RSA No. 1439 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH RSA No. 1439 of 2010 (O&M) Date of decision:4.11.2011 Sat Narain and another ... Appellants versus Pardeep Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.O.P.Goyal, Sr.Advocate, with Mr.H.S.Ghareo, Advocate, for the appellants. Mr.C.B.Goel, Advocate, with Mr.R.A.Sheoran, Advocate, for respondent No1. ... JORA SINGH, J. Sat Narain and Raj Pal, appellants, filed this RSA No.1439 of 2010 to challenge the judgment and decree dated 27.1.2010 passed in Civil Appeal No.15 of 2009 by District Judge, Jhajjar. Civil Suit No. 201 of 2001/2005 was instituted by Pardeep Singh for declaration and permanent injunction against Jai Lal and others on the allegation that Jai Lal son of Sher Singh, resident of Village Sunderheri, was the owner in possession of land comprised in Khewat No. 96, Rect. No.53, Killa No.3/1 measuring 2 kanals 19 marlas. Out of this khasra number, Jai Lal sold land measuring 0-kanal 7 marlas as per registered sale deed (Ex.P-6) dated 17.3.1992 to Pardeep Singh. Out of the remaining area, Jai Lal sold 81 sq. yards to Ramesh Kumar, defendant/respondent No.3 as per registered sale deed (Ex.P-3) dated 17.2.1994. On the basis of RSA No. 1439 of 2010 (O&M) 2 registered sale deed (Ex.P-3) dated 17.2.1994, Mutation No. 972 was sanctioned on 7.10.1994. Ramesh Kumar sold the area purchased vide registered sale deed (Ex.P-3) dated 17.2.1994 to Siri Chand as per registered sale deed (Ex.P-2) dated 1.3.1996 and on the basis of registered sale deed (Ex.P-2) dated 1.3.1996, Mutation No.1003 was sanctioned on 31.5.1996. After the death of Siri Chand, his estate was inherited by respondents No.4 to 10 but two legal heirs of Siri Chand, i.e., Phool Kumari and Smt.Dharmo sold 13.85 sq. yards to Sat Narain, appellant, as per registered sale deed (Ex.P-1) dated 11.6.2001. On the basis of registered sale deed (Ex.P-1) dated 11.6.2001, Mutation No.1134 was sanctioned on 26.6.2001. Allegation of Pardeep Singh is that he is the owner in possession of the property in dispute as per registered sale deed (Ex.P-6) dated 17.3.1992. After evidence, suit filed by Pardeep Singh was decreed vide judgment and decree dated 25.2.2009. Against the judgment and decree dated 25.2.2009 by Additional Civil Judge (Sr. Division), Jhajjar, appeal was preferred by the appellants but the same was dismissed vide judgment and decree dated 27.1.2010. I have heard learned counsel for the appellants, contesting respondent No.1 and have gone through the evidence on the file. Learned counsel for the appellants argued that Sat Narain- appellant purchased 13.85 sq. yards as per registered sale deed (Ex.P-1) dated 11.6.2001 from the LRs of Siri Chand, who purchased the property RSA No. 1439 of 2010 (O&M) 3 vide registered sale deed (Ex.P-2) dated 1.3.1996 from Jai Lal, who was the owner in possession of Khasra No.53//3/1 (2-19). Contesting respondent No.1 is not the owner in possession of the property in dispute marked ABCD shown in the site plan. Application was moved to appoint Local Commissioner but the same was dismissed by the trial Court. Again application to appoint Local Commissioner was moved before the first Appellate Court but the same was also dismissed. Local Commissioner be appointed to locate the property of the appellants purchased vide registered sale deed (Ex.P-1) dated 11.6.2001 and the property purchased by the contesting respondent vide registered sale deed (Ex.P-6) dated 17.3.1992 and the Court is to see that:- “1. Whether the documentary evidence in the form of revenue record can be rebutted by oral evidence of the parties? 2. Whether the impugned judgments and decrees are legal and sustainable under the law and facts? 3. Whether manifest injustice has been caused to the appellant/defendant No.1? 4. Whether the plaintiff/respondent who has mis-stated the facts and misled the Hon'ble Court is entitled to discretionary relief? 5. Whether the rightful possession over specific portion can be proved only by demarcation of the disputed property?” Reliance was placed on (i) 2010 (2) Civil Courts Cases 713, Mukunda Dhal alias Mukundagarag Dhal and others vs. Sri Bhagabat RSA No. 1439 of 2010 (O&M) 4 Goswain and others and (ii) 2004 (3) RCR (Civil) 506, Punjab Wakf Board, Ambala Cantt. Vs. Shri Neeko. Learned counsel for the contesting respondent No.1 argued that no doubt, Jai Lal was the owner in possession of Khasra No.53//3/1 (2-19) but as per registered sale deed (Ex.P-6) dated 17.3.1992, 7 marlas land, i.e., the property in dispute marked ABCD shown in the site plan was purchased. On the basis of registered sale deed (Ex.P-6), mutation was sanctioned in favour of the contesting respondent. Out of the remaining portion of Khasra No. 53//3/1 (2-19), 81 sq. yards was sold by Jai Lal to Ramesh Kumar as per registered sale deed (Ex.P-3) dated 17.3.1996 and the same property was sold by Ramesh Kumar to Siri Chand as per registered sale deed (Ex.P-2) dated 1.3.1996. Out of 81 sq. yards, only 13.85 sq. yards was purchased by Sat Narain, appellant, as per registered sale deed (Ex.P-1) dated 11.6.2001. With the purchase of share as per registered sale deed (Ex.P-1), Sat Narain, appellant, has become co-sharer. So, remedy with the appellant is to move an application for partition of joint khata. Application for appointment of Local Commissioner was moved but the same was dismissed as withdrawn vide order dated 18.9.2007. Local Commissioner is not to be appointed to locate the property of the appellants. As per registered sale deed (Ex.P-6), appellant is not in actual possession of the disputed portion marked ABCD shown in the site plan. Ex.P-4 is the copy of registered sale deed showing this fact that Banwari Lal son of Sheo Lal was the owner in possession of 2 kanals 19 marlas of land comprised in Rect. No.53 Killa No.3/1 situated in the revenue estate of Village Sunderheri and the same was sold to Jai Lal on 18.10.1985 with the boundaries as under:- RSA No. 1439 of 2010 (O&M) 5 East 38’6” : Fields of Ram Mehar West 17’6” : Rasta North 236’6”: Rasta leading to Kosli South 275’4” : Fields of Samera. Undisputedly, Jai Lal was the owner in possession of Khasra No. 53//3/1 (2-19) situated in the revenue estate of Village Sunderheri and this fact is clear from the copy of jamabandi (Ex.P-16) for the year 1991-92. As per Ex.P-5, i.e., copy of registered sale deed dated 13.3.1992, Jai Lal sold 14/16 share to Dharampal and others with the following boundaries:- East 71’6” : Land of Jai Lal vendor West 71’6” : Land of Jai Lal vendor North 19’0”: Road South 19’0” : Land of Pardeep Out of the land measuring 2 kanals 19 marlas, Jai Lal sold 7 marlas with specific boundaries as per registered sale deed (Ex.P-6) dated 17.3.1992 to Pardeep Singh. Jai Lal was in actual possession of the land measuring 2 kanals 19 marlas. So, he had the power to deliver actual possession of the plot measuring 7 marlas marked ABCD shown in the site plan, with the following boundaries:- East 71’6” : Land of Dharampal etc. purchased vide Ex.P5. West 71’6” : Road leading from Sasroli to Bahu North 25’6”: Road leading from Sasroli to Jhanswa South 25’6” : Land of Pardeep (Vendee). RSA No. 1439 of 2010 (O&M) 6 After the execution of registered sale deeds (Ex.5 and Ex.P-6), 81 sq. yards was sold by Jai Lal to Ramesh Kumar as per registered sale deed (Ex.P-3) dated 17.3.1996 with the following boundaries:- East 20’0” : Plot of Jai Lal West 38’6” : Rasta North 20’0”: Rasta South 44’ : Plot of Pardeep But the question is which portion with specific boundaries measuring 13.85 sq. yards out of 81 sq. yards was purchased by Sat Narain, appellant. Appellants are to explain that earlier Siri Chand or after his death, his LRs were in actual possession of the land measuring 81 sq. yards and out of that plot, particular portion measuring 13.85 sq. yards was sold and possession was delivered to Sat Narain, appellant. No one came from the side of the vendors, i.e., LRs of Siri Chand to state that they were in actual possession of particular plot measuring 81 sq. yards and out of that plot, possession of particular plot measuring 13.85 sq. yards was delivered to Sat Narain, appellant. Registered sale deed in favour of Pardeep Singh is dated 17.3.1992. At that time, vendor was in actual possession of Khasra No.53//3/1 (2-19). When the vendor was in actual possession of disputed property, then he had the power to deliver actual possession of the plot measuring 7 marlas sold vide registered sale deed (Ex.P-6) dated 17.3.1993 to the vendee. When Sat Narain, appellant, is not clear as to which particular plot with specific boundaries measuring 13.85 sq. yards was purchased and whether possession was delivered by the vendor, then with the execution of registered sale deed (Ex.P-1) dated 11.6.2001 in favour of Sat Narain, RSA No. 1439 of 2010 (O&M) 7 appellant, the appellants have become co-sharers in Khasra No.53//3/1 (2- 19). So, remedy with the appellants is to file suit for partition before the competent authority. As per Order XXVI Rule 9 CPC, Court has the power to appoint Local Commissioner to make local investigation but Local Commissioner is not to be appointed to collect evidence for the parties and report where is the property purchased by Sat Narain, appellant, as per registered sale deed (Ex.P-1) dated 11.6.2001. Best course with the appellants is to approach the competent authority and move an application for demarcation of the property. But no explanation as to why the appellants are not approaching the competent authority for partition of Khasra No.53//3/1 (2-19). In Mukunda Dhal alias Mukundagarag Dhal and others’s case (supra), the Court observed that when there is a dispute relating to identity of the suit land, then the same has to be established by deputing a Survey knowing Commissioner to locate the land in dispute and find out its plot number. But this authority is not helpful to the appellants because in that case, dispute was with regard to the building housing the deity, i.e., whether the building is in Plot No.879/4080 or Plot No.879. In the present case, no case of the appellants that out of plot measuring 7 marlas sold to the contesting respondent as per registered sale deed (Ex.P-6) dated 17.3.1992, plot measuring 13.85 sq. yards was purchased as per registered sale deed (Ex.P-1) dated 11.6.2001. In Punjab Wakf Board’s case (supra), it was observed by the Court that the Court can appoint Local Commissioner suo motu without any application from party if Court is of the view that local investigation is RSA No. 1439 of 2010 (O&M) 8 requisite and proper but this authority is not helpful to the appellants because allegation of Punjab Wakf Board was that the plot shown by the letters ABCD in the site plan comprised in Khasra Nos. 3421, 3422 and 3423 situated in the revenue estate of Panipat was dedicated for being used as a graveyard and the Opposite Party took possession of the above said plot. Allegation of the second party was that he was in adverse possession of the plot and the plot is not the part of Khasra Nos.3421, 3422 and 3423. In the present case, boundaries of the plot measuring 13.85 sq. yards are not tallying with the boundaries of plot measuring 7 marlas purchased vide registered sale deed (Ex.P-6) dated 17.3.1992. With the purchase of plot measuring 13.85 sq. yards out of Khasra No.53//3/1 (2-19), appellants have become co-sharer. So, remedy with the appellants is to file suit for partition. No doubt, the appellants moved an application for appointment of Local Commissioner before the trial Court but the same was dismissed as withdrawn as per statement of learned counsel for the appellants and this fact is clear from the interim order dated 18.9.2007 by the lower Court. So, the appellants cannot argue that application was dismissed without any reason. Along with grounds of appeal, CM No. 8239-C of 2010 was filed by the appellants for appointment of a Revenue Officer as Local Commissioner to demarcate the land in dispute but as discussed earlier, with the purchase of plot measuring 13.85 sq. yards as per registered sale deed (Ex.P-1) dated 11.6.2001, appellants have become co-sharers in Khasra No.53//3/1 (2-19). So, remedy with the appellants is to file suit for partition of Khasra No.53//3/1 (2-19), which is not under cultivation. Competent court is to see as to which portion is to be allotted to Sat Narain, appellant, RSA No. 1439 of 2010 (O&M) 9 as per registered sale deed (Ex.P-1) dated 11.6.2001. When application for appointment of Local Commissioner was got dismissed as withdrawn by the appellants moved before the trial Court, then I am of the opinion that at this stage, no ground to appoint Local Commissioner to report where is the portion measuring 13.85 sq. yards purchased as per registered sale deed (Ex.P-1) dated 11.6.2001. Trial Court as well as first Appellate Court rightly observed that the contesting respondent is the owner in possession of plot purchased as per registered sale deed (Ex.P6). In case, suit for partition of Khasra No.53//3/1 (2-19) by any of the co-sharers is filed, then the competent authority is to see as to which portion is to be allotted to the appellants and whether the portion in possession of the contesting respondent marked ABCD as shown in the site plan is to be allotted to the contesting respondent or not. As discussed earlier, sale deed in favour of the contesting respondent was dated 17.3.1992 vide which 7 marlas land was sold. On the basis of sale deed, mutation was sanctioned and out of the remaining area, Jai Lal sold 81 sq. yards to Ramesh Kumar as per registered sale deed (Ex.P3) dated 17.2.1994. Out of 81 sq. yards, only 13.85 sq. yards was purchased by Sat Narain, appellant, as per registered sale deed (Ex.P1) dated 11.6.2001. As per earlier sale deeds, mutations were sanctioned in favour of vendees. On the basis of sale deed in favour of the appellants, possession of specific portion was not delivered. So, appellants cannot be declared owners of portion marked ABCD. Appellants have become co- sharers in Khasra No.53//3/1(2-19). So, remedy with the appellants is to file suit for partition. RSA No. 1439 of 2010 (O&M) 10 For the reasons recorded above, regular second appeal without merit is dismissed. 4.11.2011 ( JORA SINGH ) pk JUDGE