IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1563 of 2007 DATE OF DECISION: 20th May, 2008 Balwan Singh and others .....Appellants versus Rajender Singh and others .....Respondents CORAM:- HON'BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Rameshwar Malik, Advocate for the appellants Mr.Kulvir Narwal, Advocate for the respondents .. NIRMAL YADAV, J. This appeal is directed against the judgment and decree dated 15.2.2007 passed by learned Additional District Judge, Rohtak vide which judgment and decree dated 20.1.1993 passed by Sub Judge Ist class, Rohtak decreeing the suit of the plaintiff for possession of 46/73 share of land comprised in Khewat No.46, Khatoni No.53 situated in Village Seeman as detailed in the plaint, has been reversed. The facts leading to the present controversy are that Jai Lal, father of the plaintiffs sold his ancestral property measuring 3 bighas – 13 biswas, as detailed in para-2 of the amended plaint, to Matu, predecessor-in- interest of the defendants, by executing three sale deeds dated 12.8.1936, 5.5.1937 and 9.6.1938 for Rs.99/- Rs.100/- and Rs.20/-, respectively. The plaintiffs challenged all R.S.A. No.1563 of 2007 - 2 – the three sale deeds executed by their father by filing a suit for possession. The suit was decreed by the then Sub Judge 4th Class, Rohtak vide judgment and decree dated 5.12.1953, Ex.P1, holding that sale deeds dated 5.5.1937 and 9.6.1938 pertaining to land measuring 1 bigha – 15 biswas and 11 biswas, respectively executed by Jai Lal in favour of Matu were without consideration and not binding upon the rights of the plaintiffs. It was further held that plaintiffs, minor sons of Jai Lal, would be entitled to resume possession of the said land after the death of their father Jai Lal. Jai Lal died on 26.12.1984. After his death, the plaintiffs approached the defendants, successors-in-interest of Matu, for handing over possession to them. The defendants finally refused to accede to their request on 23.8.1985 and, therefore, the present suit was filed. The suit was resisted by the defendants mainly, on the ground that it was not clear from the plaint as to which land was sold by the predecessor-in-interest of the plaintiffs to their predecessor-in-interest and thus, the pleadings are vague. According to defendants, they had been in possession of the land since the time of their forefathers. They also took various preliminary objections regarding limitation, maintainability of the suit and adverse possession. On the basis of pleadings of the parties, the trial Court settled the following issues:- R.S.A. No.1563 of 2007 - 3 – “1. Whether judgment and decree dated 5.12.53 passed by the civil Court is not binding upon the rights of the defendants? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is time barred? OPD 4. Whether the defendants are in possession of the suit land for the last about 50 years and have become the owners of the suit land by way of adverse possession? OPD. 5. Whether the suit is bad on account of non- joinder of necessary parties? OPD. 6. Relief.” The trial Court decreed the suit holding that the judgment and decree dated 5.12.1953 is binding upon the defendants, who inherited the suit land after the death of their father Dharma, who had inherited the same from the original purchaser i.e. Matu, who had initially purchased that land from the father of the plaintiffs without consideration. It was further held that the sale effected in favour of Matu would not affect the rights of the plaintiffs, who were entitled to resume possession of the suit property after the death of their father Jai Lal. The appellate Court, however, reversed the findings of the trial Court observing that the plaintiffs have not been able to co-relate by any cogent evidence that the land R.S.A. No.1563 of 2007 - 4 – mentioned by them is the same which was sold by way of sale deed as mentioned in judgment and decree dated 5.12.1953, Ex.P1. Learned Ist Appellate Court has, of course, held that the judgment and decree dated 5.12.1953 is binding upon the parties, but the plaintiffs are not entitled to possession because they have not been able to co-relate the suit land with the land as mentioned in the aforesaid judgment and decree dated 5.12.1953. After hearing learned counsel for the parties and going through the evidence on record, to my mind, following questions of law arise for consideration in the present appeal:- i) Whether the plaintiffs-appellants are entitled for possession of the land in compliance of judgment and decree dated 5.12.1953, Ex.P1? ii) Whether the appellate court has misread the documentary as well as oral evidence? Learned counsel for the appellants argued that from the Misal Hakiat, Ex.P2 and Jamabandies, Ex.P3 and P-8 for the years 1983-84 and 1959-60, respectively, it is evident that Jai Lal was owner in possession of land measuring 0 bigha – 10 biswas, 1 bigha – 8 biswas and 1 bigha – 15 biswas. He further pointed out that as per mutations, Ex.P13, Ex.P14 and Ex.P15, land measuring 1 bigha – 8 biswas, 1 bigha – 15 biswas and 0 bigha – 11 biswas was sold by Jai Lal to Matu vide sale deeds dated R.S.A. No.1563 of 2007 - 5 – 9.10.1936, 5.4.1937 and 19.4.1938, respectively. Learned counsel further pointed that sale deed dated 12.8.1936 was held to be valid as it was proved to be for consideration. However, two sale deeds pertaining to land measuring 1 bigha – 15 biswas and 0-11 biswas were set aside having been executed without consideration, vide judgment and decree dated 5.12.1953. There appears to be some inadvertent and minor mistakes with regard to description of land in mutation, Ex.P13 and dates of sale deeds in mutations, Ex.P13 to P-15, otherwise, the area and the details of ownership and cultivation are the same as mentioned in judgment and decree dated 5.12.1953, Ex.P1. Learned counsel further argued that in the jamabandi for the year 1959-60, Jai Lal has been shown to be owner in possession. Plaintiff-Ramdhari while appearing as PW2 deposed that as per Misal Hakiat, Ex.P2 and Jamabandi for the year 1983-84, Ex.P3, new numbers have been allotted in lieu of old numbers after consolidation proceedings in the village. Learned counsel further argued that the defendants have not refuted that they are in possession of the land, which was sold by Jai Lal to Matu, vide three sale deeds, as referred to in judgment,Ex.P1 and that the sons of Jai Lal had challenged those sale deeds executed by their father and further the civil Court vide judgment and decree, Ex.P1, has held the two sale deeds to be without consideration and not binding upon the rights of the plaintiffs. In the judgment it was further observed that the plaintiffs would be entitled to resume the possession after the death of their father Jai Lal. It is further R.S.A. No.1563 of 2007 - 6 – argued that the land as mentioned in Jamabandi, Ex.P8 and the land which was sold vide the aforesaid three sale deeds was same i.e. 3 bighas – 13 biswas and after deducting the land measuring 1 bigha – 7 biswas, which was sold vide sale deed dated 12.8.1936, the land which the plaintiffs are entitled to seek possession is 24 Kanals – 4 Marlas. The Ist Appellate Court has, of course, not accepted the plea taken by the plaintiffs merely on the ground that the land mentioned in Ex.P8 is 0 bigha – 10 biswas, 1 bigha – 8 biswas and 1 bigha – 15 biswas, whereas, in the judgment and decree dated 5.12.1953, Ex.P1, the land is 0 bigha – 11 biswas, 1 bigha – 8 biswas and 1 bigha – 15 biswas. So, there is a difference of one biswa in the area of land given in Jamabandi, Ex.P8 and judgment and decree dated 5.12.1953, Ex.P1. It has, therefore, been held that the plaintiffs could not prove that the land which was decreed in their favour vide judgment and decree dated 5.12.1953, Ex.P1 is the same for which they are seeking decree for possession. The view taken by the Ist Appellate Court does not appear to be correct. It is not disputed that Jai Lal, predecessor-in-interest of the plaintiffs had sold total land measuring 3 bighas – 13 biswas to Matu. The plaintiffs challenged all the three sale deeds and the civil Court vide judgment and decree dated 5.12.1953, Ex.P1 held the sale deeds dated 5.5.1937 and 9.6.1938 qua land measuring 1 bigha – 15 biswas and 11 biswas, respectively, to be without consideration. It was further held that the R.S.A. No.1563 of 2007 - 7 – plaintiffs would be entitled to resume possession after the death of their father. However, sale deed dated 12.8.1936 with regard to land measuring 1 bigha – 8 biswas was held to be valid and for consideration and the plaintiffs are not entitled to seek possession of the same. There is no evidence on record to prove that Jai Lal, predecessor-in- interest of the plaintiffs had sold any other land to Matu, predecessor-in-interest of the defendants except the land mentioned above. Mutations were also sanctioned with regard to those sale deeds. Though the dates of execution of the sale deeds have been wrongly mentioned in mutations, Ex.P13 to P-15, but the defendants have not placed any document on record to show that the land mentioned in mutations, Ex.P13 to P-15 is some different land than the land sold by Jai Lal in favour of Matu. As regards the plea of adverse possession, the defendants cannot claim adverse possession against the plaintiffs as the latter could seek possession of the suit property only after the death of their father Jai Lal, as per judgment and decree dated 5.12.1953, Ex.P1. Admittedly, the defendants did not challenge the decree as the same has attained finality. The mere fact that the defendants have been in possession of the suit property for more than 50 years, cannot be a reason to deny the right and title of the plaintiffs over the suit land, which has been conferred on them vide judgment and decree dated 5.12.1953, Ex.P1. The rights of the plaintiffs in the suit property cannot be jeopardized because of the reason that the dates of sale R.S.A. No.1563 of 2007 - 8 – deeds have been wrongly mentioned in the mutations or the plaintiffs could not place on record the old khasra numbers of the land to co-relate them with the new numbers after consolidation. In all the jamabandies, Jai Lal has been shown as right-holder of the disputed property. Accordingly, the appeal is accepted and the judgment and decree passed by the Ist Appellate Court are set aside and that of the trial Court are restored. May 20, 2008 ( NIRMAL YADAV ) pc JUDGE