R.S.A. No.3178 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3178 of 1999 Date of Decision:31.10.2008 Jangli Ram and others .....Appellants Vs. Shadi Lal and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Adarsh Jain, Advocate for the appellants. Mr. Raj Mohan Singh, Advocate and Mr. S.K. Rana, Advocate for the respondents. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 1.5.1999 passed by the Court of learned District Judge, Faridabad whereby the judgment/ decree dated 26.2.1998 rendered by the Court of Civil Judge (Junior Division) Palwal decreeing the suit of the plaintiffs has been set aside and suit of the plaintiffs has been dismissed. The facts which form the backdrop of the suit are that Mohar Singh, Likhi and Ramji Lal were the three sons of Net Ram. Likhi Ram has died leaving behind Jangli Ram, Duli Ram, Gordan- sons, Smt. Ramo and Smt. Shamo- daughters and Kokalia as widow. Mohar Singh has also passed away leaving behind Kishori, Pyare and Budha as his sons. During pendency of the appeal in the Court of learned District Judge, Faridabad, Kishori also breathed his last. His legal representatives, namely, Birma Devi widow, Mohan Devi, Sunita and Anita daughters, Mohan Dutt and Mukesh (minor son) were brought on record. Similarly Ramji Lal, appellant before the said Court also died. His legal representatives Shadi Lal, Deepa, R.S.A. No.3178 of 1999 -2- Tej Pal and Jai Ram sons were brought on record. Likhi, Mohar Singh and Ramji Lal were joint owners of agricultural land situated in Village Hathin in which each one had got one third share. During consolidation proceedings, Likhi Ram and Mohar Singh applied to reserve one plot for each of them measuring one kanal for the purpose of extention of Abadi. Accordingly, they were allotted plots after deduction of equal area from their holdings and their names were mentioned in the list of persons allowed for allotment of plots in consolidation scheme at Sr. Nos.150 and 151. Vide resolution dated 13.7.1960/ 15.8.1960 at Sr. No.29/343 two plots bearing No.548 and 549 of one kanal each were allotted to Likhi Ram and Mohar Singh, but due to some clerical mistake in the register of Karwaie Istemal, the name of the defendant Ramji Lal was also included although he never applied for reservation of the plot. During consolidation proceedings, Mohar Singh was put in possession of plot No.548 while Likhi Ram was inducted in possession of plot No.549. Since then, they had constructed chhapars (thatched roofs) thereupon. Ramji Lal filed a petition for partition of the joint holdings and also illegally included plots No.548 and 549 and got an order of partition qua these plots. Under the garb of partition, he was bent upon to raise construction upon a part of plot No.549. On these allegations, the suit was filed for declaration to the effect that respondents No.1 to 6 were the owners of plot No.548 and respondents No.7 to 9 were the owners of plot No.549 and for permanent injunction restraining Ramji Lal from interfering in their possession or dismantle their construction. In his written statement, Ramji Lal inter-alia pleaded that the suit was barred by limitation as well as the principle of res-judicata under Section 11 of the Code of Civil Procedure. As alleged, he along with Mohar Singh and Likhi R.S.A. No.3178 of 1999 -3- Ram had applied for allotment of plots and an equal area from his holding was also deducted. So, his interest in the suit plots subsisted along with them and as such, he had rightly sought partition of these plots, which were allotted to all of them in equal shares and that his name also figured in the Karwaie Istemal. That the respondents had knowledge of his share at the time of consolidation of holdings, but they did not challenge the same till he applied for partition in the year 1982 and that being so, they were debarred from challenging the same by their act and conduct. That an error or mistake in the preparation of consolidation record could not be corrected by the Civil Court as provided under Section 42 of the Consolidation Act and thus, the Civil Court has no jurisdiction to try the suit. The following issues were framed:- 1. Whether the plaintiffs are the owners in possession of the suit property as alleged? OPP 2. Whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD 6. Whether the suit is barred by the principle of resjudicata? OPD 7. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit vide her R.S.A. No.3178 of 1999 -4- judgment/ decree dated 26.2.1998. Feeling aggrieved therewith, the defendant Ramji Lal went up in appeal which as noted supra was accepted setting aside the judgment/ decree dated 26.2.1998. Being dissatisfied therewith, the plaintiffs have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. Mr. Adarsh Jain, Advocate appearing on behalf of the appellants maintained with a good deal of force that the learned Lower Appellate Court has failed to consider that there was no application of defendant Ramji Lal for reservation of any plot in Abadi area of the Village during consolidation of holdings. The name of Ramji Lal had wrongly been mentioned as co-owner of plot Nos.548 and 549 at the time of allotment. These plots, as a matter of fact, had actually been allotted only to the predecessors of the plaintiffs. The name of Ramji Lal has wrongly been carried out in the revenue record including jamabandies. The reservation of the plots in dispute had been made only with regard to the interest of Likhi Ram and Mohar Singh. The Consolidation Department was to deduct equal land from the individual holdings of these persons. The deduction of area had been made only from the share of these persons and that being so, only they were to be considered the owners and after their death their heirs. It is further argued that Deep Chand son of Ramji Lal as DW1 has admitted in categoric terms in his cross-examination that Ramji Lal had not moved any application for reservation of plot during consolidation proceedings and that the plots in dispute were allotted in favour of Likhi and Mohar Singh only. These admissions proprio vigore go a long way in proving that Ramji Lal- R.S.A. No.3178 of 1999 -5- defendant had never applied for reservation of the plot during consolidation proceedings. If it was so, by no stretch of imagination, he could have become a co-owner in the plots in dispute. Thus, the findings returned by the learned First Appellate Court being without any basis are liable to be set aside. Furthermore, the defendant Ramji Lal through his legal heirs has failed to prove on record that any deduction has been made from his land at the time when the plots in dispute were allotted or reserved. To tide over these submissions, Mr. Raj Mohan Singh, Advocate representing the respondents argued that the alleged admission in itself is not enough to sustain the plea of the appellants. He further canvassed at the bar that if any error had crept in the revenue record by way of inadvertence, the correction thereof could have been sought through the competent authorities. I have given a deep and thoughtful consideration to the rival contentions. There is no gainsaying the fact that Ramji Lal, Mohar Singh and Likhi were the three son of Net Ram and they were the joint owners of agricultural land situated in Village Hathin and each one of them was having one third share. Ex.P6, the copy of register Karwaie Istemal, which is a basic document tends to show that Mohar Singh, Likhi and Ramji Lal sons of Net Ram are owners in equal shares of plot No.548 and 549 measuring one kanal each besides other land. It has not been reflected in this document that Mohar Singh and Likhi are the exclusive owners of these plots. Furthermore, in Ex.P.7, the copy of the jamabandi for the year 1984- 85, Mohar Singh, Ramji Lal and legal heirs of Likhi have been depicted as owners of these plots. In view of the provisions of Section 144 of the Punjab Land Revenue Act, the presumption of correctness attaches to the R.S.A. No.3178 of 1999 -6- entries in the jamabandi unless the same is rebutted. Here, in this case, this presumption has gone unrebutted. In the course of arguments, the learned counsel for the appellants was asked to draw attention towards the jamabandi which was prepared soon after the completion of consolidation proceedings. He regretted his inability in this behalf. To my mind, the entries in that very jamabandi only would have shown the real position. The plaintiffs have not apportioned any reason worth mention for withholding the same. Assuming that the entries in Ex.P.6 as well as Ex.P.7 were erroneously recorded, in that, it was imperative upon the plaintiffs being aggrieved therewith to pose a challenge thereto before the revenue authorities. They were not expected to sleep blissfully over these entries operating adverse to their interest. In Ex.D6, the copy of jamabandi, Ramji Lal has been shown to be the owner in possession of the land measuring 7 kanal 9 marlas including 13 marlas of Khasra No.549/2 which is a gair mumkin. As follows from Ex.D.5, the copy of Report roznamcha, he was given possession of the land measuring 6 kanal 16 marlas apart from gair mumkin plot measuring 13 marlas comprised in the above-mentioned khasra number. The plaintiffs did not adduce any cogent, convincing and clear evidence to the effect that one kanal area was exclusively deducted from the holding of Likhi and an equal area from the area of Mohar Singh. As per the above referred copy of register, Karwaie Istemal, Ramji Lal, Likhi and Mohar Singh were the joint owners of the area comprised in Khsra Nos.548 and 549 and these plots were allotted after deducting an equal area from their land which was jointly owned by them. The record is quite barren to show that the area only belonging to Likhi and Mohar Singh out of the joint holding was deducted R.S.A. No.3178 of 1999 -7- for allotment of the plots in dispute. The documentary evidence rather goes to show that an equal area was deducted from the joint holding of Likhi, Ramji Lal and Mohar Singh. The learned First Appellate Court has rightly observed that “It hardly matters that Mohar Singh and Likhi had only given application to allot the plots, but since they were having joint holding, so it will be presumed that they had made application for allotment of plots on behalf of Ramji Lal also, so, they are owners to the extent of one third share each of plots No.548 and 549.” Of course, Deep Chand as DW1 had admitted that Ramji Lal had not applied for allotment or reservation of the plots and that only Likhi and Mohar Singh had applied, but this admission in the face of above discussed documentary evidence carries no weight. Deep Chand being the son of Ramji Lal may have not been well acquainted or conversant with the situation which did exist at the material time. In contest, between the documentary as well as oral evidence, normally, documents ought to be accepted as they seldom lie. To crown it all, Likhi, Mohar Singh and Ramji Lal were holding the land jointly and it is out of that land, the plots were reserved during consolidation proceedings. As already noticed, Likhi and Mohar Singh were not in exclusive possession of any parcel of the joint land. In view of the preceding discussion, the findings returned by the learned District Judge, Faridabad, warrant no interference and are affirmed on all the issues. Sequelly, this appeal being devoid of any merit is dismissed with no order as to costs. October 31, 2008 ( HARBANS LAL ) renu JUDGE R.S.A. No.3178 of 1999 -8-