R.S.A. No. 2001 of 2006 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2001 of 2006 (O&M) Date of Decision : 01.04.2009 Mahesh and others .......... Appellants Versus Ram Parsad ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Ms. Sushma Chopra, Advocate, for the appellants. Mr. C.B. Goel, Advocate, for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 31.3.2006 passed by the learned Courts below vide which the suit filed by the plaintiff/appellants seeking declaration to be owner in possession of the suit property, has been dismissed. The plaintiff brought a suit for declaration to the effect that the plaintiff/appellants were owner in possession of the land measuring 1 kanal 11 marlas situated in the revenue estate of Tehsil Rewari, and further challenged the sale deed dated 12.9.1988 said to have been R.S.A. No. 2001 of 2006 (O&M) -2- executed in favour of the defendant to be null and void. The prayer was also made for permanent injunction to restrain defendant from interfering in the possession of the plaintiffs over the suit land. The plaintiffs claimed that they were owner in possession of the suit property since the time of their forefathers. The ownership was said to have been acquired by way of adverse possession. It was claimed that the sale deed dated 12.9.1988 obtained by defendant from Sat Parkash was illegal and not binding on their rights, as it was based on wrong entries in the revenue record. The suit was contested by the defendant wherein it was denied that the forefathers of the plaintiffs were owner of the suit property. The defendant claimed to be owner in possession of the suit land in pursuance to the sale deed dated 12.9.1988 i.e. (the sale deed under challenge) and mutation sanctioned. It was also pleaded that the plaintiffs or their forefathers had never been in possession of the suit property in any capacity. Averments on merits were also denied by claiming that it was a false story put up by the plaintiff/appellants to grab the property. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the plaintiff is owner in possession over the suit property mentioned in para no. 1 of the plaint. OPP 2. Whether the sale deed dated 12.9.88 is null and void and not effective on the right of the plaintiff? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff is estopped to file the present R.S.A. No. 2001 of 2006 (O&M) -3- suit by his own act and conduct? OPD 5. Whether the suit of the plaintiff is time barred? OPD 6. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD 7. Relief." On the basis of evidence and the pleadings of the parties, the learned trial Court was pleased to hold that the plaintiffs were neither owner nor in possession of the suit property. Sale deed dated 12.9.1988 was said to be legal and bona fide, and further the defendant/respondent was held to be bona fide purchaser for consideration. Issues No. 3 to 6 were decided against the defendant/respondent, as not pressed. The suit was ordered to be dismissed. In appeal, the plaintiff/appellants moved an application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the plaint, to plead therein that the predecessor-in-interest of the plaintiff/appellants were, in fact, occupancy tenants and their tenancy had matured into ownership. They sought amendment of the suit in order to take up additional plea to challenge the sale deed. By way of detailed order, the learned lower appellate Court dismissed the application for amendment of the suit, primarily on the ground that the plaintiffs by way of amendment could not change the very nature of the suti and set up a suit which was contrary to the pleadings in the main suit. Delay in moving the application was also taken as one of the ground for rejection of the application, by holding that amendment sought was well within the knowledge of the plaintiff/appellants when R.S.A. No. 2001 of 2006 (O&M) -4- the suit was filed. Be as it may be, reasons given for rejecting the application for amendment are based on sound settled principles of law, which do not call for any interference The learned counsel for the appellants has, however, challenged the dismissal of the application under Order 6 Rule 17 CPC on the plea that the learned lower appellate Court has taken note of amendment in the CPC to deny the amendment which was otherwise necessary for the just and proper adjudication of the case. This plea cannot be accepted. The learned lower appellate Court has not rejected the application under Order 6 Rule 17 CPC by invoking the amended provisions of Order 6 Rule 17 CPC, but on merits by taking into consideration the suit filed, wherein plea of adverse possession was taken to claim title. The learned lower appellate Court held that plea of adverse possession amounted to admission of ownership by defendant/respondent. No fault can be found with the order passed by the learned lower appellate Court in rejecting the application under Order 6 Rule 17 CPC. It is pertinent to notice that the plaintiff/appellants along with this appeal have moved C.M. No.1199-C of 2009, under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence. It is averred in the application that by way of additional evidence, the plaintiff/appellants want to produce on record the certified copies of three judgments passed by Civil Courts at different times, to prove the fact that Munshi Lal father of Rati Ram was, in fact, not an adopted son as claimed. It is claimed that in view of judgments sought to R.S.A. No. 2001 of 2006 (O&M) -5- be placed on record by way of additional evidence, it would stand proved that sale deed under challenge did not pass any title to defendant/respondent It may be noticed that the first judgment sought to be produced by way of additional evidence, is in the suit filed by Lala Bishambar Dayal etc. Vs. Lala Munshi Lal for possession of portion of the part of the property in which he claimed his ownership. The suit filed by Lala Bishambar Dayal was dismissed in favour of Lala Munshi Lal. Thus, the decree having been passed in favour of Lala Munshi Lal could not operate as final adjudication, about the findings recorded against him qua adoption to non-suit the defendant/respondent, as contended. The second judgment, sought to be produced by way of additional evidence is the suit filed by Usha Devi and another against Punjab Wakf Board and others, in which the suit for possession filed by Usha Devi and Tarun Kumar against Punjab Wakf Board was ordered to be dismissed. This judgment, therefore, would again have no relevance to the Rights of Rati Ram, as he was neither a party to the suit nor was concerned with the dispute raised herein. The third suit is by Bishan Dass and another against Municipal Council, Rewari, seeking declaration with consequential relief of permanent injunction from any interference in peaceful possession of the property in question. The said suit was also dismissed. It would be seen that evidence sought to be produced by way of additional evidence cannot be said to be necessary for just and proper adjudication of the case. Consequently, the application under Order 41 Rule 27 CPC is ordered to be dismissed. R.S.A. No. 2001 of 2006 (O&M) -6- The learned counsel for the appellants contended that this appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the learned Courts below is outcome of misreading of documentary as well as oral evidence on record, thus, perverse?" 2. Whether the learned Courts below erred in law in placing reliance on revenue record in preference to the evidence on record in the suit to prove the ownership?" In support of the substantial questions of law, the learned counsel for the appellants contends that once it was proved on record that the revenue entry was changed in favour of the predecessor-in- interest of the defendant/respondent without notice to the plaintiffs or the previous owner, it could not be relied upon to non-suit the plaintiffs. The evidence on record shows that the predecessors of plaintiffs were owner in possession of the suit property, in the revenue record which was changed without notice. The plea of the learned counsel for the appellants cannot be accepted. It may be noticed that the plea raised by the plaintiffs was that they were owner in possession of the property by way of adverse possession, and that the learned Courts below have committed no error in taking note of the revenue record, to record a finding that the plaintiff/appellants have failed to prove their ownerhsip by way of adverse possession. The learned Courts below held that Rati Ram was shown to be in possession in pursuance to the sale deed. The learned Courts below rightly held that the defendant/respondent was bona fide purchaser for R.S.A. No. 2001 of 2006 (O&M) -7- consideration, having purchased the property after satisfying about the title of his vendor, as depicted in revenue record. Even in case, there was any defect in the title, the same could not be ground to set aside the sale deed, as contended, when the plaintiff/appellants failed to prove their adverse possession, or any title or possession. The contention of the learned counsel for the appellants in support of the substantial questions of law, that judgment and decree impugned is outcome of misreading of evidence, thus, perverse or that revenue entry has been given preference to other evidence on record, deserves to be rejected. There is no merit in this appeal, the same is ordered to be dismissed in limine. ( Vinod K. Sharma ) Judge April 1, 2009 R.S.