RSA No.2280 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2280 of 2007 Date of decision: 26.5.2010 Om Parkash @ Omi and others ......Appellant(s) Versus Kalawati and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Amit Jain, Advocate for the appellant. Mr. Adarsh Jain, Advocate for respondents No.1 to 6. Mr. Atul Kaushik, Advocate for respondents No.7, 8 and 12. Rakesh Kumar Garg, J. This appellants, who are LRs of plaintiff No.1-Chaju Ram, have filed this appeal challenging the judgment and decree of the Lower Appellate Court whereby the decree passed by the trial Court has been modified holding that only Chaju Ram had become owner in possession of the suit land being occupancy tenants. As per the averments made in the suit, which was filed by Chaju Ram and respondents No.7 to 9, they were in continuous possession of the suit land and therefore, they were entitled to be declared as owners in possession of the suit land being occupancy tenants. The suit was contested by defendant Nos.3 to 9 i.e respondents No.1 to 6 on the ground that suit No.112/SDO titled as Chaju etc. v. Girraj etc. had already been decided on 22.7.1957 by the Court of Assistant Collector, 1st Grade Palwal vide which the occupancy rights were granted to Chaju Ram and late Manni, who was the father of plaintiff No.2 and 3, and plaintiff No.4 were left with no right, title or interest in the suit RSA No.2280 of 2007 2 property. It was further submitted that late Manni son of Jiwana, who was father of plaintiffs No.2 and 3, after obtaining the occupancy rights in the suit land, sold out his share to the father of defendants No.3 to 9 namely Tuhi Ram vide registered sale deed dated 25.5.1965 and in this way Manni, father of plaintiffs No.2 and 3 had got no right, title or interest in the suit land to the extent of half share and they had no locus standi to file the present suit. On merits, it was denied that the plaintiffs were tenants in possession in the suit land as alleged and dismissal of the suit was prayed for. Defendants No.1 and 2 failed to appear despite service and were proceeded against ex parte on 31.7.1996. After hearing learned counsel for the parties, it was held by the trial Court that the plaintiffs were in cultivating possession of the suit land and they had become owners of the same, being continuous occupancy tenants. Issues No.2 to 6 were decided against the defendants and resultantly, the suit for declaration to the effect that the plaintiffs were owners in possession of the suit land being occupancy tenants, was decreed. Feeling aggrieved from the same, respondents No.1 to 6 filed an appeal before the Lower Appellate Court. Before the Lower Appellate Court, application under Order 41 Rule 27 CPC for leading additional evidence was filed which was allowed vide order dated 12.3.2005 and thereafter, respondents No.1 to 6 tendered documents Ex.D1 i.e. Sale deed , Ex.D2 copy of mutation, Ex.D3 Jamabandi for the year 1988-89 and closed the additional evidence. On reappraisal of evidence, the Lower Appellate Court found that it was amply proved that the plaintiffs were in possession over the suit land as occupancy tenants. However, Manni, father of plaintiffs No.2 RSA No.2280 of 2007 3 and 3 had sold his share i.e half share of suit land to Tuhi Ram, father of respondents No.1 to 6 vide registered sale deed dated 25.5.1965 (Ex.D1), which is further reflected in the revenue record (Ex.D2 and D3), for a valuable consideration and in the light of the aforesaid evidence, the Lower Appellate Court held that plaintiffs No.2 to 4 had no right title or interest in the suit land and thus, findings of the trial Court on issues No.1 were modified by holding that only plaintiff No.1-Chaju Ram had become owner in possession of the suit land being continuous occupancy tenant and plaintiffs No.2 to 4 (i.e. Respondents No.7 to 9) had no right, title or interest in the suit land. Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, only the appellants, who are the LRs of plaintiff No.1, have filed the instant appeal raising grievance that the approach of the learned First Appellate Court in modifying the judgment and decree of the trial Court is illegal as once it was established on record that the appellants being successors-in-interest of Chaju Ram-plaintiff No.1, were entitled to be declared as owners being occupancy tenants, the decree could not have been modified to the extent of half share only on the basis of sale deed dated 25.5.1965 as the same was not proved in accordance with law and thus, the following substantial questions of law arise in this appeal: “(i) Whether in the facts and circumstances of the instant case the approach of the learned 1st Appellate Court in modifying the judgment and decree of the trial Court and making out entirely a new case for the contesting respondents can be sustained in law? (ii) Whether the plaintiff/appellants, having established their status as occupancy tenants and RSA No.2280 of 2007 4 entitled to the declaration, the modification ordered by the learned 1st Appellate Court can be sustained in law?” On the other hand, learned counsel appearing on behalf of the respondents has supported the impugned judgment and decree. I have heard learned counsel for the parties. At the outset, it may be noticed that the appellants herein are not claiming more than the share of Chaju Ram in the suit land and judgment and decree of the trial Court qua the rights of Chaju Ram has not been modified. Plaintiffs No.2 to 4 i.e. Respondents No.7 to 9 against whom the decree has been passed by the Lower Appellate Court, have not come forward to challenge the same. In this view of the matter, the argument raised by the learned counsel for the appellants is without any substance and is liable to be rejected as the appellants, who are the legal representatives of Chaju Ram, have no locus standi to file this appeal for the share of plaintiffs No.2 to 4 who have not come forward to challenge the impugned judgment and decree. It may also be pointed out that plaintiffs No.2 to 4 are represented in this appeal and their counsel has not raised any grievance on their behalf. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. May 26, 2010 (RAKESH KUMAR GARG) ps JUDGE