R.S.A.No. 2752 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2752 of 2009 (O&M) Date of decision: 24.10.2009 Sunder Ram ......Appellant Versus Kundan Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Kunal Chhoker Advocate, for the appellant. **** SABINA, J. Plaintiff Sunder Ram filed a suit for declaration and permanent injunction, which was partly decreed by the Additional Civil Judge (Sr.Divn.), Guhla vide judgment and decree dated 6.3.2006 to the extent that the mutation No.5580 beyond 1/4th share was set aside and the same was not binding on the rights of the plaintiff. Aggrieved by the same, plaintiff went in appeal which was dismissed by the Additional District Judge, Kaithal vide judgment and decree dated 8.11.2008 and the findings of the trial Court were R.S.A.No. 2752 of 2009 (O&M) 2 affirmed. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 6 of its judgment, are as under:- “2. Tersely a decree for declaration was sought by the appellant to the effect that he along with respondents No.1 and 2 is co-owner and is in joint possession of the suit land measuring 27 kanals 12 marlas as fully detailed in para 1 of the plaint in equal shares i.e. 1/3rd share each and further declaration was sought that mutation No.5580 and the jamabandi prepared on the basis of mutation entries showing 3/4th share in the name of the respondents No.1 and 2 as owner in possession in place of ½ share on the basis of civil court decree dated28.2.1993 is illegal, wrong, null and void and is ineffective and not binding on the rights of the appellant and are liable to be corrected. A permanent restraint order was sought against respondents No.1 and 2 from alienating the suit land in any manner. 3. It was contended that the land measuring 27 kanals 12 marlas is situated within the revenue estate of Cheeka, Tehsil Guhla District Kaithal. Respondents No.14 and 15 were stated to be minors and the suit was filed against the said minors through their brother R.S.A.No. 2752 of 2009 (O&M) 3 respondent no.9 by alleging that respondent No.9 was having no adverse interest against the interest of the minors. The suit land at one time was owned by the father of the appellant and respondent No. 1 to 8 and grand maternal father of respondents No. 9 to 15 namely Ranjha Ram son of Mehanga. Said Ranjha Ram suffered a decree in civil suit No.224 of 1983 titled as “Kundan v. Ranjha Ram” with regard to half share of the suit land in favour of the respondent Nos. 1 and 2 in equal share and the decree to this effect was passed by the Court of Sh.Lakshman Sharma, the then learned Sub Judge, Kaithal on 28.2.1983. Mutation bearing No.5580 was entered in favour of respondent Nos. 1 and 2 on the basis of civil court decree dated 28.2.1983 on 28.3.1990, but inadvertently, respondents No.1 and 2 were shown to be owner of the extent of 3/4th share in the suit land in place of ½ share. The said mutation entries vide mutation No.5580 were stated to be illegal, wrong and null and void and not binding on the rights of the appellant or respondents No.3 to 15 as 1/4th share was wrongly entered in the name of respondents No.1 and 2. 4 The said Ranjha Ram also suffered a civil court decree in favour of the appellant with regard to R.S.A.No. 2752 of 2009 (O&M) 4 1/4th share in the suit land passed in civil suit No.184 of 1981 titled as “Sunder Ram v. Ranjah Ram” and decree to this effect was passed by the Court of Sh.M.L.Sharma, the then learned Sub Judge Ist Class, Kaithal on 19.3.1981. Mutation was also entered on the basis of said decree in favour of the appellant on 31.7.1992. 5 Said Ranjha Ram kept remaining ¼ share in the suit land in his name which was wrongly and illegally mutated in favour of respondents No.1 and 2 as fully explained above. The said Ranjha Ram expired in October, 1988 leaving behind 1/4th share in the suit land in his name as owner in joint possession and the appellant as well as respondents No.1 to 8 and Laxmi Devi, mother of respondents No.9 to 15 as legal heirs. Laxmi Devi had expired in the year 1991 leaving behind respondents No.9 to 15 as legal heirs. 6 That although 1/4th share in the suit land which was owner and possessed by Sh.Ranjha Ram during his life time has been inherited by the appellant to the extent of 1/10 share and by respondents No.1 to 8 to the extent of 8/10 share equal and Laxmi Devi relinquished their rights in the suit land and thus R.S.A.No. 2752 of 2009 (O&M) 5 appellant and respondents No.1 and 2 became entitled to 1/3rd share each in 1/4th share of Ranjha Ram in the suit land. The share was relinquished by respondents No.3 to 15 as discussed above in a family settlement which was entered into because of love and affection between the parties. Mutation No.5580 showing ¾ share in the suit land in the name of respondents No.1 and 2 is wrong entry and is liable to be declared as such. It was contended that taking undue advantage of wrong entries in the mutation register, respondents No.1 and 2 were trying to alienate 1/4th share owned by Ranjha Ram to the prejudice of appellant and accordingly, a cause of action accrued for filing the present suit. 7 On notice being given, respondents No.1 and 2 contested the suit by submitting that the suit was not maintainable at all and as a matter of fact Ranjha Ram son of Mehanga duly executed his last and final Will dated 21.11.1985 in favour of respondents No.1 and 2 of his share in the land. Ranjha Ram had purchased the land vide registered sale deed dated 29.10.1968. The suit was stated to be abuse of process of law. The plea of estoppel was also raised against the appellant and the suit was further stated to be time barred. The R.S.A.No. 2752 of 2009 (O&M) 6 locus standi of the appellant to file the suit was challenged and it was contended that the appellant was neither owner nor in possession of the suit land. It was contended that muation No.5580 with regard to ¾ share in the suit land in favour of these respondents was correctly entered on the basis of decree dated 28.2.1983 as well as on the basis of Will dated 21.11.1985. Rest of the averments were denied and a prayer was made for dismissal of the suit. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff and defendants No.1 and 2 are co-sharer in joint possession of the suit land mentioned in para No.1 of the plaint in equal 1/3 share? OPP 2. Whether the mutation No.5580 showing ¾ share of the defendants No.1 and 2 in place of ½ share on the basis of civil court decree dated 28.2.1983 are illegal, null and void and ineffective and not binding upon the rights of the plaintiff and are liable to be corrected, if so, to what effect? OPP 3. If issues No.1 and 2 are proved in affirmative whether the plaintiff is entitled for the relief claimed? OPP R.S.A.No. 2752 of 2009 (O&M) 7 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is estopped by his own act and conduct to this suit ? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the suit is time barred? OPD 8. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. In the present case, the plaintiff had challenged the mutation No. 5580 and the jamanandi prepared thereafter showing defendants No.1 and 2 as owners in possession of 3/4th share instead of half share on the basis of civil Court decree dated 28.2.1983. Admittedly, Ranjha Ram was owner of the land measuring 27 kanals 12 marlas in the revenue estate of village Cheeka. He died in October, 1998. During his life time, Ranjha Ram suffered a consent decree in favour of the plaintiff regarding 1/4th share out of the land owned by him in Civil Suit No.184 of 1981 decided on 19.3.1981. Mutation No.611 was sanctioned in favour of the plaintiff on 31.7.1992 qua 1/4th share. Ranjha Ram also suffered a consent decree regarding half share in the land owned by him in favour of defendants No. 1 and 2 in civil Suit No.224 of 1983 decided R.S.A.No. 2752 of 2009 (O&M) 8 on 28.2.1983. Thus 1/4th share of the land owned by Ranjha Ram remained with him after the passing of the consent decrees in favour of the plaintiff and defendants No.1 and 2. The impugned mutation was sanctioned in favour of defendants No.1 and 2 qua 3/4th share in view of the decree passed in their favour on 28.2.1983. However, the said mutation has been rightly upheld by the Courts below as Ranjha Ram had executed a Will in favour of defendants No.1 and 2 qua 1/4th share in the land owned by him. The Will dated 21.11.1985 was duly proved by the defendants. Defendants examined DW-2 Gopi Chand, deed writer, and Banta Singh, one attesting witness of the Will Ex.D-1. The said witnesses have proved the due execution of the Will Ex.D-1 executed by Ranjha Ram in favour of defendants No.1 and 2. Defendants also examined handwriting expert to establish that the thumb impressions appearing on the Will matched with the standard thumb impressions of the executant on the written statement in the suit filed by the plaintiff. Although the Will Ex.D-1 is not a registered document but it has been duly proved to have been executed by executant Ranjha Ram by defendants No.1 and 2. Since mutation had been sanctioned in favour of defendants No.1 and 2 regarding 3/4th share in the land owned by Ranjha Ram, there was no occasion for them to produce the Will. However, when the plaintiff challenged the mutation sanctioned in favour of defendant No.1 qua ¾th share in the suit land, necessity arose for the defendants to produce and prove the Will Ex.D-1 executed in their R.S.A.No. 2752 of 2009 (O&M) 9 favour. In these circumstances, the Courts below had rightly held that the Will Ex.D-1 was a genuine document and was not surrounded by any suspicious circumstances. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 24, 2009 anita