RSA No. 2052 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2052 of 1986 Date of decision: 23.3.2011 Khanda Singh Appellant versus Nirmolak Singh & another Respondents CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Rajat Panjeta,Advocate for the appellant Mr.Sudhir Mittal,Advocate for the respondents ...... JITENDRA CHAUHAN.J The present appeal has been preferred by Khanda Singh, appellant against the judgment and decree dated 5.5.1986 passed by learned Additional District Judge,Hisar (First Appellate Court), whereby the judgment and decree dated 13.5.1985 passed by the learned trial Court was affirmed. The facts in brief are that Nirmolak Singh etc. respondents have filed a suit for declaration and permanent injunction to the effect that they be declared owners in possession as co-sharers of disputed agricultural land measuring 13 Kanals 5 Marlas situated in village Bhirdana Tehsil Fatehabad, District Hisar comprising Khasra Nos. 480/1/1(2-13),2(8-0),3/1 (2-12) and defendants Khanda Singh, Smt. Parmeshwari, Smt. Prem Lata etc. be restrained to interfere in their possession. It was alleged that earlier the land in dispute was owned by Smt.Parmeshwari and Smt. Prem Lata and Khanda Singh was in cultivating possession of the said land as tenant-at- RSA No. 2052 of 1986 2 Will. Smt. Parmeshwari and Smt. Prem Lata had filed a suit u/s 14-A(ii) of the Punjab Security of Land Tenures Act,1953 in the Court of Assistant Collector II Grade,Fatehabad which was decided against Khanda Singh and he was dispossessed from the disputed land,as a result of which Smt. Parmeshwari and Smt. Prem Lata got physical possession of the disputed land on 4.2.1978. It was further averred that thereafter Smt. Parmeshwari and Smt.Prem Lata sold the land to Ashok Kumar on 5.7.1979 and from 1979 onwards, said Ashok Kumar was owner in possession of the disputed land. Ashok Kumar executed registered sale deed dated 21.6.1980 in favour of the respondents and mutation No. 794 dated 28.9.1981 was sanctioned in their favour. Khanda Singh filed suit No. 356 of 1982 against Smt. Parmeshwari and Smt. Prem Lata seeking injunction against dispossession. The suit was decreed ex-parte on 7.9.1983. On the basis of judgment and decree, Khanda Singh was interfering in the possession of the plaintiffs- respondents and hence suit was filed by the respondents-Nirmolak Singh etc. on 24.9.1983.The learned trial court decreed the suit vide judgment and decree dated 13.5.1985. The First Appellate Court dismissed the appeal of Khanda Singh on 5.5.1986. Hence, the present appeal. Learned counsel for the defendant No.1/appellant Khanda Singh submits that appellant/defendant No.1 was initially a tenant under defendants No. 2 and 3 namely Smt. Parmeshwari and Smt. Prem Lata. The suit land was allegedly alienated in favour of Ashok Kumar by defendants No. 2 and 3 without his knowledge. He has further submitted that the appellant had no knowledge that Ashok Kumar had sold this land to the RSA No. 2052 of 1986 3 plaintiffs/respondents No.1 and 2 namely Nirmolak Singh and Darshan Singh. The appellant filed a suit against defendants No.2 and 3 and the same was decreed against them. Learned counsel has further submitted that in another suit filed by the appellant, Hon'ble the Supreme Court granted stayed (Exhibit D1) in favour of the appellant in respect of the disputed land. It has further been submitted that the first appellate court did not take into account the important factor regarding the order of status-quo passed by Hon'ble the Supreme Court. Learned counsel has also submitted that the courts below also did not consider the factual position regarding 30 years old possession of the appellant as tenant at Will of defendants No. 3 and 4. On the other hand, learned counsel for the respondents has submitted that the appellant was dispossessed on 4.2.1978 vide Rapat No.222, Exhibit P.7. when defendants No.2 and 3 filed a suit under Section 14-A-ii of the Punjab Security of Land Tenure Act in the court of Assistant Collector IInd Grade (Tehsildar), Fatehabad. He has further submitted that subsequently disputed land was given by Smt. Premeshwari and Smt. Premi, defendants No. 2 and 3 to Ashok Kumar. It has also been submitted that Civil Suit bearing No.356 of 1982 filed by the appellant against defendants No.2 and 3/respondents No.3 and 4 was not lawfully ex-parte decreed in favour of the appellant on 20.4.1982 as defendants No. 2 and 3 had no interest in the suit land as they had sold the suit land to Ashok Kumar on 5.7.1979. I have heard the learned counsel for the parties and perused the record with their able assistance. RSA No. 2052 of 1986 4 The main question to be determined by this Court is whether the learned courts below have erred in not holding appellant/defendant No.1 tenant at Will and in cultivating possession of the suit property for more than 30 years at the time of institution of the suit? From the perusal of record, it is made out that defendant Nos. 2 and 3 filed a suit under Section 14-A(ii) of the Punjab Security of Land Tenures Act, 1953 against Khanda Singh, appellant, in the Court of Assistant Collector-II Grade, Fatehabad, which was decided in favour of defendant Nos. 2 and 3 and accordingly appellant was dispossessed on 4.2.1978 from the suit property as evidenced by Rapat No.222, Exhibit P.7. Hence, on the date of filing of the present suit, defendant No.1/appellant was not in possession of the suit land. It is also made out that when Hon'ble the Supreme Court granted status-quo on 21.11.1980 (Exhibit D1), defendant No.1/appellant had already been dispossessed. In the circumstances, the courts below have rightly recorded the finding, that defendant No.1/appellant not being in possession, is a clear finding of fact. It is further made out that when Civil Suit No.356 of 1982 was decreed ex- parte in favour of appellant/defendant No.1 on 7.9.1983, defendants No.2 and 3 had no interest in the suit land as they had sold the land to Ashok Kumar on 5.7.1979, which is proved from Exhibit P.5. Subsequently, Ashok Kumar alienated the suit land in favour of plaintiffs/respondents No. 1 and 2 vide registered sale deed dated 21.6.1980. Thus, the learned courts below have rightly held that the judgment and decree passed in Civil Suit No.356 of 1982 was null and void as defendants No. 2 and 3 had no interest in the land in dispute. The finding recorded by the courts below on this aspect of the matter is pure finding of fact. RSA No. 2052 of 1986 5 As per Exhibit P5 (Khasra Girdawari), it is established that sale deed dated 5.7.1979 was in favour of Ashok Kumar, who remained in possession till Rabi 1983, which is established from Khasra Girdawari i.e. Exhibit P6. Thereafter, plaintiffs/respondent No. 1 and 2 purchased the land in dispute from Ashok Kumar vide sale deed dated 21.6.1980 and mutation No.794, Exhibit P4 was entered in their favour. Therefore, the plaintiffs/respondents No. 1 and 2, being owners of land in dispute, is clearly proved by the documentary evidence on record. In view of the above discussion, it can be said that there is no contrary evidence on the record and it is sufficiently proved that the plaintiffs/respondents No.1 and 2 are owners of the suit land as well. The courts below have rightly held that the plaintiffs are owners in possession of disputed land as co-sharers. No other substantial question of law arises for determination in the second appeal. In view of the above, no interference is called for in the findings of the courts below. Accordingly, the instant appeal is dismissed. (JITENDRA CHAUHAN) JUDGE . March 23,2011 ms/mk Note: Whether to be referred to Reporter? Yes / No