RSA No. 1512 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1512 of 2006 Date of Decision: 03.08.2009 1. Krishan; 2. Satish; 3. Zile Singh; s/o Deep Chand son of Ram Jas, r/o village Dhani Ramjas, Tehsil Siwani, District Bhiwani. ... Appellants Versus 1. Smt. Manbhari wife of Gurdayal; 2. Jagir Singh son of Gurdayal; both r/o village Dhani Ramjas, Tehsil Siwani, District Bhiwani. ...Contesting-Respondents 3. Kesho Ram; 4. Tara Chand; 5. Subh Ram; 6. Chander Bhan; s/o Ramjas, r/o village Dhani Ramjas, Tehsil Siwani, District Bhiwani. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Mohit Garg, Advocate, for the appellants. Mr. D.P. Gill, Advocate, for respondents No. 1 and 2. Respondents No. 3 to 6, are proforma-respondents. RSA No. 1512 of 2006 2 SHAM SUNDER, J. * * * * This appeal is directed against the judgement and decree dated 26.09.2003, rendered by the Court of Civil Judge (Junior Division), Siwani, vide which, it dismissed the suit of the plaintiffs/appellants, and decreed the counter-claim of the defendants, and the judgement and decree dated 20.12.2005, rendered by the Court of Additional District Judge-II, Bhiwani, vide which, it dismissed the appeal. 2. Deep Chand father of the plaintiffs and proforma-defendants, purchased 23 bighas 16 biswas i.e. 1/2 share, in the land, comprising khewat No. 236 Min (10-10), Khasra No. 238 (47-12), total measuring 34 bigha 6 biswas, situated in village Siwani, Tehsil Siwani, District Bhiwani, vide sale deed dated 06.08.1979, and the possession of the land was also taken. It was further stated that the said land was purchased from Ram Pyara son of Sahab Ditta etc. Similarly, Manbhari and Jagir Singh, defendants No. 1 and 2, purchased the land, measuring 19 bighas 6 biswas, comprising khewat No. 238, vide sale deed dated 04.12.1978. It was further stated that the portion of the said land, was towards Northern-Western side. It was further stated that after the execution of sale deed, defendants No. 1 and 2, also took possession of the land, purchased by them. It was further stated that, at the time of consolidation, defendants No. 1 and 2, were cultivating the land, measuring 19 bighas 6 biswas, towards north-west, comprising khewat No. 238, while the land measuring 34 bighas 6 biswas, bearing khasra Nos. 236 and 238 min (23-16), was being cultivated by the father of the plaintiffs Deep Chand and proforma defendants. It was further RSA No. 1512 of 2006 3 stated that according to the sale deed dated 06.08.1979, mutation No. 989, was effected, in favour of the father of the plaintiffs, namely Deep Chand and proforma defendants, and according to the sale deed dated 04.12.1978, mutation No. 988, was effected, in favour of defendants No. 1 and 2. It was further stated that after recording the mutation, the concerned Patwari, had wrongly recorded the Tatima of mutation No. 989, while it should have been for mutation No. 988. It was further stated that, at that time, the objections, were raised, and, therefore, Tatima was corrected, in its Nazarshani. It was further stated that after consolidation, the land measuring 55 kanals 9 marlas, comprising khasras and killas Nos. 123/3/2/1/2(2-11), 3/2/2(4-6)4(8-0), 123/5/1(5-12), 6/2(5-12), 7(8-0), 8/1/1 (1-15), 8/1/2(4-1) and 115/24/1(0-12), 24/2(7-8), 25(7-12), came to the share of the father of the plaintiffs and the proforma defendants, whereas the land, measuring 32 kanals 8 marlas, comprising killas No. 115//19/2(1- 17), 20/1(0-14), 21/2(2-12), 22(4), 23/2/2/(3-10), 123/1/2(7-0), 2(3-12), 3/2/2/1(3-6), 8/1/1(1-5), 8/2(0-4), 9/1(3-3), came to the share of defendants No. 1 and 2. It was further stated that since the Tatima of mutation No. 989, was wrongly effected, therefore, the same was corrected, in view of the judgement dated 25.09.1986, passed by the Consolidation Officer, Bhiwani, or in view of the orders of the consolidated Authorities. It was further stated that defendants No. 1 and 2, obtained the judgement and decree dated 12.01.1996, in their favour, wrongly and illegally, and, therefore, the same was liable to be set aside, on the following grounds:- (i) The father of the plaintiffs and the proforma defendants were in cultivating possession of the land, measuring 34 bighas 6 biswas, comprising khasra Nos. 236 min (10-10) and 238 min (23-16). (ii) The suit of defendant No. 1, was barred in view of Section 44 of the Consolidation Act. RSA No. 1512 of 2006 4 (iii) The Civil Court had no power to set aside the judgement of orders of Consolidation Officer. (iv) The contesting defendants never challenged the order of Nazarshani by taking the advantage of judgement and decree dated 22.01.1996. It was further stated that the contesting defendants had got no right, title or interest, in the suit property. The plaintiffs claimed that they were the owners to the extent of 1/5 share and the proforma defendants were owners to the extent of 4/5 share, in the land, fully detailed in the plaint. The contesting defendants, were many a time asked, not to interfere into the peaceful possession of the plaintiffs, over the suit land, but to no avail. On their final refusal, to desist, from their nefarious designs, left with no other alternative, a suit for declaration and permanent injunction, was filed. 3. Defendants No. 1 and 2, filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiffs had got no locus-standi, to file and maintain the suit, and challenge the decree dated 12.01.1996, passed in Civil Suit No. 134, dated 22.01.1991; that the decree dated 08.04.1994, was hit by the principles of lis-pendes; that the suit was vague; that the material facts were concealed by the plaintiffs that they had become owners, on the basis of decree dated 08.04.1994; that the suit was bad for non-joinder of necessary parties; that the plaintiffs had no cause of action to file the suit; that the suit was not maintainable; and that the plaintiffs were estopped from filing the suit by their act and conduct. It was stated that the father of the plaintiffs Deep Chand and proforma defendants purchased 1 /2 share of land, comprising khasra No. 236 min Dakshin and khasra No. 238 min sharki, vide a legal and valid sale deed, and defendants No. 1 and 2, had purchased the land, measuirng 19 bighas 6 biswas, comprising khasra No. 238 min North-West, RSA No. 1512 of 2006 5 vide sale deed dated 04.12.1978, and, accordingly, the entries were made in the revenue record. It was further stated that, as per revenue record, the land was not given to defendants No. 1 and 2, because the order of the Consolidation Authorities, was not correct. At the time of consolidation, defendants No. 1 and 2, became the owner in possession of the land, measuring 31 kanals 4 marlas, comprising muraba No. 123, killa No. 4(8-2), 5(5-12), 7(5-12), 7(8-0), 8 min East (4-0) Deep Chand, father of the plaintiffs raised objection, in view of Section 21(II), which was accepted by the Consolidation Authorities, and, accordingly, killas Nos. 115/19-20-21- 22-23 and 23/1-2-3-8-9, were allotted, in favour of defendants No. 1 and 2, and they filed an appeal, which was accepted, but the old numbers were given to them. It was further stated that defendants No. 1 and 2, again filed an appeal, in view of Section 21(10) before the Assistant Consolidation Officer, Rohtak, vide which, their appeal, was accepted, but the old numbers, were not given to them. Therefore, in view of Section 42 of the Consolidation Act, the appeal, was filed, before the Director, Consolidation Haryana, which was accepted, but the land was not given to them, according to the record. It was further stated that Civil Writ No. 2562 of 1990, was filed by defendant No.1, in Punjab & Haryana High Court, Chandigarh, vide which, the parties, were directed to approach the Civil Court, regarding their claims. It was further stated that on 09.09.1989, a compromise, was effected, between the parties, and accordingly, the land of defendants No. 1 and 2, was given to them, and as per terms and conditions of the said compromise, Civil Suit No. 134 of 1991, was decreed, vide judgement and decree dated 12.01.1996. It was further stated that mutation No. 2225 dated 07.04.1999, was also sanctioned, in terms of the said judgement and decree, and, accordingly, the land measuring 8 kanals 3 RSA No. 1512 of 2006 6 marlas, comprising killa No. 123//24/1-24/2-25/1 0-12, 7-8 and 0-3, came to the share of defendants No. 1 and 2. 4. Defendants No. 1 and 2, also filed counter-claims to the effect that the judgement and decree dated 08.04.1994, vide which, the father of the plaintiffs, alienated the share, in their (plaintiffs') favour, during the pendency of Civil Suit No. 134 of 1991, being wrong, and illegal, was liable to be set aside. It was further stated that defendants No. 1 and 2, were owners in possession of the land, to the extent of 123/24/1(0-12), 24/2(7-8), 25/1(0-3), 115/19/2(1-17), 20/1(0-14), 21/1(2-12), 22(4-8) 23/2/2(3-10), 123/1/2(7-0), 3/2/1/2(2-0), 8/1/1 and (1-5), total 32 kanals – 10 marlas. It was further stated that the plaintiffs had no right to interfere into the possession of the defendants, over the suit property. The remaining averments, were denied, being wrong. 5. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff, are the owner in possession of 1/5th share in the land described in para No. 1 of the plaint? OPP ii) Whether the decree passed by the Civil Court dated 12.01.1996, is null and void and in consequences of the said decree revenue record is also null and void? OPP iii) Whether the plaintiff has no locus-standi to file the present suit? OPD iv) Whether the plaintiff has not come to the Court with clean hands? OPD v) Whether the suit of the plaintif is not maintainable in the present form? OPD vi) Whether the suit of the plaintiff is bad for non-joinde and mis-joinder of necessary parties? OPD vii) Relief. RSA No. 1512 of 2006 7 Additional issue ii-a) Whether the judgement and decree dated 08.04.1994, is wrong, against law and facts? OPD 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs and decreed the counter-claim of the defendants. 7. Feeling aggrieved, an appeal was preferred, by the plaintiffs/appellants, which was also dismissed by the Court of Additional District Judge-II, Bhiwani, vide judgement and decree dated 20.12.2005. 8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 9. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 10. The Counsel for the appellants, submitted that the defendants, filed a writ petition, which was dismissed. He further submitted that the orders, passed by the Consolidation Officer, could not be challanged, in the Civil Court. He further submitted that the alleged compromise dated 09.09.1989, was a false and fabricated document, because the same was not set up in the Writ Petition, in which, judgement dated 01.03.1990, was delivered. He further submitted that had this compromise been, in existence, it would have certainly been set up, in that writ petition. He further submitted that the decree dated 12.01.1996, on the basis of the alleged compromise, which allegedly took place, between the father of the appellants and defendants No. 1 and 2, being illegal, was liable to be set aside. 11. The Counsel for the respondents, however, supported the RSA No. 1512 of 2006 8 judgements and decrees of the Courts below. 12. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. It is evident, from the judgements of the Courts below, that it was, in pursuance of the judgement dated 01.03.1990, rendered in the Writ Petition by the Civil Court, that Civil Suit No. 134 of 1991, against the Additional Director, Consolidation of Holdings Haryana and ten others, including Deep Chand father of the plaintiffs, was filed seeking a decree for declaration, to the effect that, the order dated 25.09.1986, passed by the Consolidation Authority, Bhiwani, alongwith order dated 15.11.1985, passed by the S.O., and the order dated 16.12.1989, passed by the Additional Director, Consolidation Haryana, were illegal, null and void. In that suit, the claim, was also made, that the plaintiff (therein), be declared as owners in possession of rectangle No. 123, killa Nos. 4,5,6,7 and 8. Deep Chand, was one of the defendants, in that RSA No. 1512 of 2006 9 suit, and notice was served upon all the defendants. Defendants No. 1 to 4, in that suit, were proceeded against ex-parte, on 29.01.1992, and defendants No. 5 to 10, including the father of the plaintiffs, in that suit, contested the lis, by evasively denying the averments. It is further evident, from the judgements of the Courts below, that later on, on 09.12.1994, defendants No. 5 to 10, were also proceeded against exparte, in Civil Suit No. 134 of 1991, and the plaintiff Manbhari (therein), was directed to produce ex-parte evidence. In ex-parte evidence, P10 a written compromise was arrived at, between the plaintiff (therein) and defendants No. 5 to 10 (therein), who had agreed to change the possession of the land, as it existed, at the time of consolidation. It is further evident, from the judgements of the Courts below, that as per compromise P10, the impugned orders of the Consolidation Authorities, were set aside, and the plaintiff, in that suit, was directed to approach the Consolidation Officer, Hisar, for correction of the numbers of the suit land. As per compromise P10, the Consolidation Officer, was also directed to make necessary changes, in the revenue record. From the compromise, it was evident, that Deep Chand father of the plaintiffs, alongwith other defendants, had compromised the matter, with defendants No. 1 and 2 and decree was passed accordingly. The concurrent findings of fact, recorded by the Courts below, that Deep Chand, had not challenged the judgement and decree dated 12.01.1996, and, as such, the same had become final and binding, between the parties; that a valid compromise, was arrived at, on the basis whereof, the decree, aforesaid, was passed; that the judgement and decree dated 12.01.1996, did not create right, for the first time, in the property, in dispute, in favour of defendants No. 1 and 2, but only recognized the rights of the parties, already in existence, and, as such, did not require registration; and that the Civil Court, RSA No. 1512 of 2006 10 had got jurisdiction, to entertain and try the suit, are based on the correct appreciation of evidence, and law, on the point, and do not suffer, from any illegality or perversity, and, therefore, warrant no interference. The submission of the Counsel for the appellants, thus, being without merit, must fail,and the same stands rejected. The judgements and decrees of the Courts below, are liable to be upheld. 13. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. 14. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 03.08.2009 (SHAM SUNDER) Amodh JUDGE