R.S.A. No. 1185 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1185 of 2009 (O&M) Date of decision: 24.04.2009 Jai Bhagwan and others ....appellants versus Surender Singh and another ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sushil Jain, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 3538-C of 2009 This is an application under Section 5 of the Limiation Act for condoning the delay of one day in filing the appeal. For the reasons stated in the application, C.M. is allowed and the delay of one day in filing the appeal is ordered to be condoned. R.S.A. No. 1185 of 2009 This regular second appeal is directed against the judgment and decree dated 19.11.2008 passed by the learned lower appellate Court decreeing the suit filed by the plaintiff/respondent No. 1. R.S.A. No. 1185 of 2009 (O&M) -2- The plaintiff/respondent No. 1 brought a suit for specific performance of agreement to sell dated 22.11.2000 in respect of non- arable piece of land measuring 6 biswas. The case pleaded was that late Sheo Dutt, father of the appellants and his brother Khema defendant No. 3 were co-owners of gair mumkin bara comprised in khewat No. 125, khatauni No. 221, khasra No. 883, measuring 0 bigha 6 biswas situated within the revenue estate of village Jatola, tehsil and district Sonepat. The defendant/appellants entered into an agreement to sell bara to the plaintiff/respondent No. 1 for sale consideration of Rs.30,000/-. The entire sale consideration was paid to the vendors against a receipt at the time of execution of the agreement, and the plaintiff/respondent claimed to be in possession of the property even prior to execution of agreement to sell. It was the case of the plaintiff that after the death of Sheo Dutt, appellants failed to execute the sale deed, consequently, the suit was filed. In defence plea was taken, that no agreement was executed. It was claimed that they were co-owners in possession of the disputed gair mumkin bara, measuring 6 biswas. The sale consideration was also denied. The learned trial Court did not answer the issues framed, but dismissed the suit by holding, that as per the documentary evidence on record, the property belongs to gram panchayat and, therefore, the decree for specific performance could not be passed. However, this finding of the learned trial Court has been reversed by the learned lower appellate Court by holding, that Khema had entered into an agreement on receipt of sale consideration. The R.S.A. No. 1185 of 2009 (O&M) -3- learned lower appellate Court took note of the statement of defendant/appellant Khema dated 10.9.2001 recorded by the learned trial Court, which reads as under: "It is stated that my brother Sheo Dutt had sold Plot No. 883 of 6 Marlas area to Surender son of Abhey Ram, a resident of Jatola, on 22.11.2000. Plaintiff Surender has been in continuous possession of the plot since long. The consideration amount of Rs.30,000/- was duly received by us and it was decided that the vendee could get the sale deed executed as per his convenience. My brother Sheo Dutt expired a few months ago. I am ready and willing to execute the sale deed of my share in the plot." The learned lower appellate Court was pleased to hold, that the finding of the learned trial Court that the property belongs to Gram Panchayat, could not be sustained, as it was not the case of either of the parties that the property belongs to gram panchayat nor any such plea was set up by gram panchayat, even though it was impleaded as one of the parties to the suit. The finding, recorded to reverse the judgment and decree passed by the learned trial Court, reads as under: - "It is not the case of the parties that the Gram Panchayat has been owner of the property at any point of time. It is the specific case of the appellant/plaintiff that late Sheo Dutt and defendant Khema were the owners of the plot in dispute on 22.11.2000 and they had agreed to sell it to him. The respondents/defendants have also very specifically pleaded that late Sheo Dutt and defendant Khema were indeed the owners of the property on November 22, 2000 but they had not agreed to sell the property to the plaintiff. Where is the issue of ownership in this case? The learned trial judge raked up a new controversy by creating a new case which is totally alien R.S.A. No. 1185 of 2009 (O&M) -4- to the pleadings of the parties and is in fact non- comprehensible. The revenue records are not documents of title. They merely raise a presumption which is rebuttable as has held by the apex court in Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalyund and others, 2008(1) Civil Court Cases 310 (SC). Our own Hon'ble High Court has held in Tarsem Singh Vs. Amru, 1994(1) Recent Revenue Reports 497 (P&H) that where the vendor had pleaded that the land was allotted to him by the Government but he was not competent to sell the same for ten years, it was for him to establish that there was any embargo on his right to sell the land. He thus failed to establish that there was any impediment in his way to transfer the land by way of specific performance of the agreement. There is evidence available on record that the property was allotted to Sheo Dutt and Khema during the consolidation of holdings and that they were recorded in possession of the property in the record of rights as early as in the year 1952-53 Ex. P4 is the Fard Jamabandi for the year 1952-53 to that effect. It was in fact held by the Hon'ble Andhra Pradesh High Court in Smt. C. Susheela and others Vs. Smt. Chanda Patwari, 1991(1) Latest Judicial Reports 531 that where the agreement to sell and payment of advance money is admitted, no other cause exists to withhold the relief claimed. That learned trial judge was swayed by Fard jamabandi for the year 2000-2001 (Ex. D1) in which Gram Panchayat Deh is recorded owner of the property and Chhotu and Sheo Dutt are recorded tenants in possession of the disputed 6 biswas of land but it is very specifically recorded in column No. 9 of the document that there is no condition of payment of rent and the possession is on account of allotment. Ex. P4 is the Fard jamabadi for R.S.A. No. 1185 of 2009 (O&M) -5- the year 1952-53 carrying the identical entries. Therefore, it may be very safely concluded that Chhotu, father of late Sheo Dutt and defendant Khema, was allotted with non-arable piece of land within the inhabited area of village Jatola approximately fifty years prior to the execution of the agreement to sell Ex. P1 by his sons and that the family had been using the property as owners to the knowledge of the entire village community. There was no dispute regarding the properietary rights of the disputed piece of land in this case although the issues were created by the learned trial judge out of sheer ignorance." Mr. Sushil Jain, learned counsel, appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law: - "1. Whether the learned lower appellate Court could decree the suit for specific performance merely on the basis of admission when the property was under the ownership of gram panchayat? 2. Whether the judgment and decree passed by the learned lower appellate Court is outcome of mis- reading of evidence on record, thus, perverse?" In support of the substantial questions of law, the learned counsel for the appellants contends that the learned trial Court had rightly held, on the basis of revenue record, that the property belongs to gram panchayat and, therefore, specific performance thereof could not be ordered. It is also the contention of the learned counsel for the appellants, that in view of the finding recorded by the learned trial Court, it was not open to the learned lower appellate Court to have decreed the R.S.A. No. 1185 of 2009 (O&M) -6- suit for specific performance. The contention of the learned counsel for the appellants is, that the judgment is outcome of mis-reading of evidence on record and, therefore, perverse. The prayer made by the learned counsel for the appellants is, that the substantial questions of law deserve to be answered in favour of the appellants, and the judgment and decree passed by the learned lower appellate Court be set aside and that of learned trial Court be restored. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellants. It is not open to the defendant/appellants to raise a plea that they were not owners in possession of the property in dispute, especially when there was clear admission on their part that bara in dispute was under the ownership of the defendant/appellants, as they claimed themselves to be co-owners of the property in dispute, as per the statement recorded before the learned trial Court. Mere entry in jamabadi does not give title. Though presumption is attached to the revenue entries, which is rebuttable. In the present case, though the gram panchayat was impleaded as party, however, they chose not to contest the suit, and the case by both the parties was that the property was under the ownership of defendant/appellants, which was agreed to be sold. The agreement as well as passing of sale consideration stood proved, as also the willingness of the plaintiff/respondent to execute the sale deed. The finding recorded by the learned trial Court, therefore, was contrary to the pleadings and the case set up by the parties, therefore, rightly reversed by the learned lower appellate Court. It could not be R.S.A. No. 1185 of 2009 (O&M) -7- said that no decree could be passed and the judgment and decree is outcome of misrading of evidence on record. The substantial questions of law raised are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge April 24, 2009 R.S.