R.S.A. No. 580 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 580 of 2010 (O&M) Date of decision : 4.8.2010 ... Ram Sarup and others ................Appellants vs. Vijay Kumar and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. S.P.S. Tinna, Advocate for the appellants ... K.C. Puri, J. This is second regular appeal preferred by the defendant- appellants against the judgment dated 25.11.2009 passed by Sh. R.C. Dimri, Additional District Judge, Sirsa, vide which the appeal preferred by the plaintiffs against the judgment dated 30.11.2007 passed by Sh. Rajesh Sharma, Civil Judge (Junior Division), Dabwali, was partly accepted in respect of land measuring 27 kanal 11 marlas. Briefly stated, the plaintiffs filed a suit for declaration to the effect that plaintiffs No. 1 to 6 are co-sharers in the suit land being legal heirs of Kuldeep son of Ram Rakh and plaintiffs No. 7 to 10 are co-sharers in the suit land being legal heirs of Ram Rakh son of Jawana and being legal heirs of Ram Payari widow of Ram Rakh in R.S.A. No. 580 of 2010 -2- the suit land situated at village Jandwala Bishnoian Tehsil Dabwali, District Sirsa and defendants No. 1 to 4 were owners being legal heirs of Ram Rakh to the extent of land measuring 35 kanal 12 marlas and they sold the land more than their share to defendants No. 5 to 8 vide sale deeds No. 4080, 4079, 4081 and 4082 and said sale deeds are wrong, null and void as the vendors had no right, title or interest more than 35 kanal 12 marlas of land. It is also pleaded that plaintiffs No. 1 to 6 are in exclusive possession of land measuring 27 kanal 11 marlas as described in the heading of the plaint and plaintiffs No. 7 to 10 are in exclusive possession of land measuring 16 kanals. It is alleged that Ram Rakh son of Jawana Ram was owner in possession of land measuring 451 kanal 19 marlas in Khewat No. 9, 87 kanal 13 marlas being 1/4th share in Khewat No.13. 193 kanal 6 marlas being 73/2976 share in Khewat No. 21, 71 kanal 12 marlas being 17/290 share in Khewat No. 23, 194 kanal 15 marlas comprised in Khewat No. 97, 8 kanal 14 marlas being 1/6th share in Khewat No.110. 30 kanal 10 marlas comprised in Khewat No. 177 and 133 kanal 10 marlas being 47/5504 share in Khewat No. 179 as per jamabandi for the years 1968-69. The said Ram Rakh died on 17.12.1972 and mutation No.767 of his inheritance was sanctioned in favour of his 13 legal heirs as given in para No. 1 of the plaint. He was a big land owner and as per the provisions of Punjab Security of Land Tenures Act, 1953, in the year 1960-61, some portion of his land was declared surplus and out of the surplus land, some portion was allotted to land- less persons as per the allotment scheme and some of its portion was purchased by old and settled tenants under Section 18 of the said Act. R.S.A. No. 580 of 2010 -3- At the time of his death, he owned 709 kanal 6 marlas of land including 246 kanal 7 marlas land which had already been declared surplus in the year 1960-61 and had vested in the Government of Haryana as per the provisions contained in Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972. Tenants upon the so declared land, had been settled. Mutation No. 1153 was accordingly attested in favour of the State qua the land so declared surplus. After deducting the area declared surplus, the said Ram Rakh remained owner of 462 kanal 19 marlas of land and if the said land is partitioned in 13 shares amongst the persons given in para No. 1 of the plaint, share of each came out to be 35 kanal 12 marlas. It was then pleaded, as stated above, that respondents No. 1 to 4 sold the land in excess of their shares to respondents No. 5 to 8 vide above stated exhibited sale deeds. Since they had already sold their entire land, they were no more the co-sharers in the suit land. As per the plaintiffs, since respondents No. 1 to 4 were only having the share of 35 kanal 12 marlas each, the sale of land by them in excess of their respective shares, as stated above was void. As per them, respondent No.9 had no interest in the suit land. Other facts, which are not germane were also pleaded in the suit. Upon put to notice, respondents pleaded the factum of death of said Ram Rakh on 17.12.1972. However, it was emphatically denied that out of the land measuring 709 kanal 6 marlas, 246 kanal 7 marlas had been declared to be surplus and has vested in the State of Haryana. The action of respondents No. 1 to 4 in executing the sale deeds Exhibits PW-2/A to PW-2/D were justified by pleading that R.S.A. No. 580 of 2010 -4- they were within their rights to alienate their respective shares. The factum of alienation in excess of their respective shares, was disputed by them tooth and nail. It was also pleaded that respondents No. 1 to 4 were still the co-sharers in the suit land and respondent No.1 was in exclusive possession of 27 kanal 11 marlas of land comprised in Khewat No. 249. They also pleaded that 16 kanal of land comprised in said Khewat pleaded by the plaintiffs to be in their possession was in fact the joint possession of respondents No. 1 to 4. So far as the share of Ram Piari, widow of Ram Rakh is concerned, it was pleaded that in a family settlement, she had given her land to all the legal heirs of Ram Rakh, per strip. Additionally, it was also pleaded that the suit in question was not within limitation as sale deeds in question were executed in the year 1977, which fact was very well in the knowledge of the appellants. Accordingly, prayer for dismissal of the suit was made. Replication was filed by the plaintiffs reiterating their stand taken in the plaint and controverting the pleas taken in the written statement. From the pleadings of the parties, following issues were framed:- 1. Whether Ram Rakh was owner in possession of the land measuring 451 kanals 19 marlas and he had ¼ share out of the land 87 kanals 13 marlas, 73/2976 share of 193 K.6M, 17/290 share of 71 K.12 M and 194 K.15M, 1/6 share of 8 K.14 M and Khewat No. 177 measuring 30 K.10 M, 347/5504 share of 133 K.10 M, as alleged? OPP. R.S.A. No. 580 of 2010 -5- 2. Whether the area 246 Kanals 7 Marlas of the land of Ram Rakh was declared surplus in the year 1960-61 and thereafter Ram Rakh remained owner of 462 K. 19 M at the time of his death, if so, what effect? OPP. 3. Whether each of the LRs of Ram Rakh inherited the land measuring 35 K. 12 Marlas if so, to what effect? OPP. 4. Whether the defendants No. 1 to 4 sold the land vide sale deeds No. 4080, 4079, 4081, 4082 dated 4.3.1977 which they sold to defendants No. 5 to 8 in their shares if so, what effect? OPP. 5. Whether Ram Piari became owner in possession of 4/13 share and after her death Surinder Kumar etc. as alleged in the plaint inherited her share? OPP. 6. Whether defendants No. 8,9, 10 transferred their 3/13 share to Ram Piari by way of civil court decree and thus Ram Piari became owner of 4/13 share? OPP. 7. Whether defendants Parhlad, Jaipal and Pawan Kumar and Brashma Devi are owners of land measuring 35 kanals 12 marlas each? OPP. 8. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP. 9. Whether the suit is within limitation? OPD 10.Whether the plaintiffs have no cause of action to maintain the present suit? OPD 11.Relief. Plaintiffs examined PW-1 Vijay Kumar, PW-2 Mangat Ram, R.S.A. No. 580 of 2010 -6- PW-3 Surender Kumar and produced certain documents. Defendants examined DW-1 Ram Sarup and after granting so many opportunities, the evidence of the defendants was closed by order on 12.12.2005. No rebuttal evidence was produced. Learned trial Court has taken issues No. 1 to 4 7 and 8 together and all these issues were decided against the plaintiffs. Issue No. 5 was partly decided in favour of the plaintiffs and issue No. 6 was decided in favour of the plaintiffs and against the defendants. Issues No. 9 and 10 were decided against the defendants and consequently, the suit of the plaintiffs was dismissed. Feeling dissatisfied with the above said judgment dated 30.11.2007, passed by Sh. Rajesh Sharma, Civil Judge,( Junior Division), Dabwali, the plaintiffs filed the Ist appeal, which was heard by Sh. R.C. Dimri, Additional District Judge, Sirsa and the same was partly accepted, vide judgment dated 25.11.2009. Plaintiffs No. 1 to 6 were held to be in exclusive possession of 27 kanal 11 marlas of land. So, finding of issue No.8 was reversed. However, the claim of plaintiffs No.7 to 10 regarding 16 kanals of land was not accepted. Feeling dissatisfied with the above said judgment dated 25.11.2009 referred to above, vide which the appeal of the plaintiffs No. 1 to 6 was partly accepted, the present regular second appeal has been filed by the defendant-appellants. Alongwith the appeal, an application under Order 41 Rule 27 CPC has also been filed to produce the copy of order of AC- II Grade, Dabwali. The appellants in para No. 16 of the grounds of appeal have R.S.A. No. 580 of 2010 -7- mentioned that following substantial question of law points have arisen in the present appeal for consideration before this Court:- A) Whether the impugned judgment and decree of Ld. Lower Appellate Court qua issue No.8 is wholly illegal, perverse, contrary to the facts and law on record etc. etc.? B) Whether the appellants are in the exclusive possession of the land comprised in Rect. No. 92 Killa No. 3 (7-11), 4/1 min (2-0), Rect. No. 71 Killa No. 21/2(2-0), 22 (8-0), 25 (8-0), kittas 5, area measuring 27 kanals 11 marlas, comprised in Khewat No. 249? C) Whether the appellants are owners in possession of the land comprised in Rect. No. 92 Killa No. 3 (7-11), 4/1 min (2-0), Rect. No. 71 Killa No. 21/2(2-0), 22 (8-0), 25 (8-0), kittas 5, area measuring 27 kanals 11 marlas, comprised in Khewat No. 249? Learned counsel for the appellants has submitted that finding of the Ist Appellate Court to the effect that plaintiffs No. 1 to 6 are in exclusive possession of land measuring 27 kanal 11 marlas is based upon inadmissible evidence. The revenue record has been corrected. So, permission has been sought to produce the order dated 28.2.2001 passed by AC-II Grade, Dabwali, correcting the Khasra Girdawari from 1999 to 2009 by way of additional evidence. It is submitted that the said document is a part of revenue record and Khasra Girdawari has been corrected in the name of the appellants. The plaintiffs No. 1 to 6 now respondents No. 1 to 6, were never in possession of the land measuring 27 kanal 11 marlas. The Ist Appellate Court has misread R.S.A. No. 580 of 2010 -8- and misinterpreted the evidence on the file. I have carefully considered the said submission, but do not find any force in that submission. The Ist Appellate Court has returned the finding that plaintiffs No. 1 to 6 have been recorded in possession of 27 kanal 11 marlas of land in exclusion to the others. The finding of fact recorded by the Ist Appellate Court is based upon the revenue record. It is settled law that finding of fact recorded by the Ist Appellate Court should not be interfered by the High Court unless the same is perverse. The dispute in the present regular second appeal raised is regarding the possession of 27 kanal 11 marlas of land and no substantial question of law has arisen in the present appeal. The finding of fact recorded by the Ist Appellate Court based upon the revenue record, cannot be interfered into. So, far as application under Order 41 Rule 27 CPC is concerned, the appellants want to produce the order of AC-II Grade, Dabwali, correcting the Khasra Girdawari from 1999 onwards. That order was passed during the pendency of the present civil suit and that finding has not been disputed by the counsel for the appellants. So, any correction made during the pendency of the suit is meaningless. The document sought to be produced was within the knowledge of the appellants and they could have produced the same by exercise of due diligence. The said document is not required by the Court to pronounce proper judgment or for any other substantial cause. So, in these circumstances, the application under Order 41 Rule 27 CPC is meritless and the same stands dismissed. In view of the above discussion, I have no hesitation in R.S.A. No. 580 of 2010 -9- holding that no substantial question of law has arisen in the present appeal and the questions raised by the appellants are not the substantial questions of law. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 4.8.2010 Judge chugh