IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular Second Appeal No. 566 of 1994 Date of decision: 12.3.2008 Joginder Ram and another --- Appellants Versus Nanak Chand and others --- Respondents *** CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. R. N. Moudgil, Advocate for the appellants. Mr. P.K. Gupta, Advocate for the respondents. --- AJAY KUMAR MITTAL, J. This second appeal is at the instance of defendants – Joginder Ram and Brahma Nand only. The defendants in the suit were, however, five in number, out of whom defendant nos. 3 to 5 were proceeded ex parte and the suit was contested by two defendants i.e. the present appellants. Even, originally the suit was also filed by one Bansi Lal who, as indicated in trial court judgment, expired during the pendency of the suit and his legal representatives, Nanak Chand Sharma and others were brought on record. RSA No. 566 of 1994 -- Plaintiff’s suit for declaration had been decreed by the trial court vide judgment and decree dated 24.11.1989. Appeal carried by defendant nos. 1 and 2 before the first appellate court also did not succeed. It was dismissed by the Additional District Judge, Ropar vide judgment and decree dated 28.1.1994. To appreciate the dispute between the parties, it is necessary to make reference to some facts: The dispute herein pertains to shares of the parties in two parcels of land. One parcel of land is 29 Kanals and 14 Marlas whereas the other is 81 Kanals and 1 Marla as indicated in the entries in the jamabandi for the year 1981-82. The plaintiff, Bansi Lal (now deceased and represented by his legal representatives) brought a suit for a decree of declaration to the effect that he was owner in possession of half share in land measuring 29 Kanals and 14 Marlas and 1/4th share in land measuring 81 Kanals and 1 Marla as fully described in the head note of the plaint. It was stated that the entries in the revenue record in so far as the shares of the parties were concerned, were wrong and the plaintiff had been wrongly shown as co-owner of 3/8th and 3/16th share in the above two parcels of land. Mutation no. 678 dated 21.7.1967 vide which the share of the plaintiff in the above parcels of land was reduced and that of defendant no.1 was increased, was stated to be wrong and illegal. It was further stated that land measuring 8 Kanals and 8 Marlas in standard area being 1/5th share of land measuring 41 Kanals and 19 Marlas in standard area had been allotted to defendant no.1 in excess of his due share during Pa ge nu RSA No. 566 of 1994 -- consolidation proceedings. It was clarified that defendant no.1 was actually entitled to 2/5th share in the land measuring 41 Kanals 19 Marlas equal to the share of defendant no.2, Brahma Nand, but he had been allotted 3/5th share and, thus, the 1/5th share allotted to defendant no.1 in excess of his due share ought to have actually been allotted to the plaintiff. The reason for appearance of wrong entries in the revenue record was stated to be because of a fact that the land in dispute was once acquired for being utilized by the National Fertilizers Limited and the plaintiff was paid to the extent of half share and 1/4th share respectively, in the aforesaid two parcels of land which was later on released and in this process, the wrong and incorrect share of the plaintiff in the suit land was mentioned in mutation no. 678. According to the plaintiff, this fact came to his knowledge for the first time on 20.7.1987 during the course of consolidation proceedings when copies of jamabandis were obtained and on 13.8.1987 when copy of mutation no. 678 was obtained. It was claimed that notwithstanding the aforesaid developments, the plaintiff had been in continuous, uninterrupted and peaceful possession of his share in the suit land i.e. half share in land measuring 29 Kanals 14 Marlas and 1/4th share in land measuring 81 Kanals and 1 Marla. When the consolidation Department came into motion to commence proceedings for consolidation of holdings and proposed to allot land to the plaintiff in accordance with his shares indicated in the mutation, which according to plaintiff were wrong and incorrect, the plaintiff made an application before the Consolidation Pa ge nu RSA No. 566 of 1994 -- Officer for allotting him the correct shares of land but he was advised to approach the civil court. On the premise of the aforesaid facts, the plaintiff prayed for a decree of declaration that he was owner in possession of half share and 1/4th shares, respectively, in two parcels of land indicated above; mutation no. 678 dated 21.7.1967 and the subsequent revenue record showing the plaintiff to be owner in possession of a lesser share were wrong and illegal. A further declaration was prayed that the plaintiff be held entitled to joint ownership and possession to the extent of land measuring 8 Kanals and 8 Marlas i.e. 1/5th share in the suit land measuring 41 Kanals and 19 Marlas. As a consequential relief, a decree for permanent injunction was also sought restraining the defendants from selling 1/5th share of the plaintiff to any body else and also from raising any construction or structure in the suit land till partition. In the alternative, decree for joint possession was also prayed for. Defendant nos. 1 and 2 (appellants herein) in their joint written statement raised certain preliminary objections and controverted the averments made by the plaintiff. It was stated that the plaintiff never came into possession of any portion of the suit land at any point of time in any capacity whatsoever. Quoting one instance, it was stated by the defendants that the plaintiff had once sold land vide registered sale deed dated 15/17.1.1974 to defendant no. 5 and in that process he had admitted the correctness of the entries in the revenue record by making the jamabandi for the year 1971-72 as the basis of the Pa ge nu RSA No. 566 of 1994 -- aforesaid sale deed. In any case, it was further pleaded; the contesting defendants had become owners of the alleged share of the plaintiff in the suit land by adverse possession. On these hotly contested rival pleas, the trial court framed the following issues:- 1- Whether the plaintiff is owner in possession to the extent of ½ share in land measuring 29 Kanals 14 Marlas and to the extent of ¼ share in land measuring 81 Kanals 1 Marla as entered in jamabandi 1981-82 and as fully described in the head note of the plaint? OPP 2- Whether mutation no. 678 dated 21.7.1967 and subsequent entries based thereon in the revenue records showing the plaintiff to be owner of lesser share are wrong and illegal? OPP 3- Whether the plaintiff is entitled to the joint ownership and possession as co-sharer to the extent of land measuring 8 Kanals 8 Marlas standard area being 1/5 share of land measuring 41 Kanals 19 Marlas standard area as entered in the Khatauni Paimaish and as detailed in the head note of the plaint? OPP 4- Whether defendant no.1 has been allotted excess area during consolidation proceedings than the area to which he was legally entitled to? OPP 5- Whether the suit is not within time? OPD Pa ge nu RSA No. 566 of 1994 -- 6- Whether the plaintiff is estopped to sue by his act, conduct and admissions as alleged? OPD 7- Whether the plaintiff has no locus standi to file the suit? OPD 8- Whether this Court has no jurisdiction to entertain and try the suit? OPD 9- Whether the suit is bad for non-joinder of necessary parties? OPD 10- Whether the suit is not competent and maintainable as alleged? OPD 11- If issue no. 1 and 2 are proved, whether defendants no. 1 and 2 have become owners of the rights of the plaintiff in the suit land by adverse possession? OPD 12- Relief. The trial court on appreciation of the evidence returned a finding that at the time of consolidation proceedings, the plaintiff was in possession of half share in the land measuring 29 Kanals and 14 Marlas whereas to the extent of 1/4th share in the land measuring 81 Kanals and 1 Marla. It was further held that mutation No. 678 wrongly attested and the revenue entries based thereon showing the plaintiff to be owner of a lesser share were wrong and illegal. The trial court also held that in the aforesaid two lands, the share of defendant no.1 was 1/4th in the land measuring 29 Kanals 14 Marlas and 1/8th share in land measuring 81 Kanals and 1 Marla and share of defendant no. 1 was equal to that of defendant no.2 which fact had been rightly recorded in Pa ge nu RSA No. 566 of 1994 -- the jamabandis upto the year 1981-82. The trial court further returned a finding that it was all during the course of consolidation in the village that the share of the plaintiff came to be shown less and, thus, he was entitled to 1/5th share in the land measuring 45 Kanals 10 Marlas described in the Jamabandi for the year 1987-88 (Exhibit D-4) the standard area whereof is 41 Kanals 19 Marlas, out of the 3/5th share of defendant no.1 and thereby the share of defendant no.1 has to be reduced to 2/5th. Issue nos. 1 to 4 were consequently decided in favour of the plaintiff. The suit was held to have been filed within the period of limitation. Objection of the defendants that the plaintiff was estopped to sue by his own act and conduct was rejected. Similarly, the plea of the defendants that the plaintiff had no locus standi to file the suit was not accepted. It was held that the trial court had the jurisdiction to try the suit. No defect was found in the competency and maintainability of the suit. Plea of the defendants of having become owners by way of adverse possession was negatived by the trial court. In the result, the suit was decreed against defendant no.1 with costs for joint possession of 1/5th share of land measuring 45 Kanals 10 Marlas the standard area whereof is 41 Kanals 19 Marlas. A decree for declaration was also passed to the effect that defendant no.1 had got 2/5th share and not 3/5th share, defendant no.2 has got 2/5th share and the plaintiff 1/5th share in the aforesaid land. Pa ge nu RSA No. 566 of 1994 -- The First Appellate Court affirmed the findings of the trial court on all the issues and consequently dismissed the appeal carried at the instance of the defendants. I have heard learned counsel for the parties and have carefully examined the record. Shri Moudgil, learned counsel appearing for the appellants vehemently submitted that the share of defendant Nos. 1 and 2- appellants had been rightly recorded by the consolidation authorities and the mutation had been legally sanctioned on 21.7.1967. According to the learned counsel, the mutation was sanctioned on 21.7.1967 vide Exhibit P-21 whereas the suit had been filed in 1987 and when the plaintiff had the knowledge of mutation, the suit was barred by limitation in view of the law enunciated in Smt. Sewti Devi v. Kanti Parshad and others, A.I.R. 1973 Pb, & Hr. 126 and Lehna Singh and others V. Ram Singh and others, 1981 PLJ 470. The counsel further urged that the suit was not maintainable as the plaintiff had filed the suit simpliciter for declaration without claiming the relief of possession when he was not in possession of the suit property. The next contention raised was that the issue No.10 had not been decided, inasmuch as no finding had been recorded by the lower appellate court and in the light of Gurcharan Singh and another V. Gurcharan Singh and others, 1999(3) PLR 75 and Madan Mohan Lal v. Union of India, 2001(3) PLR 594, the appeal deserves to succeed. Pa ge nu RSA No. 566 of 1994 -- According to the learned counsel, the substantial question of law in terms thereof arises for the consideration of this Court. Shri Gupta, learned counsel appearing for the respondents projected that Khata remained joint from 1967 to 1987 whereas the consolidation took place in 1987 when the Khata was separated; the suit having been filed in 1988 was within limitation. Learned counsel relying upon Ibrahim v. Smt. Sharifan, A.I.R. 1980 P & H 25 and Mohinder Singh and others V.Shangara Singh and another, 2007(2) PLR 18 submitted that no question of law arises for consideration of this Court. The counsel supported the judgment and decree of the court below and prayed for dismissal of the appeal. The core question that needs determination is, as to what was the share of the plaintiff and the defendants prior to acquisition and, whether there was any change in the same when the property was released from acquisition. In order to effectually adjudicate the dispute between the parties, the position as it existed prior to the acquisition by the National Ferilizers Ltd. may be determined. Jamabandis Exhibits P-26 and P-27 for the years 1951-52 are relevant in this regard. The courts below, on appreciation of the documentary evidence had concluded that :- (a) Exhibit P-27, jamabandi for the year 1951-52 relates to the land bearing Khewat No. 46, Khatauni Nos. 213 to 216 and corresponds to the land measuring 29 Kanals 14 Marlas wherein the share of the plaintiff-Bansi Lal has been shown as half, and that of Milkhi Ram (father of defendant No.1) as Pa ge nu RSA No. 566 of 1994 -- 1/4th and defendant No.2 Brahma Nand also has 1/4th share. Defendant Nos. 3 and 4 or their father Mali Ram are not shown to be co-owners in this land; (b) Exhibit P-26, jamabandi for the year 1951-52 corresponds to the land measuring 81 Kanals 1 Marla comprised in Khewat No. 44 wherein the share of Bansi Lal is 1/4th and that of Mali, father of defendant Nos. 3 and 4, is half share, and defendant No. 2-Brahma Nand and Milkhi Ram father of defendant No.1-Joginder Ram are owners to the extent of 1/8th share each. Nothing could be shown by the learned counsel for the appellants that the aforesaid findings are perverse or erroneous in any manner. The inevitable conclusion on the basis of the aforesaid evidence is that before the acquisition of the property in land bearing Khewat No. 46, the plaintiff had half share, father of defendant No.1 had 1/4th share whereas defendant No.2 was owner of 1/4th share. In Khewat No. 44, father of defendant Nos. 3 and 4, namely, Mali, had half share, defendant No.2 Brahma Nand had 1/8th share and Milkhi, father of defendant No.1, had 1/8th share and Bansi Lal plaintiff had 1/4th share. It may be mentioned here that at the time of acquisition, it was acquired in the shares mentioned aforesaid. Now the next important question that requires determination is, regarding the amount of compensation which was returned by the parties. Exhibit P-4 is a statement of amount of compensation which Pa ge nu RSA No. 566 of 1994 -- was to be returned by the parties at the time of release of land. According to this, at the time of de-requisition of land, the parties were required to return the amount of compensation as per the following details:- (1) Mali, father of defendant No. 3 and 4 = Rs. 10273.57 (2) Defendant No.2 Brahma Nand = Rs. 5581.33 (3) Milkhi father of defendant No.1. = Rs. 5581.33 (4) Plaintiff Bansi Lal = Rs. 11706.50” Still further, the notices, Exhibits P-5 and P-6 which were issued by the Tehsildar to the father of defendant No.1 and plaintiff- Bansi Lal respectively also show the demand of above amount of compensation. Now the total amount out of the compensation which was refunded by the plaintiff and the father of defendant No.1 was Rs. 17,287.83 (i.e. Rs. 11706.50) of the plaintiff and (Rs. 5581.33) of father defendant No.1. It has been mentioned in Ex. P-4 that the total amount deposited vide challan No. 20 dated 16.6.1967 was Rs. 17287.83. Nothing had been shown by defendant No.1 to the effect that the aforesaid amount was paid in equal share as claimed by him. In the light of aforesaid, it is, thus, clear that the share of the parties before acquisition and after de-acquisition would be same as the amount of compensation was received by the plaintiff and father of defendant No.1 in that proportion and was deposited by them in the same proportions at the time of de-acquisition. Accordingly, it is held that at the time of mutation, the shares that have been entered equally Pa ge nu RSA No. 566 of 1994 -- between the parties were erroneous and illegal. Thus, it is concluded that the plaintiff at the time of consolidation proceedings was owner in possession to the extent of half share in the land measuring 29 Kanals 14 Marlas and to the extent of 1/4th share in the land measuring 81 Kanals 1 Marla whereas the share of defendant No.1 was 1/4th share in land measuring 29 Kanals 14 Marlas and not 3/8th share, and 1/8th share in the land measuring 81 Kanals and 1 Marla and not 3/16th share therein. During consolidation, the Khatas of the parties have been segregated and any change in their respective shares is legally unsustainable. Further more, both the courts after analyzing the documentary evidence, including jamabandi for the year 1956-57 (Exhibit P-22), had come to the conclusion that mistake had occurred in respect of the land measuring 45 Kanals 10 Marlas (standard area whereof is 41 Kanals 19 Marlas) and that the shares of defendant Nos. 1 and 2 in this land were equal. . In Khatauni Paimaish, Exhibit D-13, defendant No.1 had been shown to be owner of 3/5th share and defendant No.2 to be owner of 2/5th share. There is thus, excess 1/5th share allocated to defendant No.1 which actually belongs to the plaintiff, who had been allotted less share at the time of consolidation. The plaintiff is accordingly held entitled to 1/5th share allocated to defendant No.1 in the land out of share of defendant No.1 whose actual share is 2/5th share. Pa ge nu RSA No. 566 of 1994 -- Learned counsel for the appellants could not point out any illegality or mis-reading of evidence warranting interference in the aforesaid finding. Now adverting to the contention of the learned counsel for the appellant, there are no two opinions/disputes with the legal proposition laid down in Smt. Sewti Devi’s case (supra) and Lehna Singh and others’ case (supra), but adverting to the facts of the present case, the same do not come to the rescue of the appellants. In the present case, the refund of money at the time of de-acquisition was made by joint challans No. 20 dated 16.6.1967 as detailed in Ex. P-4. The mutation on de-acquisition was also sanctioned and attested in the joint names of the plaintiff and father of defendant No.1 and their Khatas continued to be joint till Jamabandi for the year 1981-82. The rights of the plaintiff came to be affected only during consolidation proceedings which took place after the jamabandi for the year 1981-82 when the consolidation authorities allotted land to the plaintiff and defendant No.1 on the basis of wrong shares which had been incorporated in the revenue record on the basis of wrong mutation, Exhibit P-21. The plaintiff had been in possession of the part of the land till the completion of the consolidation proceedings and repartition thereof. The jamabandi prepared thereafter is for the year 1987-88 (Exhibit D-4) wherein no share of the plaintiff has been shown which had given cause of action to the plaintiff to agitate his grievance. Moreover, Exhibit P-15, the order of consolidation officer dated 15.7.1987 also depicts that the plaintiffs had claimed ownership at that Pa ge nu RSA No. 566 of 1994 -- time also which was rejected giving cause of action to the plaintiff and the suit having been filed within three years therefrom, is within limitation. The next contention of the learned counsel for the appellant is equally merit-less. After consolidation, the land has been repartitioned and vide Exhibit D-4 (jamabandi for the year 1987-88), defendant Nos. 1 and 2 have been allotted a joint Khata of their holding consisting of land measuring 45 Kanals 10 Marlas (standard area whereof is 41 Kanals 1 Marla) which is in their possession. The plaintiff has, in the alternative, claimed a decree for joint possession of the suit land and, therefore, the contention of the appellants does not carry any weight and the suit is maintainable. Issue No.10 is to the same effect. The trial court had thus, rightly decided issue No. 10 in favour of the plaintiff. The aforesaid findings were affirmed on appeal. Thus, it cannot be said that issue No.10 has not been dealt with by the appellate court. The contention being devoid of any force is, thus, rejected. The proposition of law enunciated in the judgments relied upon by the counsel for the appellants is well recognized but the same does not afford any assistance to him in the facts and circumstances as emerging on record. Finding no merit in the appeal, the same is dismissed. (AJAY KUMAR MITTAL) March , 2008 JUDGE *RKMALIK* Pa ge nu