RSA No. 1398 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 1398 of 2007 Date of Decision : 3.2.2009 Jagroop Singh & others. .......... Appellants Versus Jang Singh & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Palli, Sr. Advocate with Mr. Parminder Singh, Advocate for the appellants. Mr. Anil Kumar Garg, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 13.12.2004 and 25.1.2007 passed by the learned Courts below vide which suit filed by the plaintiffs-respondent for declaration and permanent injunction has been decreed. The respondents-plaintiff filed a suit for declaration and permanent injunction on the averments that the land measuring 46 bighas 11 biswas was owned and possessed by Lab Singh, Teja Singh and Nihal Singh, who out of 45 bigha 3 biswa land, sold land measuring 20 bigha 1 biswa 10 biswasi to plaintiff, 10 bigha 0 Biswa 13 Biswasi to defendant No.1 and 15 bigha 1 biswas to Smt. Balbir Kaur through a registered sale RSA No. 1398 of 2007 2 deed dated 30.5.1958. Defendant No.1 got mutation sanctioned to the tune of 1/3rd share out of 45 bighas 3 biswas in favour of defendant No.3, in connivance with the revenue officials, which was against law and facts. The defendants were now threatening to alienate more than their share out of the suit land for which they had no right as defendant No.1 was having only 10 bighas 0 biswa 10 biswasi land. The suit was contested on the plea that Labh Singh etc. sold the land measuring 45 bighas 3 biswas to Sarwan Singh plaintiff, Karnail Singh defendant No.1 and Balbir Kaur in equal shares through registered sale deed No. 847 dated 30.5.1958 and mutation of sale was sanctioned on 12.1.1959. It was also the case of the defendants that since then defendant No.1 is owner in possession of 1/3rd share in the disputed land, without any interruption and that defendant No.1 has become owner in possession by way of adverse possession. The other allegations on merit were also denied. It was also claimed that suit was not maintainable in the present form and the suit was time barred. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiff is entitled for declaration as prayed for ? OPP 2. Whether the mutation No. 920 is null and void and against law having no effect on the rights of the plaintiffs ? OPP 3. Whether the plaintiff is entitled for injunction as prayed for ? OPP RSA No. 1398 of 2007 3 4. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 5. Whether the suit of the plaintiff is time barred ?OPD 6. Whether the plaintiff has no cause of action to file the present suit ? OPD 7. Whether the suit of the plaintiff is false and frivolous ? OPD 8. Relief.” The parties led evidence in support of their respective stands. The learned trial Court decided issues No. 1, 2, 3 & 5 together and it was held that in view of the registered sale deed placed on record the plaintiffs were entitled to declaration, the mutation No. 920 was held to be null and void and against law and having no effect on the rights of the plaintiffs. Issue No.3 was also decided in favour of the plaintiff/ respondents and it was held that the plaintiffs/ respondents were entitled to injunction as prayed. It was also held on issue No.5 that the suit was not time barred. Issues No. 4, 6 & 7 were decided against the defendants- appellant having been not pressed. Consequently, the suit was decreed. In appeal the findings recorded by the learned trial Court were affirmed. In appeal, the finding of the learned trial Court was challenged only on issue No.5, on the plea that mutation was sanctioned in the year 1959 whereas the suit was filed in the year 2000 i.e. beyond three years and, RSA No. 1398 of 2007 4 thus, the same was barred by time. In support of this contention the reliance was placed on the judgments of this Court in the cases of Smt. Sharifan alias Shanti Vs. Ibrahim alias Dharam Vir 1975 PLJ 293 and Devinder Kaur Vs. Manmohan Singh 1991 PLJ 539. It may be noticed that the judgment in the case of Smt. Sharifan alias Shanti Vs. Ibrahim alias Dharam Vir (supra) was reversed in the year 1979 by the Hon'ble Division Bench of this Court in the case of Ibrahim alias Dharam Vir Vs. Smt. Sharifan alias Shanti 1979 PLJ 469. The learned lower appellate Court held that the mutation was wrongly sanctioned as it was contrary to the sale deed executed in favour of the parties, thus, it was held to be void. It was held that subsequent entries in the jamabandis having been made on the basis of wrong mutation did not confer any title on defendant No.1. The Court also held that as plaintiff- respondent alleged that defendant-appellants threatened to alienate land more than his share about a week prior to filing of suit, the same could not be said to be barred by limitation. Mr. Arun Palli, learned senior counsel appearing on behalf of the appellant contended that this appeal raises the following substantial question of law :- Whether the judgments and decree passed by the learned Courts below are perverse in holding that suit was within limitation and that the finding recorded by the learned Courts below are outcome of misreading of the evidence brought on record ? In support of the substantial question of law the learned senior RSA No. 1398 of 2007 5 counsel appearing on behalf of the appellants referred to the judgment of this Court in the case of Ibrahim alias Dharam Vir Vs. Smt. Sharifan alias Shanti (supra) to contend that though the judgment of the Hon'ble Single Bench stood reversed by the Hon'ble Division Bench of this Court but the reason for such reversal was that in the said case cause of action was taken to have arisen to the plaintiff only in April, 1959 when the defendants threatened to take possession forcibly from the plaintiffs. According to the learned senior counsel for the appellants the position is different in the present case, as it was admitted case of the parties that each of the vendee came in possession of their 1/3rd share in pursuance to the mutation which was sanctioned in presence of plaintiffs-respondent. Therefore, the cause of action in the present case arose on the date of sanctioning of mutation, thus, the suit was barred by limitation. The finding on issue No.5 by the learned Courts below is perverse and outcome of misreading of evidence brought on record. The learned senior counsel appearing on behalf of the appellants also placed reliance on the judgment of this Court in the case of Devinder Kaur Vs. Manmohan Singh (supra) to contend that the cause of action to the plaintiff arose for the first time when he was not shown to be exclusive owner of the suit property and, therefore, it has to be held that the cause of action arose to the plaintiff in the year 1959. However, this contention of the learned senior counsel for the appellants cannot be accepted. It is not in dispute that the parties were shown to be in joint possession as co-sharer. Therefore, it could not be said RSA No. 1398 of 2007 6 that any time the right of the appellants was under threat. It is settled law that the mutation does not confer title and mere sanctioning of mutation could not be said to have ousted the ownership of the plaintiffs / respondent, as is sought to be contended. The plaintiffs-respondent, therefore, continued to be owner in possession as the possession of co-sharer is on behalf of all. The learned senior counsel for the appellants thereafter referred to the judgment of this Court in the case of Lehna Singh & Others Vs. Ram Singh & Others 1982 All India Land Laws Reporter 164 to contend that limitation for suit for a declaration claiming to be owner by a person not in possession alleging wrong entry in the revenue record is to start when the wrong entry is made in the revenue record. However, this plea is also misconceived as the plaintiffs-respondent continued to be in possession as co-sharers and, thus, the authority relied has no application to the facts of this case. Mr. Anil Kumar Garg, learned counsel appearing on behalf of the respondents No. 1 to 6 supported the judgments and decree passed by the learned Courts below and contended that once the sale deed was proved on record showing that the plaintiffs-respondent were owners of 20 bighas 1 biswas 10 biswasi, the wrong entry in the revenue record could not oust their ownership and plaintiff/ respondents were entitled to maintain the suit for declaration when their right was threatened. The learned counsel for the respondents No. 1 to 6, in support of the contention placed reliance on the judgment of the Hon'ble Supreme RSA No. 1398 of 2007 7 Court in the case of Jattu Ram Vs. Hakam Singh and others AIR 1994 Supreme Court 1563 to contend that the entries in the revenue record are only for fiscal purpose and do not create any title. The plaintiff-respondents in fact filed a suit for declaration that they were owners of the land in pursuance to the sale deed and that the revenue entries were illegal, null and void and do not affect his right. The suit in fact was not to challenge the entry of mutation in the year 1959 to attract Article 58 of the Limitation Act as is contended by the learned senior counsel for the appellant. The findings recorded by the learned Courts below are thus based on the evidence brought on record and cannot be said to be perverse or outcome of misreading of evidence, so the suit could be said to be barred by limitation. The substantial question of law framed is answered against the appellant and the appeal is ordered to be dismissed being without any merit in limine. 3.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE