IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1559 of 2003 (O.&M.) Date of Decision: 18.5.2009 Lakha Singh. ....... Appellant through Shri Deepak Thapar,Advocate. Versus Amar Singh (since deceased) through L.Rs. and another. ....... None for L.Rs. of Respondent No.1 Respondent no.2 through Shri Vijay Sharma, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 10.1.2000 passed by the Civil Judge (Junior Division), Patiala (hereinafter described as `the trial Court') and the Additional District Judge, Patiala (referred to hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant have been dismissed. Initially, a suit for declaration and permanent injunction was filed by the appellant against Amar Singh, since deceased and now represented by his legal representatives. Upon notice, Amar Singh had R.S.A.No.1559 of 2003 (O&M) -2- .... appeared and filed his written statement pleading therein that Sucha Singh was a necessary party and since he had not been impleaded, the suit was not maintainable. Thereafter, on an application moved by Sucha Singh under Order 1 Rule 10 of the C.P.C., he was impleaded as defendant no.2 in the suit. The appellant also sought amendment of the plaint by moving an application under Order 6 Rule 17 of the C.P.C. which was allowed. In his amended plaint, he prayed for a decree of declaration to the effect that he is owner in possession of the suit land by way of adverse possession and Amar Singh son of Mam Raj (since deceased) through his legal representatives and Sucha Singh -defendant/respondent no.2 had no concern or connection with it as there was no relationship of tenant and landlord between them. A decree for permanent injunction was also sought restraining Amar Singh and Sucha Singh, their servants or agents from taking forcible possession of the suit land from the appellant or dispossessing him therefrom illegally or forcibly or under the execution of judgment and decree dated 30.8.1995 passed by Assistant Collector Ist Grade, Patiala (for short, `the ACIG'). Still further, the appellant had prayed that Amar Singh and Sucha Singh or their servants and agents be restrained from alienating the suit land in any manner in favour of any person or from creating any charge or encumbrance thereon. It was pleaded by the appellant that he was in actual cultivating physical and continuous possession of the suit land since 1949 without any R.S.A.No.1559 of 2003 (O&M) -3- .... payment of chakota or batai to Amar Singh and Sucha Singh and, therefore, his possession is open, continuous, hostile and to their knowledge. It was further pleaded that he had become owner of the suit land by way of adverse possession and Amar Singh & Sucha Singh had no concern therewith. It was alleged that Amar Singh & Sucha Singh were claiming ownership of the suit land on the basis of wrong revenue entries which were got made by them on the basis of judgment and decree dated 11.5.1972 which were never passed by a Civil Court and if that was so, the said judgment and decree were illegal, null & void and did not confer any title qua the suit land in their favour. It was further alleged that the said judgment and decree were the result of collusion of Amar Singh with the Sarpanch of the Gram Panchayat of the village. The appellant had pleaded that the subsequent sale deed dated 27.9.1990 allegedly executed by Amar Singh in favour of Sucha Singh was also null & void and was a false and fabricated document. He further pleaded that Amar Singh & Sucha Singh were claiming possession of the suit land since 1974 and he he had been denying their claim ever since. It was averred that the entries in column no.9 of the jamabandis for the years 1974-75 and 1979-80 and those in column no.3 of khasra girdawari for the period 21.10.1975 to 26.3.1981 showing him as paying chakota at the rate of Rs.20/- per acre per year were illegal, null & void and without any basis. It was alleged that judgment and decree dated 30.8.1985 of the ACIG which were passed in favour of Amar Singh & Sucha Singh were illegal, null & void and without jurisdiction and were not binding on the appellant. Similarly, he alleged that the judgments and decrees passed R.S.A.No.1559 of 2003 (O&M) -4- .... by the Collector, Patiala; Commissioner, Patiala and Financial Commissioner dismissing his appeal and revision were illegal & void and were liable to be set aside as they were not binding upon him and that the findings recorded by the revenue courts regarding relationship of tenant and landlord were not binding upon the Civil Court. In his written statement, Amar Singh had pleaded that the appellant was a tenant of the Gram Panchayat and thereafter, the suit land vested in him by virtue of decree dated 11.5.1972 passed by the Civil Court. It was averred that an appeal was filed on 15.3.1978 in the Court of D.D.P.O., Patiala which was dismissed on 24.1.1980. It was further averred that on 1.8.1984, the Gram Panchayat had again filed appeal before the D.D.P.O., Patiala which was dismissed on 3.6.1987. Amar Singh had alleged that since the appellant had not paid chakota or batai to him, eviction proceedings were initiated on account of non-payment of rent and other grounds and that the ejectment of the appellant was ordered from the suit land which was confirmed by the Collector, the Commissioner and the Financial Commissioner and that the orders passed by the revenue authorities were perfectly correct. He had further alleged that the orders of the revenue authorities could not be challenged in the Civil Court and that the material facts have been concealed by the appellant. It was averred that the suit land was transferred to Sucha Singh on 27.9.1990, who had become owner of the land measuring 236 kanals which included the suit land as well . It was further averred that he had executed an agreement to sell in favour of Sucha Singh to sell his whole land; that Sucha Singh had filed a R.S.A.No.1559 of 2003 (O&M) -5- .... suit for specific performance which was decreed on 1.3.1990 and the appeal against the said decree was got dismissed as withdrawn being compromised and thereafter the sale deed was executed on 27.9.1990. It was pleaded that since ejectment of the appellant had been ordered, he had no right to retain the possession of the suit land. In his written statement, Sucha Singh had also taken similar pleas as had been taken by Amar Singh. The parties went to trial on the following issues:- 1. Whether the plaintiff is owner in possession of the land in suit?OPP 2. Whether the judgment and decree dated 30.8.85 passed by Shri S.K.Ahluwalia, Assistant Collector Ist grade, Patiala are illegal, null and void and are without jurisdiction and are unexecutable and are not binding upon the plaintiff?OPP 3. Whether the plaintiff is entitled to declaration and injunction as prayed for?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether this Court has got no jurisdiction to try the present suit?OPD 6. Whether the suit is barred by time?OPD 7. Whether the plaintiff has no locus standi to file the present suit?OPD 8. Whether the plaintiff has become owner by way of adverse R.S.A.No.1559 of 2003 (O&M) -6- .... possession?OPD 8A. Whether the judgment and decree dated 23.12.86 passed by Shri Bhupinder Singh, PCS, Collector and judgment and order dated 9.3.1994 passed by Shri V.N.Ojha, I.A.S., Commissioner and that of Shri Kamal Nain Singh, I.A.S., Financial Commissioner, Chandigarh are illegal,null and void, without jurisdiction and are unexecutable, if so, its effect?OPP 8B. Whether defendant no.1 had become owner of suit land by virtue of civil Court decree dated 11.5.1972 passed by the Court of Shri G.S.Bhatti, Sub Judge IInd Class, Patiala, if so, its effect?OPD 9. Relief. After appraisal of the entire evidence on record, the trial Court concluded that the appellant had failed to substantiate his plea of adverse possession and that since there was a valid sale deed in favour of Such Singh, his ownership could not be established. It was also concluded that since the appellant had lost his battle before the revenue authorities, his eviction as a natural corollary had to follow. Consequently, the suit of the appellant was dismissed. In appeal, the findings recorded by the trial Court were affirmed by the First Appellate Court. This has resulted in the filing of the present Regular Second Appeal. R.S.A.No.1559 of 2003 (O&M) -7- .... Learned counsel for the appellant has contended that the decree dated 11.5.1972 of the Civil Court is erroneous and is liable to be set aside. He submitted that in fact, there is no decree at all. It was further submitted that since the ownership of Amar Singh qua the suit land was seriously in doubt, he could not have transferred the same in favour of Sucha Singh. On the basis of these contentions, he prayed for setting of the impugned judgments and decrees. On the other hand, learned counsel for respondent no.2 contended that decree dated 11.5.1972 was validly passed in favour of Amar Singh and the appellant was precluded from challenging the same at this point of time as it was within his knowledge all throughout. He further contended that the competent revenue authorities have already determined the issue of eviction of the appellant from the suit land and those orders cannot be challenged before the Civil Court on account of lack of jurisdiction. It was submitted that the Courts below have rightly concluded that the appellant had no right to remain in possession of the suit land and that his plea of adverse possession was not established. I have given my thoughtful consideration to the rival contentions/ submissions and have perused the impugned judgments. The appellant's case is that there is no decree dated 11.5.1972. However, this plea has to be rejected outrightly. The appellant is acknowledging the decree dated 11.5.1972 and has also challenged the entries made in the revenue record on its basis. The revenue entries were in the knowledge of the appellant and, therefore, he ought to have challenged R.S.A.No.1559 of 2003 (O&M) -8- .... the same at the earliest point of time. He rather unsuccessfully contested the proceedings before the revenue authorities which pertained to his eviction on the ground of non-payment of rent etc. All these entries were upheld from the Court of first instance, i.e., ACIG, up to the level of this Court. After having unsuccessfully contested these proceedings, he resorted to the filing of the instant suit in which he challenged decree dated 11.5.1972. In the meanwhile, the suit land had already been sold to Sucha Singh- respondent no.2, who has contested this appeal. The sale deed in his favour was executed on 27.9.1990, whereas the suit was filed in the year 2000. It is apparent that the appellant was in the know of the decree of 1972 throughout, but he never made any attempt to challenge the same. The proceedings before the revenue authorities which have been contested by the appellant shows concerted efforts of Amar Singh and respondent no.2 to get the suit land vacated and, therefore, it cannot be said that even the possession of the appellant was hostile to the knowledge of the true owners. Therefore, looking at it from any angle, the appellant has no right to the suit land after having contested the eviction proceedings against him unsuccessfully. The following questions of law have been formulated by the learned counsel for the appellant in paragraph 13 of the grounds of appeal, which in my opinion, do not arise for determination by this Court as the Courts below have decided purely questions of fact and their findings do not warrant any interference:- 1. Whether can a defendant in a suit claim title to a property of R.S.A.No.1559 of 2003 (O&M) -9- .... a third party viz-a-viz plaintiff on the basis of an alleged decree in his favour, alleged to have been suffeed by that third party without producing and proving on record the said alleged decree, when the onus to prove is on him? 2. Whether the onus to prove the plea as to title to the property claimed by defendant/respondent on the basis of a Civil Court judgment and decree stands discharged even if that judgment and decree is not proved on record, and is it for the plaintiff/appellant to prove in the negative? 3. Whether the orders/ decrees of Revenue Courts based on alleged Civil Court decree could be challenged in a subsequent suit and are null and void and cannot be made basis of a claim when the party claiming under that decree fails to prove the said decree? 4. Whether can a party to a suit against the other claim title to the property of a third person on the basis of a decree alleged to have been suffered on by that third party without producing and proving the same on record? The aforesaid questions, in any eventuality, could have been answered if the decree dated 11.5.1972 was challenged within the period of limitation prescribed and since the suit was filed belatedly, even though the appellant had knowledge of the same, the challenge to it had to be negatived on this ground alone. Besides, even if, it was to be accepted that challenge was maintainable, then also, it was for the appellant to show that the decree R.S.A.No.1559 of 2003 (O&M) -10- .... was bad on the grounds on which it had been so alleged. Consequently, this appeal is dismissed being devoid of any merit. May 18,2009 ( Mahesh Grover ) “SCM” Judge