RSA No. 2292 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2292 of 2008(O&M) Decided on : 22-01-2009 Jagdish Singh ....Appellant VERSUS Dilbagh Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. S.K.Mahajan, Advocate for the appellant. MAHESH GROVER, J C.M.No. 6849-C of 2008 For the reasons mentioned in the application, delay of 154 days in refiling the appeal is condoned. RSA No. 2292 of 2008 This is a plaintiff's appeal against the judgments of the learned Trial Court dated 8.4.2005 and the First Appellate Court dated 1.6.2007. The plaintiff-appellant filed a suit for declaration claiming that he is joint owner to the extent of 16 kanals 5 Marlas i.e. land measuring 14 kanals 13 Marlas being 1/4th share in the total holding measuring 58 kanals 12 Marlas and land measuring 1 kanal 12 marlas being 1/8th share out of the total land measuring 13 kanals 1 Marla. It was pleaded that earlier Dalip Singh, father of the appellant and respondents no. 4 and 5 and husband of respondent no.3 was the owner of the entire land measuring 13 kanals 1 Marla and after his death, appellant alongwith other respondents inherited his estate. It was pleaded by him that he is also in possession of land measuring 3 kanals 3 Marlas being 1/3 share of land measuring 9 kanals 8 RSA No. 2292 of 2008(O&M) 2 Marlas being a tenant. He pleaded that the entire share of Dalip Singh, his father still continues to be joint and no one is in possession of specific khasra number. Therefore, sale deed dated 16.9.95 executed by Ravail Kaur of her share in favour of respondents no. 1 and 2 in collusion with them is illegal, null and void. It was next contended that Ravail Kaur was not owner of the land which was earlier owned by Beant Singh and now by Piara Singh s/o Beant Singh. She was not even a tenant and she has no right to execute the sale deed. Respondents no. 1 to 5 filed a joint written statement in which they denied the allegations made by the appellant. It is pleaded that the earlier suit has been filed by plaintiff-appellant which has been dismissed as withdrawn. However, the ownership of the plaintiff-appellant to the extent of 1/4th share of the land measuring 58 kanals 12 Marlas was not denied. The execution of the sale deed dated 16.9.95 was also not denied. It was rather pleaded that the sale made by respondent no.3 in favour of respondents no. 1 and 2 was legal and valid as the land was in her exclusive possession on the basis of partition. The possession of the appellant over any portion of land measuring 9 kanals 9 Marlas was denied. It was pleaded that Ravail Kaur, respondent no.3 was in possession of this land as owner of the land and therefore, the sale deed which was executed was perfectly valid. The inheritance of tenancy rights over this land measuring 9 kanals 9 Marlas was also denied. It was pleaded that there was no joint khata among the parties and the land stood partitioned. Respondent no.6 and 7 filed their own written statement jointly. It was pleaded that land measuring 13 kanals 1 Marlas which has been detailed in sub para B of the head note of the plaint stood partitioned RSA No. 2292 of 2008(O&M) 3 between appellant and the respondent nos. 3 to 5. The plea of the appellant of joint possession of land measuring 13 Kanals 1 Marla have been denied and the partition has been pleaded which allegedly took place on the orders of Assistant Collector Ist Grade, Amritsar vide his order dated 12.9.85. It was pleaded that the allegation made in the suit was without any merit. In the replication, the appellant did not deny the factum of partition. Parties went to learned Trial Court on the following issues:- 1. Whether plaintiff is entitled to declaration to the effect that he is joint owner in possession of land in dispute as detailed in heading of the plaint? OPP. 2. Whether the plaintiff is entitled to injunction as prayed for ? OPP. 3. Whether the suit of plaintiff is not maintainable ? OPD. 4. Whether this Court has no territorial jurisdiction to entertain and try present suit? OPD. 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether suit is properly valued for purposes of court fee and jurisdiction? OPP. 7. Whether the suit is collusive between plaintiff and defendants no. 3, 4 and 5. If so, its effect? OPD no. 6 and 7. 8. Relief. The learned Trial Court thereafter partly decreed the suit of the appellant in his favour by observing that the land measuring 2 kanals and 15 Marlas comprised in Khasra No. 10//22/2(2-4), 13//2/1/2(0-11) of Khata no. 1134/1819 mentioned in head note (b) of plaint is still joint between the RSA No. 2292 of 2008(O&M) 4 appellant and the respondents no. 1, 2, 4 and 5 in which appellant, respondent no. 4 and 5 have 1/4th share each and respondent no. 1 and 2 have 1/8th share each and the land measuring 9 Kanals 9 Marlas as fully detailed in the head note (c ) of the plaint is under the joint tenancy of appellant and respondents no. 1, 2, 4 and 5. The suit of the appellant with regard to the land measuring 10 Kanals 6 Marlas comprised in Khasra No. 10//19/3(4-2), 22/1(5-16), 52//2/1(0-8) was dismissed. In appeal, the findings of the trial Court were affirmed. Hence, this appeal. Learned counsel for the appellant has assailed the findings of the Courts below to contend that they have been arrived at by misreading of evidence and, therefore, the perverse and are liable to be set aside. I have thoughfully considered the contention of the learned counsel for the appellant. A perusal of the impugned judgments shows that the plaintiff- appellant had claimed mutifarious reliefs. He claimed that land measuring 58 kanals 12 marlas was owned by Dalip Singh, who died intestate and after his death, the said property devolved upon his legal heirs i.e. the plaintiff and respondent nos. 3 to 5. On record is Exhibit P6 as against which there is no other evidence which reflects the plaintiff-appellant and respondent nos. 3 to 5 are legal heirs of Dalip Singh and are having 1/4th share each. In this view of the matter, there is no evidence to hold that the findings of the Courts below to that effect are wrong. In so far as the claim of the appellant qua land measuring 13 kanals 1 marlas and his plea regarding the partition thereof are concerned, it is apparent from order dated 12.4.1985 passed by the Assistant Collector Ist RSA No. 2292 of 2008(O&M) 5 Grade, Amritsar that land measuring 10 kanals 6 marlas went to the father of respondent nos. 6 and 7 and if this land is extracted from the total land of 13 kanals 1 marla as claimed by the appellant, it means that 2 kanal 15 marlas still remain joined between the appellant and respondent nos. 1, 3, 4 and 5. This finding cannot be faulted with because of the material on record and in the absence of any evidence to the contrary, the same necessarily has to be affirmed. Further, the appellant has failed to substantiate that he was having 1/8th share in this piece of land. As regards the third aspect of the matter, it was pleaded by the appellant that his father-Dalip Singh was in possession as a tenant of land measuring 6 kanals 16 marlas out of land measuring 9 kanals 9 marlas and after his death, mutation no. 3860 was sanctioned in his favour and that of respondent nos. 3 to 5 in equal shares. However, that plea is also not substantiated as in the column of cultivation in the revenue record pertaining to the years 1984-85 and 1989-90, the name of Ravail Kaur finds mention and she is said to have executed a sale deed in favour of respondent nos. 1 and 2. These are the findings of fact, which have been recorded by the Court below and the same do not warrant any interference. No question of law, much less a substantial question of law, arises for consideration in this appeal which is dismissed. January 22 , 2009 (Mahesh Grover) rekha Judge