O&M) Date of Decision : May 27, 2011 Joginder Kaur and others .... Appellants Vs. Nirmal Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kuldip Sanwal, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 6637-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of one day in filing the appeal is condoned. C. M. No. 6638-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 34 days in re-filing the appeal is condoned. Main Appeal : Defendants no.1 to 4, having failed in both the courts below, R. S. A. No. 2396 of 2011 (O&M) 2 are in second appeal. Respondent no.1-plaintiff Nirmal Singh filed suit against appellants and against Jaswinder Singh as proforma-defendant no.5 (since deceased and represented by proforma respondents no.2 to 5 as his legal representatives). The plaintiff alleged that he purchased 21 kanals 14 marlas land from Jaswinder Singh – proforma-defendant no.5 vide sale deed dated 09.11.1993 and became owner in possession thereof. However, in the sale deed, due to typographical error, Khasra No.37//7 (8-0) was wrongly mentioned in place of Khasra No.45//7 (8-0). Accordingly, plaintiff filed suit on 28.02.1997 against defendant no.5 for rectification of the sale deed. The said suit was decreed on 27.10.1997. Pursuant to the decree, supplementary sale deed for rectification of the original sale deed was executed in favour of plaintiff through Executing Court. Mutation was also accordingly sanctioned regarding suit land of Khasra No.45//7 in favour of plaintiff. The plaintiff continued in possession thereof and Khasra Girdawari was also recorded in his name. However, defendants no.1 to 4 dispossessed the plaintiff from the suit land and are in illegal possession thereof. Accordingly, plaintiff claiming himself to be owner of the suit land filed suit for possession of the suit land measuring 08 kanals comprising of Khasra No.45//7. Defendants no.1 to 4 contested the suit, whereas defendant no.5 was proceeded ex-parte. Contesting defendants broadly denied the plaint R. S. A. No. 2396 of 2011 (O&M) 3 averments. It was pleaded that defendant no.5 was not owner of the suit land at the time of sale deed dated 09.11.1993. On the contrary, defendants no.1 to 4 had taken the suit land in exchange from Navdeep Kaur and accordingly, defendants no.1 to 4 are owners in possession of the suit land and plaintiff has no concern therewith. It was also pleaded that defendants no.1 to 4 were not made party to the previous suit regarding rectification of the sale deed. Possession of defendant no.1 to 4 over the suit land is legal. Learned Civil Judge (Junior Division), Patiala, vide judgment and decree dated 28.11.2008, decreed the plaintiff's suit. First appeal preferred by defendants no.1 to 4 stands dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 29.11.2010. Feeling aggrieved, defendants no.1 to 4 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has proved his case by leading cogent documentary evidence. On the other hand, case of defendants no.1 to 4 is based on alleged exchange, which they have miserably failed to prove. In the first instance, it is significant to notice that defendants no.1 to 4 have not even pleaded as to when the alleged exchange had taken place. Consequently, it cannot be said that the alleged exchange had taken place before sale deed dated 09.11.1993 was executed by defendant no.5 in favour of plaintiff. Secondly, there is no evidence to prove that any such exchange had taken R. S. A. No. 2396 of 2011 (O&M) 4 place at all. There is only self-serving oral statement of defendant no.3 Surinder Singh as DW-1. The said statement is not sufficient to prove the alleged exchange. Counsel for the appellants referred to remarks mentioned in Jamabandi for the year 1991-92 regarding sanction of mutation regarding alleged exchange. However, in the said remarks in the Jamabandi, there is no date of the alleged exchange or the date of sanction of mutation of alleged exchange. Moreover, the said mutation has also not been produced in evidence by the defendants. The said mutation could show as to when the alleged exchange took place and when the mutation was sanctioned. It thus becomes manifest that the defendants have neither pleaded as to when the alleged exchange took place nor proved the same. The defendants have intentionally withheld the said fact because otherwise, the defendants could have easily produced the mutation of alleged exchange and could have also pleaded as to when the alleged exchange had taken place. It they had done so, it would have depicted whether the alleged exchange had taken place before the sale deed of the plaintiff or thereafter. Since the defendants have not done so, obviously, adverse presumption arises against them and it can be safely presumed that alleged exchange, if any, had taken place after the sale deed in favour of the plaintiff. Even otherwise, the alleged exchange has not been proved. Mutation of alleged exchange has not been produced in evidence nor Navdeep Kaur, from whom defendants claimed to have taken the suit land in exchange, has been examined as witness nor there is R. S. A. No. 2396 of 2011 (O&M) 5 any other document to substantiate the plea of alleged exchange. There is also no evidence to depict that defendants no.1 to 4 came in possession of the suit land pursuant to alleged exchange. For the reasons aforesaid, I find that the suit has been rightly decreed by the courts below. Concurrent finding recorded by the lower courts in favour of plaintiff is justified by the evidence on record and is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. May 27, 2011 ( L. N. MITTAL ) monika JUDGE