R.S.A. No. 3652 of 2009 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3652 of 2009 (O&M) Date of Decision: November 17, 2009 Jai Narayan …..Appellant Vs. Devi Sahay and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Avnish Mittal, Advocate for the appellant. -.- M.M.S. BEDI, J. (ORAL) Suit of the plaintiff- appellant for declaration that he is owner in possession of the suit land measuring 2 kanals 10 marls and that the defendants have no right or concern with the same, stands dismissed by the Courts bellow. The plaintiff had taken up the plea in the plaint that he has been owner in possession of 22 kanals 8 marlas of land and he had constructed a well in Khasra No. 38 (4 bigha 12 biswa) in 5 biswa land which was not in running condition since the time of consolidation. The R.S.A. No. 3652 of 2009 (O&M) [2] predecessor-in-interest of defendant –respondents and defendant Devi Sahay had entered their names in the revenue record in respect of suit land on the basis of mutation No. 108 dated November 13, 1960 whereas the said persons did not have any concern with the suit land. He clamed that he had never transferred the land in the name of said persons and never made any statement before the revenue officer. The defendant- respondents have taken up a plea that the predecessor-in-interest of the defendants were owners in possession of the land in dispute prior to 1950 and that the value of the well which was situated in 5 biswas of the land was less than Rs.100/-. Matadeen, Shree Ram and Devi Sahay had agreed to spend money on the renovation of the well and plaintiff had agreed to give 1/3rd share to Matadeen and Shree Ram and remaining 1/3rd share to Devi Sahay. Plaintiff himself had appeared before the revenue officer in presence of Lambardar and the suit land was transferred in favour of Matadeen, Shree Ram and Devi Sahay. The mutation was sanctioned on the statement of the plaintiff- appellant. It was clarified in the written statement that at the time of consolidation the government had allotted 2 kanals 10 marls of land for well in place of 5 biswas of land. The plaintiff had not raised any objection at that time also. On the basis of the evidence produced by the both the parties, the Courts below have arrived at a conclusion that the plea taken by the defendant- respondents regarding the entry of mutation with the consent of plaintiff- appellant was correct. The suit was dismissed inter-alia on the ground that mutation No. 108 Ex.P.12 had been challenged after a period of 40 years of execution of mutation as such the suit of the plaintiff- appellant R.S.A. No. 3652 of 2009 (O&M) [3] was dismissed. Counsel for the appellant has vehemently contended that the ownership of the plaintiff- appellant has been impliedly admitted by the defendant- respondents while they raise the plea of adverse possession, which plea can be taken only against true owner of a property. He has contended that the Courts below have wrongly held that the claim of the plaintiff- appellant is barred by time because the mutation challenged by the plaintiff- appellant does not confer any title as per law, therefore, the approach of the Courts below in dismissing the suit challenging the mutation was not actually barred by time. He placed reliance on Manti and others Vs. Sarwati Devi and others, 2004 (1) PLR 397. I have gone through the facts and circumstances of that case. In the said case, the parties were admittedly in joint possession. The shares had not been separated. The revenue entries were challenged by the plaintiff. It was held in the said case that a party can choose to ignore the mutation proceedings till a real threat to title is apprehended by a person challenging the mutation. In para 11 of the said judgment it is specifically observed in that case that there was no serious dispute about the substantive rights of the parties. In the present case, a concurrent finding of fact has been arrived at by the Courts below that the mutation challenged by the plaintiff had been entered on the basis of the statement made by the plaintiff- appellant in presence of revenue officer and that the consolidation department had allowed 2 kanals 10 marls of land for well in place of original 5 biswas of land. R.S.A. No. 3652 of 2009 (O&M) [4] I have also considered the contention of counsel for the appellant that by implied admission of the defendant by raising a plea of adverse possession, the appellant should be deemed to be the true owner of the property. The plaintiff- appellant had filed the suit for injunction on the basis of title which he failed to establish. A party to a case is required to establish his case on the strength of the pleadings and evidence and not on the basis of the weakness of the other party as such I do not find any force in the said contention of the counsel for the appellant. In view of above circumstances, there is no ground for interference in the concurrent finding of fact. The ratio of the judgment of Manti’s case (supra), for the reasons mentioned hereinabove is not applicable to the facts of the case. Dismissed. November 17, 2009 (M.M.S.BEDI) sanjay JUDGE