REGULAR SECOND APPEAL No.149 OF 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.149 OF 2007 DATE OF DECISION: FEBRUARY 3, 2011 Bhup Singh & others .... Appellants Versus Munshi Ram & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Kulvir Narwal, Advocate for the appellants. Mr. Saurabh Dalal, Advocate for respondents No.1 to 4 & 7. * * * * L.N. MITTAL, J. (ORAL) Defendants No.11 to 16 having remained unsuccessful in both the courts below have filed the instant second appeal. Respondents No.1 to 4 and processors of respondents No.5 to 7- plaintiffs filed suit against appellants and proforma respondents No.8 to 23, alleging that plaintiffs have been owners in possession of the suit land measuring 1 Kanal 16 Marlas comprised of Kill No.51//7/1 and the suit land was in their exclusive possession as per partition among cosharers duly incorporated in the revenue record. Defendants have no right, title or interest in the suit land but they have illegally constructed a small room in North- Eastern corner of the suit land and thereby encroached upon in the suit land in August, 1993 i.e. a month before the filing of the suit. Accordingly, plaintiffs filed suit for possession of the suit land with mandatory injunction directing the defendants to remove the disputed room measuring about 7 feet X 8 feet REGULAR SECOND APPEAL No.149 OF 2007 -2- existing in North-Eastern corner of the suit land. Defendants inter alia pleaded that the suit land belongs to Pana Pachosia according to Hasab Rasad Araji Khewat. Defendants are proprietors in the said Pana Pachosia and cosharers and Biswedars thereof. Defendants are in possession of the suit land as cosharers since time immemorial. Plaintiffs have no concern with the same. There was no partition of Shamlat land of the Pana among the cosharers. Mutation No.1590 sanctioned on 14.06.1976 regarding partition is illegal and null and void. Defendants never learnt of the said mutation. Houses of defendants exist over the suit land for more than 20 years. Defendants have never been ejected from the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Bahadurgarh vide judgment and decree dated 09.10.1999 decreed the plaintiffs' suit. First appeal preferred by defendants No.11 to 16 stands dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 11.10.2004. Feeling aggrieved, defendants No.11 to 16 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that suit land being shamlat land could not have been partitioned. It has also been contended that mutation No.1590 dated 14.06.1976 regarding partition is null and void. Defendants' houses exist in the suit land since long before the said mutation. Reference was made to order dated 20.10.1970 Exhibit DW-4/A passed by Assistant Collector, First Grate in ejectment petition filed by Gram Panchayat against Jeet Ram, Sarup and Nahne sons of Maya Ram, under REGULAR SECOND APPEAL No.149 OF 2007 -3- Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961. Defendant No.1 herein is Nahne himself, defendants No.2 to 8 are legal heirs of Sarupa and defendants No.9 to 18 are legal heirs of Jeet Ram. It was contended that even in the said order, house of Jeet Ram, predecessor of appellants, was excluded from ejectment. On the other hand, learned counsel for the respondents contended that partition mutation No.1590 was sanctioned on 14.06.1976 in the presence of proprietors and in view of said partition, plaintiffs are owners of the suit land measuring 1 Kanal 16 Marlas. It was pointed out that the said mutation was never challenged by anybody, although the instant suit was filed on 24.09.1993, i.e. more than 17 years after the mutation was sanctioned. I have carefully considered the rival contentions. Ejectment petition by Gram Panchayat against Jeet Ram etc. was filed regarding Killa No.21/7(3-11) and 51//7 (7-2). Ejectment was ordered by the Assistant Collector except the area occupied by house of Jeet Ram (predecessor of the appellants). The said house was ordered to be demarcated by the Patwari in presence of the parties and the said area was to be considered as excluded from the Panchayat land. However, no evidence has been led by the defendants to depict that any such demarcation of existing house of Jeet Ram was ever made pursuant to the aforesaid order and if so whether any part of the said house exists in part of the suit land which is only 1 Kanal 16 Marlas comprised of Killa No.51/7/1. It is the positive case of the plaintiffs that just a month before the filing of the suit, a small room measuring 7 feet X 8 feet has been constructed in the suit land and the remaining land is lying vacant. Even defendant No.15 while appearing in the witness box stated that except their house, the remaining land is lying vacant. Defendants have not brought on REGULAR SECOND APPEAL No.149 OF 2007 -4- record the extent of their house and portion if any thereof existing in the suit land. Entire killa No.51//7 was 7 Kanals 2 Marlas, but the plaintiffs out of it claim only 1 Kanal 16 Marlas being Killa No.51//7/1. The remaining 5 Kanals 6 Marlas land is said to be of the defendants even as per assertion of the plaintiffs. Plaintiffs' case is supported by mutation No.1590 dated 14.06.1976 by which the entire land was partitioned among proprietors/cosharers. Even defendants have been given land in the said partition. The mutation also depicts that the cosharers were in possession of the respective land allotted to them in the partition. In view of said mutation and subsequent entries in Jamabandis, plaintiffs are owners of the suit land measuring 1 Kanal 16 Marlas. From the material on record, it cannot be said that the suit land and other joint land could not have been partitioned. On the other hand, partition was incorporated in revenue record as per provisions of the Punjab Land Regulation Act. Plaintiffs became exclusive owners of the suit land on partition and the said partition was never challenged. For the reasons aforesaid, suit has been rightly decreed by the courts below. Concurrent finding recorded by the courts below is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed being devoid of merit. (L. N. MITTAL) JUDGE 03.02.2011 'raj'