Regular Second Appeal No.916 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.916 of 2008 Date of decision: 20.07.2009 Smt. Premwati d/o Smt. Chameli wd/o late Fakira s/o Cheti r/o village Ladholi, Tehsil Ballabgarh, Distt. Faridabad, at present r/o village Fazzupur Khadar, Tehsil Ballabgarh, District Faridabad. ..... Appellant. Versus 1. Mohinder Singh son of Chatarbhuj son of Sher Singh, 2. (i) Ballu, (ii) Vinod, (iii) Kamal (iv) Smt. Ramo, widow, LRs of Umed Singh, 3. Karey Singh son of Devi Sahai son of Siya Ram, 4. Indraj son of Har Lal son of Mewa Ram son of Ram Sahai, all residents of village Ladholi, Tehsil Ballabgarh, District Faridabad for themselves and on behalf of the Prop. of Patti Heera Singh of village Ladholi, Tehsil Ballabgarh, District Faridabad in representatives capacity as per list of Proprietors attached and on behalf of descendants of Balli as per pedigree table mentioned in Page Nos.22 to 26 of the plaint. 5. The State of Haryana through its District Collector, Faridabad and 6. General Public. ..... Respondents. 7. Mange Ram, 8. Kailash sons, 9. Smt. Kiran widow of late Girraj, 10. Hari, 11. Kishan sons of late Rambir, 12. Kartar son of Bhima, 13. Narotam, 14. Nawal, 15. Bhola sons of Tej Raj, 16. Devi Ram, 17. Hans Raj son of Amar Singh, 18. Hazari, 19. Rajbir, 20. Jeetan sons of Arjun, all residents of village Regular Second Appeal No.916 of 2008 -2- Ladholi, Tehsil Ballabgarh, District Faridabad, as fully mentioned at Page no.21 of the plaint. .. Proforma defendants/respondents 21. Manak Singh, 22. Smt. Kamla widow, 23 Satpal s/o Late Chatra, 24. Raj Kumar legal heir of Nihal Singh s/o Ganga Prasad, all residents of village Ladholi, Tehsil Ballabhgarh, District Faridabad. ... Plaintiffs/respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Ms. Pooja Chopra, Advocate for the appellant. Mr. Adarsh Jain, Advocate for the respondent nos.1,2 and 4. Mr. Suresh Kumar Chawla, Advocate, for respondent no.3. None for respondent no.5. Service of respondent nos.6 to 24 already dispensed with. Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.04.2007, rendered by the Court of Civil Judge (Junior Division), Faridabad, vide which it dismissed the suit of the plaintiff for declaration with a consequential relief of permanent injunction and Regular Second Appeal No.916 of 2008 -3- the judgment and decree dated 05.12.2007, rendered by the Court of Additional District Judge (I), Faridabad, vide which it dismissed the appeal. 2. Shorn off unnecessary details, the facts relevant, for the decision of this appeal, are that plaintiff no.1 (now appellant) claimed herself to be the exclusive owner of the land, in dispute, to the extent of ½ share, whereas plaintiff nos. 2 to 5 claimed themselves to be the owners to the extent of 1/8 share in equal shares. It was stated that the defendants are co- sharers/co-owners in Patti Heera Singh, but some strangers to the descendants of Balli became owners in the Patti, fully detailed in para no.1-B of the plaint, by dwelling right being tenant and occupiers. It was further stated that the above said land to the extent of 20 bighas i.e. 108 kanals was in possession of gair khandani of common ancestor Balli, at the time of first regular settlement, in the year 1880, and the remaining land had been acquired by the other persons, whose names are not included in the pedigree table. It was further stated plaintiffno.1 is the co-sharer to the extent of 7/40th share and the remaining Regular Second Appeal No.916 of 2008 -4- plaintiffs are co-sharers to the extent of 7/80th share of the total land measuring 490 kanals, situated in village Ladholi, described in para 1(c) of the plaint. It was further stated that the plaintiffs are the owners of the suit land, as they are descendants of Balli, since 1880. It was further stated that the defendants occupied their ancestral land more than their share, in the suit land. It was further stated that, in the year 1880, first regular settlement took place and in the sijra nasab and in the hakook malkan, it was mentioned that about nine generations prior to the settlement, the area of the village was lying barren, without possession, and the possession was then delivered to Balli, Dalel and Mansoor. They had established the village and the shamlat land measuring 164 bighas 17 biswas was in their possession. The land was partitioned between two thoks namely Thok Heera Singh and Thok Thakuriya and, similarly, a portion of the land was sold to the then Ruler Raja Nahar Singh. In the year 1857, that land was taken into possession by the Government. It was further stated that Patti Sarkar and Patti Heera Singh were owners in possession to Regular Second Appeal No.916 of 2008 -5- the extent of 3/10th share and 7/10th share respectively. It was further stated that the land had not been partitioned among the descendants of Balli. It was further stated that the share holders and rights holders were in possession of the suit land, by way of cultivation. It was further stated that the ancestors had developed the village and Thok Heera Singh was the owner in possession of the suit land. Premwati, who is the descendant of Balli, has got 1/4 share, whereas the other plaintiffs have got 1/8 share in the suit land alongwith the proforma defendants, who have also got 1/8 share in the land described i para 1 (A) of the plaint. It was further stated that the defendants in collusion with the Revenue Authorities and to deprive the plaintiffs of the land in dispute, got it partitioned from the Revenue Court without impleading them (plaintiffs) as a party to the same. Defendants, on the basis of wrong entries in the revenue record, alienated the land, in dispute, more than their share. The defendant tried to take forcible possession of the land, in dispute. It was further stated that the defendants were requested a number of times, not Regular Second Appeal No.916 of 2008 -6- to do so, but to no avail. On their final refusal to admit the claim of the plaintiffs, left with no alternative, a suit for declaration and permanent injunction was filed. 3. Defendant nos.1,2 and 4 put in appearance, and contested the suit, by way of filing their joint written statement, wherein, it was stated that the plaintiffs were neither owners nor in possession of the suit land, to the extent of the share, mentioned in the plaint. It was further stated that they had got no concern with the land, mentioned in para nos.1-A,1-B and 1-C of the plaint. It was further stated that the shares of the defendants mentioned in the latest revenue record, were correct. It was denied that any entry regarding wrong transfer had been recorded, in the revenue record. The remaining averments, were specifically denied being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether the suit land is the ancestral and the plaintiffs are collateral co-sharers qua the defendants ?OPP Regular Second Appeal No.916 of 2008 -7- 2- If issue no.1 is proved in favour of the plaintiff, then to all the extent of the plaintiff in his share ?OPP 3- Whether the suit is not maintainable in the present form ?OPD 4- Whether the plaintiff has no locus standi to file the present suit ?OPD 5- Whether the plaintiff has no cause of action to file the present suit ?OPD 6- Whether the suit is barred by limitation ? OPD 7- Whether the Civil Court has no jurisdiction to try and entertain the present suit ?OPD 8- Relief.” 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and on going through the evidence and record of the case, dismissed the suit. 6. Feeling aggrieved, against the judgment and decree dated 17.04.2007, rendered by the trial Court, the appellants filed an appeal before the Appellate Court, at Faridabad, which Regular Second Appeal No.916 of 2008 -8- vide its judgment and decree dated 05.12.2007 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellant. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellant, submitted that the findings recorded by the Courts below are based on complete mis-reading and non- consideration of material evidence. She further submitted that, thus, the Courts below, illegally dismissed the suit of the plaintiffs. She further submitted that, on account of illegal dismissal of the suit of the plaintiffs, mis-carriage of justice, has occasioned. 10. On the other hand, the Counsel for the respondents, submitted that the evidence was properly scrutinized by the Courts below. They further submitted that there was neither any mis- reading, nor any mis-appreciation nor non- consideration of the evidence and, as such, the evidence recorded by the Courts below, could not be Regular Second Appeal No.916 of 2008 -9- said to be, by any stretch of imagination, perverse. They further submitted that no evidence was produced by the plaintiffs, to connect the land, in dispute, with the land, which was allegedly held by their ancestors. They further submitted that the judgments and decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly Regular Second Appeal No.916 of 2008 -10- erroneous as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The plaintiffs claimed their right of ownership, in the property, on the ground that they were descendants of Balli, who according to them, had right in land measuring 164 bighas 17 biswas, in dispute, at the time of first settlement in the year 1880. No document vide which Balli allegedly acquired any right, in the land, in dispute, was produced. No other revenue record was also produced on the record, showing that Balli, at any point of time, was the owner in possession of the land, in dispute. The main reliance of the plaintiffs was on the pedigree tables Ex. P-2, Ex.P-3. However, on the basis of these pedigree tables, the plaintiffs could not be conferred any right of ownership in the property, in dispute. Even, on the basis of these documents, it could not be said that the land was illegally or wrongly Regular Second Appeal No.916 of 2008 -11- transferred, in the name of the defendants. No excerpt was got prepared, by the plaintiffs, to show that they had inherited the suit land from Balli. Only jamabandi for the year 1994-95 was produced. Prior to that jamabandi, no revenue record was produced. From the jamabandi for the year 1994-95, it could not be ascertained that the land was inherited by the plaintiffs from Balli or that the shares of the respondents had been wrongly recorded therein. No evidence was produced by the plaintiffs, who claimed themselves to be the descendants of Balli that he had not alienated any portion of the suit land. As such, the Courts below were also right in coming to the conclusion, that the plaintiffs miserably failed to link the property, allegedly allotted to Balli, in the year 1880, with the land, in dispute. Hence, the Courts below were also right in coming to the conclusion, that the pedigree tables were not sufficient to prove the ownership of the property in relation to the plaintiffs. The Courts below were also right in coming to the conclusion, that in the absence of excerpt or any other record relating to the year 1880 and thereafter the ownership and possession Regular Second Appeal No.916 of 2008 -12- of the plaintiffs in respect of the land, in dispute, did not stand proved. Even the Courts below were right in holding that the suit was barred by time and that in the absence of seeking the relief of possession or joint possession, as the plaintiffs were not in possession of the land, the suit for mere declaration was not maintainable. The Courts below, thus, properly appreciated the evidence, which was produced, on the record, and came to the correct conclusion that the plaintiffs were not the owners in possession of the land, in dispute, and, as such, decree for declaration and permanent injunction, could not be granted to them. The concurrent findings, recorded by the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity and warrant no interference. The judgments and the decrees of the Courts below, being legal and valid are liable to be upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. Regular Second Appeal No.916 of 2008 -13- 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. In view of the above, finding no merit in the appeal, the same stands dismissed with costs. ( Sham Sunder ) July 20, 2009 Judge dinesh