RSA No.1209 of 1984 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1209 of 1984 Date of Decision: 17.3.2008 Hukma ..Appellant. Vs. Balbir Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.C.B.Kaushik, Advocate for the appellant. Mr.Harminderjit Singh, Advocate for respondent No.1. Mr.V.P.Singh, Advocate for respondents No.2 and 3. * * * Rakesh Kumar Jain, J. Defendant No.3 Hukma s/o Jug Lal has come up in second appeal against the judgments and decrees of the Courts below where the suit of the plaintiff has been decreed to the effect that plaintiff is owner and is entitled for possession of Gitwar in dispute. Plaintiff Balbir Singh filed a suit against defendants Umed Singh, Amanat Singh and Hukma alleging therein that there is one Gitwar situated in village Majra (Dubaldhan) and is bounded as under : “East : Blind alley and Gitwar Bhup Singh – 72 Ft. West : Thoroughfare 72 Ft. North: Gitwar Inder Singh – 127 Ft. South: Gitwar Sukh Lal s/o Fakira – 127 Ft.” It was claimed that on 8.6.1979, defendants No.1 and 2 sold the RSA No.1209 of 1984 -2 - said Gitwar to the plaintiff for a sum of Rs.5000/- but the possession could not be delivered because defendant No.3 asserted himself to be owner in possession on the ground of having inherited the same from his great grand- father Mehar Chand and also told the plaintiff that the property in question bears Khasra No.8021 of 1879 settlement. The plaintiff also alleged that he had approached defendants No.1 and 2 and asked them to deliver possession of the Gitwar which has been claimed by defendant No.3 but to no avail. He also averred that he had never knew that the disputed property belongs to defendant No.3 or his predecessor-in-interest. Defendants No.1 and 2 had kept him in dark and intentionally induced the plaintiff to purchase the same by playing fraud, therefore, the plaintiff claimed that he is entitled to the refund of consideration along with interest @ Rupee 1/-per annum. In the prayer, the plaintiff sought decree to the effect that defendants No.1 and 2 be directed to hand over the possession of the suit property or in the alternative return a sum of Rs.5000/- being the consideration of sale deed with interest from the date of filing the suit till the date of payment along with costs. Defendants No.1 and 2 filed joint written statement in which they claimed themselves to be owner of the property in dispute and also admitted its sale to the plaintiff. They denied the ownership of defendant No.3. Defendant No.3 filed separate written statement in which he claimed himself to be the owner on the basis of settlement of 1879. Plaintiff filed replication to the written statement of defendants No.1 and 2 and reiterated his stand taken in the plaint. On the pleadings of the parties, following issues were framed: 1. Whether the defendants No.1 and 2 were the owners in RSA No.1209 of 1984 -3 - possession of the disputed plot? OPP. 2. Whether the plaintiff purchased the disputed plot from defendants No.1 and 2 vide a registered sale deed dated 8.6.1979? OPP. 3. Whether the plot in dispute is a part of Khasra No.8021 of bandobast 1879? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the defendants No.1 and 2 had delivered the possession of the suit property to the plaintiff if so to what effect ? OPD. 7. Whether the suit is bad for mis-joinder of parties ? OPD. 8. Whether the plaintiff is estopped from filing the suit by his act and conduct ? OPD. 9. Relief. The trial Court decreed the suit of the plaintiff holding defendants No.1 and 2 as the owners in possession of the suit property and also that the same has been purchased by the plaintiff from them vide sale deed Ex.P1 and defendant No.3 was not held to be the owner in possession of the suit property as it was held that the same is not part of Khasra No.8021 as per settlement of 1879. Defendant No.3 filed first appeal before the lower Appellate Court which too was dismissed. The lower Appellate Court found as a fact that defendant No.3 has failed to lead any evidence much less Khasra Kishtwar of the settlement of the year 1879 of Khasra No.8021 showing his predecessor-in-interest to be the owners. It was also found that he did not get Khasra No.8021, as per the settlement of the year 1879, located at the RSA No.1209 of 1984 -4 - spot to show that the suit property forms part of said Khasra number. It was also found that he admitted in cross-examination that Khasra number of the suit property in question had changed in the subsequent settlement of the year 1909 then in consolidation proceedings in the year 1974 and has failed to mention the Khasra number of the property as per the above two settlements. He also did not produce jamabandi etc. to show that the suit property bearing particular Khasra number is recorded in the ownership of defendant No.3 Hukma or his ancestors. The first Appellate Court had found that onus of issue No.3 was on defendant No.3 which he has miserably failed to discharge and prove that the plot in question formed part of Khasra No.8021 recorded in the ownership of his ancestors in the settlement of 1879. In the present appeal, Mr.C.B.Kaushik, Advocate for the appellant has raised the solitary ground referring to para No.5 of the plaint that the plaintiff has himself stated that he never knew that the property in dispute bears Khasra No.8021 or which belongs to defendant No.3 or his predecessor-in-interest and defendants No.1 and 2 has played fraud upon him. It was also highlighted by him that plaintiff has claimed refund of the consideration amount which he is ready to pay. Counsel for the appellant on the strength of the pleadings, has claimed that the following questions of law are involved in this appeal: 1. Whether the finding recorded by the learned Courts below for delivery of possession are contrary to the pleadings and evidence on the file? 2. Whether the relief of possession of suit property can be granted to the plaintiff-respondent ? 3. Whether the relief of recovery of Rs.5,000/- with interest as claimed by the plaintiff-respondent can only be granted by RSA No.1209 of 1984 -5 - the learned Courts below? 4. Whether the decree passed by the learned Courts below are sustainable in law ? Repelling the arguments of the counsel for the appellant, counsel for the respondents has argued that the plaintiff though, has made the above averments made in para 5 of the plaint but that was only in alternative as it is apparent from the prayer clause of the plaint contained in Para No.9, which reads as follows : “That the plaintiffs prays for a decree to the effect that the defendants No.1 and 2 be directed to hand over the possession of the suit property mentioned in para No.1 of the plaint from defendant No.3 to the plaintiff or Rs.5000/- being the consideration of the sale deed of the defendant as mentioned in para No.2 of the plaint be passed in favour of the defendants No.1 and 2 along with interest from date of suit to that of payment along with costs.” I have heard counsel for the parties and have perused the record. The argument raised by counsel for the appellant though, appears to be attractive but has no substance in view of the averments made in Para 9 of the plaint in which the plaintiff has made alternative prayer of the refund of Rs.5000/-. The plaint though, has not been happily worded but sum and substance of the prayer is that the plaintiff has claimed possession of the property which has been sold by defendants No.1 and 2 to him, therefore, the Courts below have rightly decreed the suit of the plaintiff as defendant No.3 has failed to prove his ownership over the land in question. RSA No.1209 of 1984 -6 - The questions of law which have been asserted by the counsel for the appellant and have been reproduced here-in-above, do not arise in the present case in view of firm finding of fact. Therefore, the appeal being devoid of any merit, is dismissed, however, the parties are left to bear their own costs. (Rakesh Kumar Jain) ..3.2008 Judge Meenu