RSA No.835 of 2002(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.835 of 2002(O&M) Date of decision: 20.3.2009 Harbans Singh and others ......Appellants Versus Pritam Singh ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. D.S.Pheruman, Advocate for the appellants. * * * 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 is owner in possession of the suit land was decreed against the defendants with costs. Before the Courts below, plaintiff-Pritam Singh had alleged that previously one Madha Singh son of Assa Singh was the owner of the land in dispute. Pritam Singh filed a suit for redemption against Madha Singh, which was compromised on 26.2.1964 and a compromise decree was passed accordingly by the Court of Sub Judge, 1st Class, Amritsar. In terms of the said compromise, the plaintiff paid the decretal amount to Madha Singh and became owner of the suit property. Madha Singh delivered its possession to the plaintiff and mutation No.541 to that effect was also sanctioned in favour of the plaintiff. Thereafter, the plaintiff mortgaged the suit land in favour of the Punjab National Bank against loan for the purchase of a tractor. He alleged that the defendants have got no right, title or interest in the suit land but taking undue advantage of some wrong entries in their names in the khasra Girdawari, they were RSA No.835 of 2002(O&M) 2 threatening to interfere into his possession over the suit land. Hence, the suit for declaration to the effect that he was owner in possession of the suit land. The defendant-appellants contested the suit and filed a written statement wherein they admitted the compromise decree dated 26.2.1964 in favour of the plaintiff-respondent but their contention before the trial Court was that the plaintiff agreed to sell the suit land in favour of father of defendants No.1 to 5 and put the prospective vendees into possession of the suit land. It was further contended that the father of the defendants always remained ready and willing to perform his part of the contract. Thus, claiming their possession over the suit land in part performance of the agreement to sell dated 22.5.1964, they claimed protection under Section 53(a) of the Transfer of Property Act. The defendants further contended that the plaintiff had got changed the entries in the Khasra Girdawari in his name in Rabi, 1984 without any notice to them and, therefore, the same are null and void and the suit of the plaintiff was liable to be dismissed. On the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiff is in possession of the suit land as owner?OPP 2. Whether any agreement to sell dated 22.5.1964 was entered into by the plaintiff. If so its effect?OPD 3. Whether the suit is barred by time? OPD 4. Whether the defendants are in adverse, open, hostile possession of the suit land, if so its effect? OPD 5. Whether the suit is not maintainable?OPD 6. Whether the suit is bad for mis-joinder of parties? RSA No.835 of 2002(O&M) 3 OPD 7. Relief.” Both the parties led evidence in support of their respective contentions. After hearing learned counsel for the parties and going through the evidence on record, the trial Court held that the plaintiff was in possession of the suit land as owner and the defendants had failed to prove their possession over the suit land. However, issue no.2 was decided against the plaintiff. Aggrieved by the judgment and decree of the trial Court, the appellants filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 23.10.2001 passed by the Additional District Judge, Amritsar. Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have wrongly held that the appellants have failed to prove their possession over the suit land and in fact, there is ample evidence in the shape of Khasra Girdawari to establish the possession of the appellants over the suit land and thus, the appellants are entitled to protect their possession and they cannot be dispossessed except in due course of law and thus, a substantial question of law arises in this appeal which is as under: “Whether the judgment and decree of the Lower Appellate Court is perverse and is the result of misreading and misinterpretation of the evidence on record?” I have heard learned counsel for the appellants. As per their pleadings, the appellants claimed themselves to RSA No.835 of 2002(O&M) 4 be in possession of the suit land only on the basis of the agreement to sell dated 22.5.1964 (Ex.D1) and sought protection of their possession over the suit land under Section 53(a) of the Transfer of Property Act but the evidence led by the parties before the trial Court proves that the appellants were never in possession of the suit land in part performance of the agreement to sell dated 22.5.1964. There is no mention in the agreement to sell dated 22.5.1964 regarding the delivery of the possession of the suit land to the prospective vendees, namely, the appellants or their predecessor-in- interest. Thus, there is no evidence on record to prove the pleaded case of the appellants. However, during the appeal before the Lower Appellate Court the appellants shifted their stand that they were delivered the possession of the suit land and they were in possession on the basis of Khasra Girdawari as proved on record. However, the aforesaid contention of the appellants was rightly rejected by the Lower Appellate Court being beyond their pleadings. Moreover, it is the admitted case between the parties that Madha Singh was the owner of the suit land and delivered its possession to the plaintiff-respondent after receiving the decretal amount and thus, Pritam Singh plaintiff came into possession as its owner and thereafter, there is no evidence on record to show as to how the appellants came into possession of the suit land in question. Both the Courts below on appreciation of facts have recorded a finding of fact that the appellants are not in possession of the suit land. Thus, I find no merit in this appeal. No other point was raised before me in this appeal. No substantial question of law arises. Dismissed. March 20, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.835 of 2002(O&M) 5