RSA No. 490 of 2009 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 490 of 2009 (O&M) Date of Decision : 28.1.2009 Darshan Singh & another. .......... Appellants Versus Kartar Singh & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vipin Mahajan, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 18.12.1999 and 22.12.2008 passed by the learned Courts below vide which suit filed by the plaintiff-respondent for declaration that plaintiff-respondent is owner in possession to the extent of 1/3rd share of land measuring 35 Kanals 11 Marlas, has been ordered to be decreed. The plaintiff / respondent set up a case that he was owner in possession of the land to the extent of 1/3rd share of land measuring 35 Kanals 11 Marlas but the name of plaintiff and defendant No.1 was illegally not entered in the ownership column of the revenue record. The land was originally owned by Sawan Singh. father of the plaintiff and grandfather of defendants. Sawan Singh had three sons i.e. plaintiff, Ram Singh and Teja Singh and defendant No. 1 was the son of RSA No. 490 of 2009 (O&M) -2- deceased Ram Singh whereas defendants No. 2 to 4 are sons of deceased Teja Singh. Defendant No.1 was impleaded as a party being proforma respondent. The suit was opposed on the plea that plaintiff and defendant No.1 have no right or interest in the property. The contesting defendants were owner in possession. The plaintiff was merely licensee. It was pleaded that defendants No. 2 to 4 have inherited the land from Teja Singh, who was sole and absolute owner of the property. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that Sawan Singh, father of the plaintiff and grandfather of defendant No.1 owned land in Pakistan. He died in 1947 while coming from Pakistan to India. The allotment of land in dispute was made in lieu of the land left by Sawan Singh in Pakistan. The allotment of land was made in favour of Teja Singh in lieu of land left by late Sawan Singh in Pakistan. However, each brother was in possession of 1/3rd share as owner. Defendants No. 2 to 4 claimed themselves to be owner by inheritance and asserted that plaintiff was in possession as a licencee. The learned Courts below on the basis of appreciation of evidence as well as preponderance of reasoning came to the conclusion that the land was allotted in lieu of the land left by Sawan Singh in Pakistan. The learned Courts below rightly held that it could not be believed that each legal representative of Sawan Singh was allotted 49 kanals 9 marlas, as was claimed by the defendant-appellant. RSA No. 490 of 2009 (O&M) -3- The learned counsel for the appellant contends that the appeal raises following substantial question of law :- “Whether the judgment and decree is contrary to admissions, and outcome of misreading of evidence brought on record thus perverse ? In support of the substantial question of law the learned counsel for the appellant contends that the plea set up by the plaintiff in the suit was that Sawan Singh during his life time had partitioned the land in favour of all the brothers. This stand was found to be false and, therefore, the findings recorded by the learned Courts below cannot be sustained. The learned counsel for the appellant also referred to the cross- examination of PW4, which reads as under :- “The suit is pending for last many years. I received notice of the suit. I have engaged plaintiff Advocate and I have not engaged separate lawyer in the case. I have been coming on all the dates. The land in dispute was allotted after three years of partition. My father had died prior to partition. The land is allotted to us from Jalandhar. The revenue entries are made in the manner the allotment is done. The land which was allotted to us was divided in three shares. The consolidation in this Village took place about 30-35 years ago. I was not preset at the spot. I used to come and go. The land which was allotted was distributed between three parties equally. One share was given to Teja Singh, one to Ram Singh and one to Kartar Singh. It is correct that after allotment when the 'Parchanama' reached Patwari RSA No. 490 of 2009 (O&M) -4- at that point of time the division was made. The land was 12-13 Killas. At the time of 'Istemal' no body objected. I was not present at the spot. The respondent Nos. 2 and 4 live at village Sangarpura. These respondents were to Sangarpura immediately after creation of Pakistan. At Miani only Kartar Singh is living. It is correct that respondent Nos. 2 to 4 used to give land to Kartar Singh. It is wrong that plaintiff has no ownership rights in the disputed land. It is also wrong that I have given false statement in the Court to help the plaintiff.” and contends that the judgment and decree deserves to be set aside as it is contrary to admission made that each brother was allotted separate land. On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The stand of the plaintiff that the property was partitioned during life time of Sawan Singh. Though, not correct but it has been proved by documentary evidence that each party was in possession of their respective 1/3rd share. The appellants claimed that the plaintiff was holding the property as lincencee under them. The documentary evidence thus shows that all equal heirs of late Sawan Singh was in possession of their share, through land was allotted in the name of Teja Singh. The learned Courts below on appreciation of evidence rightly held that the land was allotted to Teja singh in lieu of land left by his father in Pakistan. The suit land though allotted in the name of Teja Singh and not in the name of other legal heirs but it was for benefit of others, as Teja RSA No. 490 of 2009 (O&M) -5- Singh had no independent claim. Appellant can draw no benefit from cross-examination of PW4 as admission made in the cross-examination is totally false and contrary to revenue record brought on record. PW-4 seems to have wrongly admitted, the assertion made by defendant-appellant in cross-examination. The defendants No. 2 to 4 were in know of the fact that total land allotted was 49 Kanal 9 Marlas and not 148 Kanal 7 Marlas, as per admission. The appellant/ defendant failed to prove by cogent evidence that each son of Sawan Singh was made allotment, as claimed. The admission of PW-4 thus is contrary to documentary evidence. The defendant/ appellant can get no benefit from it. It cannot be said that the judgment passed by the Courts below is outcome of misreading of evidence or contrary to admission made to term it as perverse as claimed. The substantial question of law as claimed does not arise. The concurrent findings of fact recorded by the learned Courts below cannot be interfered in the regular second appeal. No merit. Dismissed. 28.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE