RSA No.3357 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3357 of 2006 (O&M) Date of Decision: December 4 , 2009 Lubhaya Ram ...........Appellant Versus Balaki Ram ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.I.K.Mehta, Senior Advocate with Mr.Ranjit Mehta, Advocate for the appellant. ** Sabina, J. Plaintiff filed a suit for joint possession. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Pehowa vide judgment and decree dated 17.5.2004. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the District Judge,Kurukshetra vide judgment and decree dated 2.11.2004. Hence, the present appeal. The case of the parties, as noticed by the learned District Judge, in paras 2 to 4 of its judgment reads as under:- “ 2.The plaintiff earlier filed a suit no.488 of 1989 against Balki Ram present defendant and his sister Shanti Devi claiming 1/3rd share i.e.1/6th share each of Balaki Ram and Shanti Devi in 52 kanals 1 marla land situated in village Sarsa as described in para RSA No.3357 of 2006 (O&M) 2 no.1 of the plaint on the basis of oral exchange in which the plaintiff gave his 10 kanals 16 marlas land situated in village Sarsa as described in para no.4 of the plaint i.e. 5 kanals 8 marlas each to Balkai Ram and Shanti Devi. The said suit was decreed on 22.7.1989. The plaintiff went to Patwari on 14.6.2002 to obtain copy of jamabandi and mutation sanctioned on the basis of aforesaid decree and thereupon learnt that Balaki Ram defendant had played fraud on the plaintiff as Balaki Ram had already sold his 1/6th share in 52 kanals 1marla land to some other person, but the said sale was not depicted in the revenue record and the defendant's name continued in the revenue record even after sale showing him co-sharer to the extent of 1/6th share in the said land. Despite enquiry, the defendant did not disclose the factum of said sale and kept the plaintiff in dark and obtained exchange decree regarding the plaintiff's land. Thus, the plaintiff is still owner of 5 kanals 8 marlas land being ½ share of 10 kanals 16 marlas land. The defendant is however denying the plaintiff's title on the basis of aforesaid exchange decree. The plaintiff is not bound by the said decree in view of the aforesaid fraud played by the defendant. The plaintiff is still joint owner in possession of 5 kanals 8 Marlas land being 1.2 share of 10 kanals 16 marlas land. The defendant,however, got sanctioned mutation no.2858 on 18.3.1990 in his favour in respect of said 5 kanals 8 marlas land. The wrong revenue entries based on illegal and fraudulent decree of exchange has cast cloud on the title of the plaintiff over the said land. The plaintiff is still owner thereof. The defendant RSA No.3357 of 2006 (O&M) 3 however refused to admit the plaintiff's claim. The revenue entries are liable to be rectified by showing the plaintiff as owner in possession of the said land. The defendant also tried to dispossess the plaintiff forcibly from the said land. So the plaintiff sought decree for joint possession of land measuring 5 knals 8 marlas being 1/2 share of 10 kanals 16 marlas land described in para no.4 of the plaint, as the decree dated 22.7.1989 (wrongly mentioned in the plaint as dated 23.7.1989) passed n civil suit no.408 (wrongly mentioned in the plaint as suit no.488) of 1989 is not binding on the rights of the plaintiff and the same be set aside and declared null and void. 3.The defendant in his written statement admitted the passing of the decree on the basis of exchange, but broadly denied the other plaint allegations and interalia pleaded that the aforesaid decree is legal one. In the alternative it was alleged that the defendant has become owner in possession of the suit property by adverse possession, as his possession is hostile, continuous, peaceful and to the knowledge of the whole world including the plaintiff. The plaintiff has no right, title or interest in the suit property and the revenue entries in the name of the defendant are correct. The defendant also raised preliminary objections that the suit is not maintainable in the present form; that the plaintiff has no locus standi to file the suit; that the suit is bad for non-joinder of parties and the suit is time barred. 4. The plaintiff filed replication, wherein he repudiated the pleas raised by the defendant and reiterated the plaint allegations. RSA No.3357 of 2006 (O&M) 4 On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for the joint possession of the land as alleged?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has no locus standi to file and maintain the present suit?OPD 4. Whether the defendant has become owner by way of adverse possession. If so, its effect?OPD 5. Relief” After hearing the learned counsel for the appellant, I am of the opinion that this appeal is devoid of any merit. Plaintiff had filed a suit for joint possession alleging that the decree dated 23.7.1989 passed in Civil Suit No. 488 of 1989 was not binding on the rights of the plaintiff. The case of the plaintiff was that before exchange of land, defendant had sold his share in 52 Kanals 1 Marla of land. Hence, the exchange became void. However, the plaintiff failed to establish his plea. No documentary evidence was led on record by the plaintiff to establish that defendant had already sold his land prior to the exchange. Moreover, the alleged sale was in the favour of sons of the plaintiff and, hence, it could not be said that the plaintiff was unable to produce the sale deed. Plaintiff also failed to establish that the decree assailed by him was the result of fraud. In the earlier suit, it was pleaded that in terms of the exchange of land, possession had been delivered. Thus, plaintiff himself has alleged that he RSA No.3357 of 2006 (O&M) 5 had taken possession of the land which he got in exchange from the defendant and his sister and it was further alleged that he had given possession of his land in exchange to the defendant and his sister. The decree impugned is dated 23.7.1989,whereas, the suit was filed by the plaintiff on 25.7.2002. In these circumstances, the Courts below have rightly held that had there been any fraud committed by the defendant, the plaintiff would have challenged the impugned decree a lot earlier and would not have waited for so many years before filing the suit. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 4 , 2009 arya RSA No.3357 of 2006 (O&M) 6