RSA No.1012 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1012 of 2010(O & M) Date of Decision:10.03.2010 Ishar Singh .... appellant Versus Hardev Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Pritam Saini, Advocate for the appellant **** RAKESH KUMAR GARG J.: By way of present appeal, defendant No.1 has approached this Court challenging the judgment and decrees of the courts below whereby suit of plaintiffs(respondent Nos.1 to 6) for possession has been decreed. Plaintiffs-respondents filed the present suit on the averments that they were owners of the suit land and prior to them their father was the owner of the suit land. The suit land was mortgaged by the predecessor-in-interest of the plaintiffs with one Munshi Ram. The suit land was got redeemed by their father after paying the mortgage money to the mortgagee and the physical possession was delivered to their father. Mutation No.2152 was also sanctioned in favour of their father regarding redemption of the suit land. However, during the period of mortgage some stray entry of possession in the column was entered in the name of defendants(i.e.appellant) as well as predecessor-in-interest of respondent Nos.7 to 15 concerning the suit land. Afterwards, the aforesaid entries were corrected. It was further averred that the plaintiffs were in physical RSA No.1012 of 2010 2 possession of the suit land as owners but on 27.05.2001 in the absence of plaintiffs the defendants forcibly took possession of the suit land. The plaintiffs requested the defendants to restore the possession of the suit land but the defendants refused. Thus the possession of the defendants over the suit land was unauthorized. Hence the suit for possession of the suit land. Upon notice, defendants filed written statement taking preliminary objections including that another suit titled as 'Ishar Singh etc.vs.Sukhdev Singh' had already been filed by them concerning the suit land. On merits, it was submitted that the suit land was cultivated on 1/3rd batai since lifetime of Pritam Singh father of the defendants and after the death of Pritam Singh the suit land had fallen to the share of the defendants in a family settlement and since then they were in cultivating possession of the suit land on 1/3rd batai which was being paid to the landlord/owner. It was further submitted that in the month of May 1995, from the copies of khasra girdawari it was found that the land stands in the ownership and cultivation column in the name of plaintiffs and the name of the father of defendants do not exist in the revenue record. It was averred that the entries in the revenue record were changed by playing fraud upon the defendants. It was also submitted that the suit land was neither got redeemed by the father of the plaintiffs nor the possession was delivered to him. The entries in the revenue record regarding redemption of mortgage were not correct. While making the change in khasra girdawari proper procedure was not followed as no notice was given to the defendants who were in possession of the suit land. It was further submitted that Pritam Singh, father of the defendants was in cultivating possession as tenant on 1/3rd batai since 1950 and after his death the defendants were in possession as tenants on 1/3rd batai under the plaintiffs and were paying the batai regularly. It was further submitted that possession of the RSA No.1012 of 2010 3 defendants of the suit land was legal, continuous, without any interruption, peaceful and within the knowledge of the plaintiffs since the very beginning and now the possession has ripened into ownership of the defendants. Denying the other averments contained in the plaint, defendants prayed for dismissal of the suit. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiffs are owners of suit land as alleged? OPP 2. Whether the defendants have taken forcibly and illegally possession of suit land from the plaintiff as alleged?OPP 3. If issue No.1 and 2 proved, whether plaintiffs are entitled to possession of suit land as alleged?OPP 4. Whether the suit is bad for non-joinder and mis-joinder of necessary party?OPD 5. Whether the plaintiffs have not filed proper court fees as alleged?OPD 6. Whether the plaintiffs have no locus standi to file and maintain the present suit?OPD 7. Whether the suit of the plaintiff is not maintainable in the present form?OPD 8. Whether the plaintiffs are stopped from filing the suit by their own act and conduct?OPD 9. Whether the plaintiffs have not come to the court with clean hand?OPD 10.Whether the suit is time barred?OPD 11.Whether the plaintiffs have no cause of action to file and maintain the present suit?OPD 12.Whether the plailntiffs have not complied with the provisions of Order 7 Rule 1 CPC? OPD 13.Whether the plaint has not been duly verified?OPD 14.Whether the civil Court has no jurisdiction to try and entertain the present suit?OPD 15.Relief. RSA No.1012 of 2010 4 Parties led evidence in support of their respective claims. After hearing both the sides, the trial Court decided issues No.1 to 3 in favour of the plaintiffs, whereas issues No. 4 to 12 were decided against the defendants and resultantly the trial Court decreed the suit with costs vide impugned judgment and decree dated 10.04.2009. Feeling aggrieved with the aforesaid judgment and decree, the defendants filed an appeal before the Lower Appellate Court which was also dismissed. Still not satisfied, appellants have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether the revenue entries in the revenue record can be changed without the order passed by any competent authority? 2. Whether the revenue entries changed at the back of the appellants with the connivance of Patwari are binding upon the appellant? 3. Whether the mutation sanctioned in favour of the defendants confer any title upon the defendants? 4. Whether oral evidence can be preferred over the documentary evidence in favour of the appellants? From the pleadings of the parties, it may be noticed that on the one hand, the appellants are claiming to be tenant on payment of 1/3rd batai and on the other hand the appellants have claimed that their possession has ripened into ownership. It may also be noticed that as per the pleadings, Pritam Singh father of the defendants was in cultivating possession of the suit land on payment of 1/3rd batai since 1950 and after his death appellants were in possession of the suit land as tenants on payment of 1/3rd batai under the plaintiffs and they were paying the batai RSA No.1012 of 2010 5 regularly. However, the stand taken by the appellants is not supported by any evidence on record. Rather PW2 Ishar Singh has stated in his cross examination that his father used to give batai to Munshi ram i.e.mortgagee and they gave the batai in the year 1980 for the last time. The aforesaid statement of the defendant is contrary to their pleadings. Even there is no evidence on record to the effect that Pritam Singh father of the appellants was in cultivating possession of the suit land since 1950. The appellants have also taken a stand that the suit land was never got redeemed by the father of the plaintiffs. However, mutation No.2152 Ex.P-4 clearly establishes that said land was got redeemed by Ajmer Singh. There is no evidence on record to controvert the aforesaid documentary evidence. No doubt that mutation does not confer title but these entries certainly depict the factum of possession which remained uncontroverted. In fact the onus was upon the appellants to prove that they were in posession of the suit land on 1/3rd batai but there is not an iota of evidence to this effect. Moreover, there is no evidence on file as to when and in what capacity defendants came in possession of the suit land. Defendants claiming to be tenants paying 1/3 batai on one hand and on the other hand they had claimed that their possession had ripened into ownership. Thus, the appellants cannot be allowed to take contradictory stand. Both the courts below have recorded a finding of fact that neither it has been proved that appellants were in possession of the suit land as tenant on 1/3 batai nor the appellants have proved on file that they were in possession on the basis of adverse possession. Moreover, the courts below on appreciation of evidence have recorded a concurrent finding of fact with regard to the possession of the parties which is essentially a question of fact. It is not a case where there is no evidence to support the RSA No.1012 of 2010 6 findings of the courts below. Neither learned counsel for the appellant was able to find fault with the findings so recorded by the courts below. In these circumstances, it cannot be held that the judgment and decrees of the courts below are liable to be set aside being perverse. No other argument was raised. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 10.03.2010 neenu