RSA No.3781 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.3781 of 2009 Date of decision: 22.7.2010 Ram Singh and others .....Appellants vs. Hoshiyar Singh ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Lokesh Sinhal, Advocate, for the appellants. Mr.P.R.Yadav, Advocate, for the respondent. Rakesh Kumar Garg,J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff for declaration that he was owner in possession of the suit land to the extent of 125/425th share was decreed, further restraining the appellants from interfering into his possession. As per the averments made in the plaint, the appellants and plaintiff-respondent purchased the suit land from Sita Ram and Mansa Ram sons of Jiwan Dass vide registered sale deed dated 19.12.1972. Appellants purchased 300/425th share and the plaintiff-respondent purchased to the extent of 125/425th share. After the purchase, the parties were in possession of the suit land as per their share and were cultivating the same. On the basis of the aforesaid sale deed mutation No. 121 was entered and sanctioned on 12.12.1973. However, while entering the mutation the revenue officials failed to enter the name of the plaintiff-respondent as per his share. Thus, the mutation was illegal against facts and against the terms RSA No.3781 of 2009 2 of the sale deed, and the same was liable to be corrected. The plaintiff- respondent was in possession of his 125/425th share in the suit land and was cultivating the same. Appellant came to know of the mistake crept in the mutation on 22.3.2004 when he obtained copies of the revenue record regarding the suit land for the purpose of going for partition. The defendants were requested several times to get the revenue entries corrected but they refused to do so, hence the present suit. The suit was contested by the appellants. Various preliminary objections were raised in the written statement. It was denied that plaintiff had ever entered into possession on any part of the suit land. His suit for declaration and permanent injunction in the absence of his possession on any part of the suit land was not maintainable. On merits, it was averred that plaintiff-respondent was not a party to the sale deed in question and the land in question was purchased by the appellants. The plaintiff-respondent was not a share holder in the suit land as claimed. He never entered into possession of the suit land and mutation No.121 was rightly sanctioned in favour of the appellants. The suit was claimed to be time barred, as the relief was sought after 32 years. Denying all other relevant averments, dismissal of the suit was prayed for. Replication to the written statement of the defendant was filed by the plaintiff controverting the averments made in the written statement and re-affirming those taken in the plaint. On the pleadings of the parties, the following issues were framed:- 1.Whether the plaintiff is owner in possession of the suit land as per sale deed No.1318 dated 19.10.1972 ?OPP RSA No.3781 of 2009 3 2.If issue No.1 is proved whether the plaintiff is entitled for injunction as prayed for ?OPP 3.Whether the suit of the plaintiff is not maintainable in the present form ?OPD 4.Whether the suit of the plaintiff is not within limitation ?OPP 5.Whther the court fee is deficient, if so to what effect ?OPD 6.Relief. Parties led their evidence. After hearing learned counel for the parties, the trial Court decreed the suit vide judgment and decree dated 24.10.2007. While decreeing the suit the trial Court held that the plaintiff- respondent was a co-owner in possession of the suit land and the appellant- defendants were liable to be restrained from interfering in his possession over the suit land. The revenue entries on the basis of mutation were held to carry no weight. The suit was found to be within limitation and held to be maintainable. In the result, the plaintiff-respondent was found entitled to get his name entered in the revenue record to the extent of 125/425th share as per the sale deed dated 19.10.1972. Aggrieved by the judgment and decree of the trial Court, the appellants filed an appeal before the first Appellate Court, which was also dismissed. While dismissing the appeal on re-appraisal of evidence, the lower Appellate Court recorded a finding of fact that the appellants never challenged the sale deed wherein the plaintiff-respondent is shown to have been sold 125/425th share in the suit land and mutation of the property was sanctioned in favour of the appellants on the basis of the aforesaid sale deed The lower Appellate Court also found that the plaintiff having purchased 125/425th share in the suit land along with appellants had become its co- RSA No.3781 of 2009 4 sharer and and he was deemed to be in possession of the suit land and the appellants cannot take benefit of the revenue entries made wrongly and thus, it cannot be said that plaintiff-respondent was seeking declaration without being in possession. The finding of the trial Court on the question of limitation was also upheld. Consequently, the appeal filed by the appellants was dismissed. Still not satisfied the appellants have filed the instant appeal before this Court. Learned counsel for the appellants has vehemently argued that the Courts below have failed to appreciate the fact that the present suit filed by the plaintiff-respondent is a simple suit for declaration without seeking possession of the suit land, as it is established from the revenue record that the appellants are in possession of the suit land since 1973 and, therefore, the present suit filed by the plaintiff-respondent for declaration without the relief of possession was not maintainable in view of the judgment of the Supreme Court in Ram Saran and another v. Smt.Ganga Devi, AIR 1972 Supreme Court 2685. Learned counsel for the appellants further argued that the plaintiff-respondent never challenged the entries which were continuing in favour of the appellants since 12.12.1973 and thus, the suit which was filed in the year 2004 was clearly time barred and the starting point for limitation in this case will start from the date when the entries were made in the revenue record as held by this Court in Lehna Singh and others v. Ram Singh and others, 1981 PLJ 470. On the basis of the aforesaid arguments, learned counsel for the appellants submitted that the following substantial questions of law arise in this case:- RSA No.3781 of 2009 5 (i)Whether the suit filed by the plaintiff is within limitation ? (ii) Whether the simpliciter suit for declaration without seeking possession is maintainable ? (iii) Whether in the facts and circumstances of the present case, the judgment and decree passed by the learned Courts below are result of non reading of evidence ? (iv) Whether the findings recorded by the learned Courts below are perverse ? On the other hand, learned counsel for the respondent has supported the impugned judgment and decrees of the Courts below and has submitted that the plaintiff-respondent has been found to be in possession of the suit land being co-owner and, therefore, the suit was perfectly maintainable. Moreover, it is well settled that possession of a co-owner is deemed to be possession on behalf of all the co-owners. It was also submitted by the learned counsel for the respondents that the limitation in the suit will start running when the rights of the plaintiff-respondent were threatened to be invaded, and thus, the suit was within limitation. On the basis of the aforesaid arguments, it was submitted that no substantial question of law arises in this case and the same is liable to be dismissed. I have heard the learned counsel for the parties and perused the impugned judgment and decrees. It is not in dispute that vide sale deed dated 19.10.1972 parties to the suit had purchased the suit land in which the plaintiff-respondent was a co-sharer to the extent of 125/425th share. It is also not in dispute that the appellants as well as respondent are coming into possession of the suit property only on the basis of the aforesaid sale deed. Thus, even if the appellants are in exclusive possession of the suit property they cannot claim ouster of the plaintiff-respondent from the suit land as it is well settled that a co-owner is deemed in possession on behalf of other co- owners also. It may also be noticed that all the revenue entries showing RSA No.3781 of 2009 6 possession of the appellants in the revenue record are based on mutation No.121 sanctioned on 12.12.1973 in favour of the appellants, on the basis of incorrect facts, and presumption of correctness of these entries stands rebutted by the fact that the entries commenced on the basis of a mutation sanctioned wrongly in favour of the appellants, and therefore, the aforesaid revenue entries cannot be made the basis to establish that appellants alone were in possession of the suit land. Even otherwise it is well settled that a mutation does not create title. Thus, it cannot be said that the suit plaintiff- respondent was not maintainable. In the case of Ram Saran (supra), defendant was in possession of some of the suit properties and the plaintiff did not seek possession of those properties but merely claimed declaration of ownership and in those circumstances the suit was held to be not maintainable whereas in the present suit plaintiff has been held to be in possession of the suit properly being co-owner/co-sharer. Thus, the aforesaid judgment of the Hon'ble Supreme Court is not applicable in the present case. In Lehna Singh's case (supra), it was held that plaintiffs were not the owners of suit land and were not entitled to the declaration of ownership. It was also found that they were not in possession of the suit land as the same was found to be in possession of mortgagees and in these circumstances suit of the plaintiffs under section 45 of the Land Revenue Act, 1887, challenging the entries of ownership in jamabandis was held to be time barred.The judgment of this Court in Lehna Singh's case (supra) relied upon by the appellants is also not applicable to the facts and circumstances of the present case, as the respondent who is deemed to be in RSA No.3781 of 2009 7 possession being co-owner of the suit property was entitled to file the suit when his rights were threatened. For the aforesaid reasons, the aforesaid judgment relied upon by the appellants is also of no help to them. Thus, in this view of the matter, I find no merit in this appeal. The substantial questions of law as raised are answered against the appellants. Dismissed. ( Rakesh Kumar Garg) Judge July 22, 2010 rk