R.S.A.No.1111 of 1997 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.1111 of 1997(O&M) Date of decision: 29.3.2011 Mam Raj @ Mam Chand through LRs and another ......Appellants Versus Pritam Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.K.Chhibber, Sr.Advocate and Mr.Lalit Thakur, Advocate for the appellants. Mr. R.M.SinghAdvocate for respondent. **** SABINA, J. Plaintiff had filed a suit for declaration with consequential relief of joint possession. The case of the plaintiff, in brief, was that the land measuring 6 kanals 0 marla bearing khasra No. 44 (old khasra No.1055) was owned by the plaintiff and defendant No.1. The pedigree table as shown in para 2 of the plaint is as under:- Nathu | | Kashmiri Lal Teja | | Pritam Lal (plaintiff Mam Raj @ Mam Chand (defendant) R.S.A.No.1111 of 1997 (O&M) 2 Mansi was married to Teja and from the said wedlock, defendant was born. After the death of Teja, Mansi was married to kashmiri through kreva ceremony. Plaintiff was born to Kashmiri and Mansi. After the death of Teja, Kashmiri started cultivating the suit land on his own behalf and on behalf of Mam Raj. Kashmiri lost his eye sight on account of old age. Mam Raj took advantage of the blindness of Kashmiri and tender age of the plaintiff and got the revenue entries made in his favour. During the pendency of the suit, defendant No.1 suffered a decree in civil suit No.266 of 1991 titled Jai Parkash vs. Mam Raj and others on 1.4.1991. The said decree was not binding on the rights of the plaintiff. Defendants in their written statement denied the contentions in the plaint. It was averred that defendant No.1 was the owner of the suit land and the answering defendants were in cultivating possession of the suit land. Teja, father of defendant No.1, was in possession of the suit land much prior to 26.1.1950. Kashmiri was never in possession of the suit property. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner to the extent of ½ share in the suit land? OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to the relief of joint possession to the extent of ½ share in the suit land OPP 3. Whether the plaintiff is estopped by his own act and conduct from filing the suit ? OPD 4. Whether the plaintiff has no locus standi to file the R.S.A.No.1111 of 1997 (O&M) 3 suit ? OPD 5. Whether the suit is not maintainable in the present form ? OPD 6. Whether the suit is bad for mis-joinder and non joinder of necessary parties ? OPD 7. Whether the suit is barred by limitation ? OPD 8. Whether plaintiff has no cause of action? OPD 9. Whether the plaintiff has concealed true and material facts from the Court ? OPD 10.Relief.” The Civil Judge (Jr.Divn.) vide judgment and decree dated 16.2.1996 decreed the suit of the plaintiff and held that the plaintiff was co-sharer/ co-owner to the extent of half share in the suit property. The plaintiff was also granted the consequential relief of symbolic joint possession to the extent of his share. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was dismissed by the Additional District judge vide judgment and decree dated 1.3.1997. Hence, the present appeal by the defendants. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. As per the copy of the jamabandi for the year 1910-11 Ex.P-1, Kashmiri son of Nathu is described to be in possession of the suit property. However, in the copy of the jamabandi for the year 1914-15 Ex.P-2, both Kashmiri and Teja sons of Nathu are described to be in possession of the suit property. The same entries qua R.S.A.No.1111 of 1997 (O&M) 4 possession continued till the year 1926-27. However, as per the entry in the khasra girdawari Ex.P-5 for the year 1930-31, Kashmiri son of Nathu is described to be in possession of the suit property. Similar entries qua possession continued till the year 1946-47. In the jamabandi for the year 1951-52, Ex.P-9, the possession is described to be of Mam Raj son of Teja. Similar entries continued in the jamabandis till the year 1988-89. As per the jamabandi for the year 1993-94, Ved Parkash son of Mam Raj is described to be owner in possession of the suit property. The Gram Panchayat had filed a petition against Mam Raj under Section 13-B of the Punjab Village Common Lands Act, 1961. In the said case, it was held that the Gram panchayat could not be described to be owner of the suit property as in the revenue record, the possession of Mam Raj was depicted prior to the year 1951. On the basis of the entries in the revenue record, the suit filed by the Gram Panchayat was dismissed. Both the Courts below have given a finding of fact that it was not certain as to when the land was made cultivable. Initially the entries qua possession were in the name of Kashmiri and thereafter, the names of Kashmiri and Teja were mentioned in the revenue record. From the year 1930 onwards the name of Kashmiri alone was shown in the column of possession but from the year 1951, the entry qua possession was changed in the name of Mam Raj in the revenue record and name of Kashmiri did not figure in the column of cultivation. Mam Raj was serving in the Military till the year 1947. There is nothing on record as to how the entries were changed in the name of Mam Raj alone and why the name of Kashmiri was deleted in the revenue record. In these R.S.A.No.1111 of 1997 (O&M) 5 circumstances, both the Courts below have given a finding of fact that the plaintiff and Mam Raj continued to be in possession of the suit property in equal shares although in the revenue record the name of Mam Raj alone figured in the column of possession. The decree suffered by Mam Raj in favour of his son during the pendency of the suit was hit by the principle of lis pendence. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiff was owner of ½ share in the suit property. The said finding of fact calls for no interference by this Court. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 29, 2011 anita