RSA No.1868 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1868 of 1984 (O&M) Cross Objections No.33-C of 1984 Date of Decision: 20.01.2010 Bikkar Singh (Dead) through LRs and Ors. ..Appellants Vs. Sukhdev Singh ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.M.S.Rakkar, Sr. Advocate, with Mr.P.S.Bath, Advocate, for the appellants. Mr.G.S.Punia, Advocate, for the respondent/Cross objector. --- Vinod K.Sharma,J. (Oral) This regular second appeal by plaintiff/appellants is directed against the judgment and decree dated 12.4.1984 passed by the learned lower appellate court, vide which the decree passed by the learned trial court stands modified. The plaintiff/appellants filed a suit for possession of land RSA No.1868 of 1984 2 measuring 4 kanals 3 marlas out of Khewat No.11/19 Khasra No.556/424 (10-4), southern part of this khasra bounded as under:- East: G.T.Road, West: Defendants North: Plaintiffs. South: Rasta to village Quatabewal situated in village Quatabewal, Police Station Phillaur, as per jamabandi for the year 1974-75 and shown red in the map attached with the plaint. The plaintiffs claimed possession being owners of Khasra No.556/424 (10-4) as per jamabandi for the year 1974-75. The defendant/respondent was the neighbour of the plaintiffs and owner of khasra No.555/424, adjacent to the land of the plaintiffs, situated on the western side of the plaintiffs' land. The case of the plaintiffs was that forcible possession of part of this khasra was taken by the defendant, about 6 months back though the defendant has no right. The suit was contested wherein a defence was taken that khasra No.556/424 (10-4) was under the ownership of the defendant. The pleadings in this regard read as under:- “ That Para No.1 of the plaint is incorrect, hence denied. It is further submitted in this context that khasra number 556/424 is owned by defendants. The true facts are that the present defendant had no path leading to khasra number 556/424 so he applied to the consolidation authorities for the allotment of the path. The case was heard in the presence of RSA No.1868 of 1984 3 present plaintiff and consequently path measuring 3 Karams x 42 Karams (total measuring 14 marlas was allotted to the present defendants which has been shown red in the site plain attached. Therefore the plaintiffs are barred by their act and conduct from filing the present suit and this court has no jurisdiction to try the matter in suit.” On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff is owner of khasra No.556/424? OPP 2. Whether civil court has no jurisdiction to try this suit? OPD 3. Whether the plaintiffs are barred by their act and conduct? OPD 4. Relief. On appreciation of evidence, learned courts below have recorded a concurrent finding of fact that the plaintiffs were owners of Khasra No.556/424. On issue No.2 no evidence was led by the defendant, therefore, this issue was decided against the defendant. Issue No.3 was also decided against the defendant. Consequently the suit filed by the plaintiff/appellants was decreed. Defendant preferred an appeal. Learned lower appellate court affirmed the findings recorded by the learned trial court holding the plaintiffs to be owner of Khasra No.556/424. RSA No.1868 of 1984 4 However, by placing reliance on Ex.D.2 i.e. the order passed by the Settlement Officer, under the Consolidation Act, modified the decree, and decreed the suit of the plaintiffs for possession except for 14 marlas of land which was said to be path as per Ex.D.2. Learned counsel for the appellants contends, that this appeal raises following substantial question of law for consideration by this court:- 1. Whether the learned lower appellate court could make out a new case by declaring the land measuring 14 marlas as path, in the absence of pleading or issue in this regard? In support of the substantial question of law learned senior counsel for the appellants, vehemently contended that the suit filed by the plaintiff/appellants was for possession, on the basis of ownership of Khasra No.556/424. The plaintiff/appellants were recorded owners in possession of said khasra number measuring 10 Kanals 4 Marlas. The appellants had been dispossessed land measuring 4 kanals 3 marlas of land, out of this khasra number. In the written statement stand taken by the defendant was, that it was the defendant who was owner of Khasra No.556/424 out of which path was provided by the consolidation authorities. The plea taken by defendant was that of ownership to dispute the relief of possession, to the plaintiffs. The contention of the learned counsel for the appellants, therefore, was that once both the learned courts below on appreciation of RSA No.1868 of 1984 5 evidence recorded the plaintiff/appellants to be owners of khasra No.556/424, there was no justification to deny the possession of 14 marlas of land, especially when no path was shown in the revenue record. The contention of the learned counsel for the appellants, therefore, was that the impugned part of the judgment and decree passed by the learned lower appellate court being beyond pleadings is perverse and deserves to be set aside, and that of the learned trial court restored. Mr. G.S.Punia, learned counsel for the respondent while supporting the judgment and decree also pressed cross objections. The contention of the learned counsel for the respondent was that the judgment and decree passed by the learned courts below is the outcome of misreading of evidence and therefore, perverse. Learned counsel for the respondent referred to the revenue record to contend that Mehar Singh was the original owner of the property who had sold it to Ajit Singh and Swarn Singh who were the vendors of the defendant/respondent. The sale deed was duly proved on record, and therefore, the contention of the learned counsel for the respondent was that it was the defendant/ respondent who had purchased khasra No.555/424. Learned counsel for the respondent also referred to Ex.D.2 i.e. the order passed by the Settlement Officer (Consolidation) vide which a path was provided by the consent of the parties by taking out certain area from the plaintiff and giving it to defendant/respondent and simultaneously some area was deducted from the land belonging to the defendant/respondent and given to the plaintiff. A path measuring 14 marlas RSA No.1868 of 1984 6 was, therefore, carved out. No fault, therefore, could be found with the judgment and decree passed by the learned lower appellate court. It was also the contention of the learned counsel for the defendant/respondent that the reading of the revenue record showed that the area belonging to the plaintiff/appellant was on the southern side and therefore, the plaintiff could not claim possession on the northern side. Prayer made, therefore, was that the judgment and decree passed by the learned courts below deserve to be set aside and the suit filed by the plaintiff/appellant deserved to be dismissed in toto. On consideration, I find force in the contentions raised by the learned counsel for the appellants. The case of the plaintiff/appellants was that the plaintiffs were were dispossessed illegally by the defendant/respondent. In the written statement filed, a specific plea was taken that the plaintiffs were not owners of the property in dispute which was said to have been purchased by the defendant-respondent. Sale deed exhibited on record showed that the defendant/respondent had not purchased the land belonging to the plaintiffs and therefore, it could not be said that the defendant/respondent had title to the property. The learned trial court, therefore, on appreciation of pleading and evidence rightly came to the conclusion that the suit filed by the plaintiffs deserved to be decreed. Even though order Ex.D.2 was proved to have been passed by the Settlement Officer but it was not open to the learned lower appellate court to make out a new case as it was not even the pleaded case of the RSA No.1868 of 1984 7 defendant/respondent that there existed a path measuring 14 marlas. Rather the stand of the defendant/respondent was that he was owner of the property in dispute and the suit was liable to be dismissed. The finding of the learned lower appellate court ordering that the plaintiffs were not entitled to 14 marlas of land out of his ownership was, therefore, beyond pleadings of the case set up by the parties. It is also necessary to notice here that no issue regarding path was framed nor the parties led evidence in support of this stand. Rather the respective stand of the parties was that they were owners of the property in dispute. The learned lower appellate court, therefore, was not justified to modify the judgment and decree passed by the learned trial court by taking into consideration the evidence which was beyond pleadings and was not as per the case set up by the parties. For the reasons stated above, the substantial question of law is, answered in favour of the appellants. Resultantly, this appeal is allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of trial court is restored but with no order as to costs. Cross objections filed by the defendant/respondent are ordered to be dismissed. (Vinod K.Sharma) 20.01.2010 Judge rp