R.S.A.No. 2482 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 11.11.2009 R.S.A.No. 2482 of 2008 Dulari Singh and others ......Appellants Versus Col.Girdhar Singh and others .......Respondents R.S.A.No. 2579 of 1997 (O&M) Surat Singh ......Appellant Versus Baljit Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. RBS Chahal, Advocate, for the appellant in RSA No.2482 of 2008 Mr. Suvir Sehgal, Advocate, for the appellant in RSA No.2579 of 1997. Mr.M.L.Saggar, Sr.Advocate with Mr.G.S.Brar, Advocate, for the respondents. **** R.S.A.No. 2482 of 2008 2 SABINA, J. Plaintiff Surat Singh filed a civil suit bearing No.148- T/9.3.1987 dated 21.3.1988 for permanent injunction restraining the defendants from raising any construction or alienating the suit property. Thereafter, he filed a civil suit No. 735-T of 18.4.1987 for declaration to the effect that he was owner in possession of the suit land. Both the suits of the plaintiff were dismissed by the trial Court as well as the lower Appellate Court. Hence, these two regular second appeals. Since both the suits relate to the same property though decided vide different judgments, these appeals would be disposed of vide a common judgment as the controversy involved in both the suits is the same. The facts are being taken from the suit filed the plaintiff for declaration that he was owner in possession. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment (in RSA No. 2482 of 2008) are as under:- “2. The case of the plaintiff, in brief, is that the plaintiff was joint holder of the property with other co- sharers in village Kheri Gujjran of which the land mentioned in the head note of the plaint was a part. Suit land was partitioned vide order dated 17.8.1982 by the Assistant Collector Ist Grade, Patiala and sanad takseem R.S.A.No. 2482 of 2008 3 was prepared. The plaintiff was allotted land, as described in the head note of the plaint, as his exclusive share in the partition proceedings. That prior to the partition while the holding was still joint, the plaintiff sold 2 bighas 16 biswas of land out of the joint holding out of his share without specifying any khasra numbers to Col.Girdhar Singh and his son. That the plaintiff had come to know that Col.Girdhar Singh defendant and his son had sold the land in pieces to the other defendants specifying khasra numbers and the mutation Nos.1120 and 1174 were entered and sanctioned in active connivance of the revenue authorities whereby mischievously specific parcels in specific khasra numbers had been shown to had been mutated in their favour, which was not in accordance with the registered sale deed in favour of Col. Girdhar Singh and his family members. That the revenue authorities had mischievously allocated land in specific numbers in connivance with Col.Girdhar Singh and his family members. That the revenue authorities had mischievously allocated land in specific khasra number in accordance with their own whims in connivance with the defendants and as such the said mutations infringing upon the valuable rights of the plaintiff, were liable to be R.S.A.No. 2482 of 2008 4 ignored and consequently the entries in the jamabandi and khasra girdawri in consonance with the aforesaid mutations were also liable to be ignored. Although Col.Girdhar Singh did not file a claim before the Assitant Collector Ist Grade, the plaintiff felt that he would give an area of 2 bighas 16 biswas out of his takk; where it would not hamper his rights of enjoyment of other land. Since the plaintiff did not sell specific khasra numbers to Col.Girdhar Singh and his son, they had no right to sell specific pieces of land from specific khasra numbers as per their own whims. That the aforesaid mutation conveying 4 B 17 B out of specific takk, which had fallen to the share of the plaintiff in partition proceedings, were totally incorrect, baseless and ineffective qua the rights of the plaintiff, acquired in partition proceedings. Mutation No.1120 entered on the basis of the sale by Nanak Singh co sharer did not confer any right upon the defendants and is not binding on any portion of the plaintiff's holding. That if at all the defendant preferred, he could claim and in respect value thereof or damages or compensation from vendor Nanak Singh, if so advised. They had no right whatsoever, as against the khata of the plaintiff. That the plaintiff approached the defendant and asked the defendants to get chalked out an area of 2 bighas 16 R.S.A.No. 2482 of 2008 5 biswas from the plaintiff, which the plaintiff felt himself morally obliged to do so, but the defendants showing their cleverness and professing that they had their influence with the revenue authorities got these two mutations sanctioned in accordance with their own requirements at the back of the plaintiff and also got them incorporated in the jamabandi for the year 1982-83, as such infringing upon the rights of the plaintiff over the suit land. The plaintiff was in possession of the land measuring 15 bighas 12 biswas as owner as described in the head note of the plaint, except 9 biswas out of khasra No.166 where defendant No.1 has constructed his house and 8 biswas out of khasra No.167 which was being used by him, as a passage to his house. Exact location of the land measuring 9 biswas out of khasra No.166 and 8 biswas being used as passage out of khasra No.167 was given in the site plan enclosed. That the total area comprising khasra Nos. 165, 166, 167 and 168 mentioned in the head note of the plaint was marked ABCD in the site plan attached. Out of this only 0-17 was with the defendant adjoining the land purchased by defendant Nos. 1 to 4 from Nanak Singh. That the entire are shown in the site plan ABCD was enclosed by the plaintiff with barbed wire before making sale to defendant No.1 and his son. Thus, R.S.A.No. 2482 of 2008 6 the plaintiff was in possession of the land measuring 8 B 15 B marked in the site plan as ABCD and this area had falled to the share of the plaintiff in partition. The entries in the mutation Nos. 1120 and 1174 and in the jamabandi were wrong and subsequent entries in the khasra girdawari were also wrong. Defendants No.1 to 4 purchased land measuring 2 bighas vide sale deed ated 19.7.1979 from Nanak Singh son of Raja Gurdit Singh. 1 bighas 10 biswas was out of khasra No.167 and 10 biswas out of khasra No.166, whereas, the defendant No.1 and his son Kishan Singh purchased land measuring 2 bighas 16 biswas vide sale deed dated 17.7.1978 from the plaintiff out of two takks without specifying khasra numbers. One takk comprised of land measuring 29 B-1B comprising fields No. 175, 154, 155, 156 and 157 in which the plaintiff had 1/3rd share and the other takk measuring 42 bighas 16 biswas comprising fields No.163, 164, 165, 166, 167, 168, 170, 171, 172 in which the plaintiff had 1/8 share. In collusion with the revenue authorities and in the absence of the plaintiff without any notice to him, the mutation was sanctioned and attested which was not in accordance with the sale deeds. The presence of the plaintiff was wrongly entered in the mutation and the plaintiff never surrendered R.S.A.No. 2482 of 2008 7 possession in favour of the defendants except 9 biswas out of khasra No.166 and 8 biswas, out of khasra No.167 allowed to be used as a passage nor they got possession from him in due course of law, through any court or by way of partition nor could they take the land in their own hands to forcibly take the possession from the plaintiff or interfere in his possession of the land, nor could raise construction without his consent or alienate specific khasra numbers out of the land marked as ABCD in the site plan. According to the two sale deeds defendant Nos. 1 to 4 were entitled to land measuring 2 bighas, out of khasra No.166(0-10) and out of khasra No.167(01-0) out of share of Nanak Singh, who was allotted 9 biswas out of khasra No.166 and 1 bigha 9 biswas out of khasra No.167. They were only entitled to the land from the share of the plaintiff, out of two takks measuring 2 bighas 16 biswas as he never sold the specific khasra numbers. The total area of khasra No.166 was (3-16), whereas according to the khasra girdawari area of khasra No.166 came to (6-10) and that of khasra No.167 (4-15). Defendants No.5 to 7 claimed that defendants No.1 to 4 had sold some land to them out of the suit land and they were bent upon to take possession of land measuring 8- 15 forcibly and intended to interfere in the possession of R.S.A.No. 2482 of 2008 8 the plaintiff except 9 biswas and 8 biswas, as described above in the plan attached. They also wanted to alienate the land measuring 9-12 shown in the site plan ABCD and also wanted to raise construction to which they were not entitled. The plaintiff many a times before filing the suit approached them to settle the matter amicably and to get their land measuring 2 B 16 B separated and to get possession of the same on equitable basis, but they did not agree. The plaintiff had no other efficacious remedy, except to file the suit for permanent injunction restraining the defendants from interfering in the possession of land measuring 8-15 and restraining the defendants from alienating the land measuring 9-12 or any part thereof and also raising any construction in the same. The defendant No.5 along with her partymen illegally encroached upon the land measuring 75 karam x 45 karams marked as EFGH in the rough site plan out of khasra Nos. 166, 167 and 168 of village Kheri Gujjran and the plaintiff was the exclusive owner of this land earlier to 29-30 August 2001 and it was also in exclusive possession of the plaintiff. As the plaintiff was busy in the court on those dates in another case titled as Devinder Kumar versus Raj Kumar and others and in the absence of the plaintiff, the defendants encroached upon the land R.S.A.No. 2482 of 2008 9 marked as EFGH blocked the passage of the plaintiff, as shown in the rough site plan. Earlier they had also constructed a barbed wire fence approximately 40 karams long as shown in the rough site plan much beyond 2 bighas 16 biswas in contravention of Hon'ble Punjab and Haryana High Court's stay order dated 23.4.1999. The encroachment by defendant No.5 was illegal and also a criminal offence. The plaintiff requested the defendants not to do such illegal acts, but to no effect. Hence, the suit. 3. Despite notice, none appeared on behalf of defendants No.1 to 4 and as such they were proceeded against ex parte by the trial Court. 4. Defendants No.5 to 8 appeared and filed written statement raising preliminary objections that the suit is beyond limitation; that the plaintiffs have not approached the court with clean hands and that the present suit for declaration and injunction was not maintainable. On merits, it has been averred that the plaintiff was in possession of land, which he had sold sale deed dated 29.7.1979; on the basis of which mutations were entered and sanctioned and jamabandi for the year 1982-83 was prepared. After the sale of the land the plaintiff was left with no interest and title in R.S.A.No. 2482 of 2008 10 the same and it was denied that the plaintiff was joint holder of the property along with other co-sharers qua the land, after the sale of the same. The answering defendants were not aware of the suit allegedly filed by Nanak Singh for partition and the property in dispute being abadi property. The revenue courts had no jurisdiction to decide about the same. The suit for partition was decided on 4.12.1981/30.8.82 was based on an alleged compromise between some of the persons and had no concern with the property purchased by defendant Nos. 1 to 4 and again sold to the answering defendants vide sale deed dated 10.2.1987. The plaintiff had sold land measuring 2 B 16 B vide registered sale deed dated 19.7.1979 and land measuring 2 bighas being attorney of Nanak Singh and on the basis of which mutation Nos. 1120 and 1174 were sanctioned in presence of the plaintiff and the purchasers. The plaintiff had delivered the possession of the land sold by him and had no concern with the same. It has been averred that the plaintiff is estopped from challenging the sale deeds executed by the plaintiff. The plaintiff had himself delivered actual, physical possession of the land to Col.Girdhar Singh and others, who had constructed their residential house R.S.A.No. 2482 of 2008 11 therein and started residing therein. The plaintiff had no concern with the land sold by him to defendants No.1 to 4 and the plaintiff had no concern at all with the property purchased by answering defendants from defendant Nos. 1 to 4 vide five registered sale deeds dated 10.2.1987. The plaintiff had no occasion to approach the answering defendants or to ask to deliver possession of the land measuring 2 B 16 B of land. The site plan produced by the plaintiff was not correct. The alleged sanad takseem had nothing to do with the land sold to the defendants. The plaintiff had delivered possession of the land sold by him. The plaintiff was wrongly claiming possession of the land measuring 8 bighas 15 biswas or that the answering defendants could not raise construction on the property purchased by them. All other averments of the plaintiff have been specifically denied as incorrect and prayed for dismissal of the suit with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is owner in possession of property in dispute? OPP 2. Whether the claim of the defendants upon specific khasra numbers without seeking partition is R.S.A.No. 2482 of 2008 12 illegal? OPP 3. Whether the mutation Nos. 1120 and 1174 are illegal, null and void? OPP 4. Whether the defendants cannot alienate the suit land? OPP 5. Whether the suit is within limitation? OPP 6. Whether the suit is not maintainable? OPD 7. Whether the plaintiff is estopped from his act and conduct to file this suit? OPD 7-A Whether defendants Nos. 5 to 8 have taken forcible possession from the plaintiff regarding portion of the suit land in khasra Nos. 167, 166 min during the pendency of this case, if so, whether plaintiff is entitled for possession of the this portion? OPP 8. Relief. Learned counsel for the appellants has submitted that the Courts below have misread the evidence led by the parties on record. In fact, the plaintiff had sold 2 bighas 16 biswas of land out of his share to Col.Girdhar Singh vide sale deed dated 17.7.1978 Ex.PW- 7/1. The plaintiff further sold 2 bighas of land out of khasra No.167 min (1-10) and khasra No.166 min (0-10) acting as attorney of Nanak Chand to Col.Girdhar Singh vide sale deed dated 19.7.1979 Ex.PW- 7/2. Purchaser Col.Girdhar Singh was sold land measuring 2 bighas on the Western side of the land owned by the plaintiff which R.S.A.No. 2482 of 2008 13 belonged to Nanak Singh. Col.Girdhar Singh sold 2 bighas of land to defendants No. 5 and 6 vide sale deed Ex.DW 5/2 and DW 5/3. The subsequent purchasers, however, took possession of the land belonging to the plaintiff instead of the land on the Western side of the land sold by plaintiff to Col.Girdhar Singh. Learned Sr. counsel for the respondents (except respondents No.1 to 4 in RSA No.2482 of 2008), on the other hand, has submitted that the land in dispute had been sold to the respondents by Col.Girdhar Singh and possession of the same had been handed over to the respondents. There was no occasion for the plaintiff to keep the land marked EHGF shown in the site plan Ex.PW-9/A, which was beyond the hedge affixed by the plaintiff. The substantial question of law that arises in these appeals is “whether the Courts below have failed to consider the material evidence on record?” Although parties have led voluminous evidence in support of their respective pleas yet the point in controversy is small. Admittedly, plaintiff sold 2 kanals 16 marlas of land out of his share to Col.Girdhar Singh vide sale deed Ex.PW-7/1. By doing so, the plaintiff had only sold 2 bighas 16 biswas of land out of his share. So far as the said sale deed is concerned, there is no dispute. The case of the plaintiff is that qua the said sale deed he had sold the portion marked ADEH to Col.Girdhar Singh as shown in the site plan Ex.PW- 9/A. The case of the plaintiff is that Col.Girdhar Singh was in R.S.A.No. 2482 of 2008 14 possession of the said property. Thereafter, vide sale deed Ex.PW- 7/2 plaintiff on behalf of Nanak Singh, acting as his attorney, sold 2 bighas of land. The sale of 2 bighas of land was with regard to the specific khasra numbers i.e. 167 min (1-10) and 166 min (0-10). The dispute is with regard to the said land sold by plaintiff on behalf of Nanak Singh to Clo.Girdhar Singh. Respondents by virtue of the said sale deeds in their favour took possession of portion marked EHGF in the site plan Ex.PW-9/A, whereas, the portion sold was on the Western side of portion marked ABCD as the said portion was owned by Nanak Singh. The portion on the Eastern side i.e. marked with letters EHGF belonged to plaintiff Surat Singh. Admittedly, as per the compromise effected between Surat Singh and his co-sharers, Surat Singh got 6 more bighas of land in khasra No. 175 (5-0), 172 (1-0) in addition to 9 bighas 12 biswas of land which he had already been given in khasra Nos. 165, 166, 167 and 168 in which he had made a farm house for himself in khasra No.165. Raj Kumar and Nanak Singh had already given 2 bighas of land out of their share to Surat Singh, which was included in 9 bighas 12 biswas of land given to Surat Singh. Admittedly, the land ABCD as depicted in the site plan Ex.PW-9/A measures 9 bighas 12 biswas. Out of this land, plaintiff had sold 2 bighas 16 biswas of land to Col.Girdhar Singh. Admittedly, the land which remained with him measured 6 bighas 16 biswas. The land shown with letters GFCB in the site plan Ex.PW-9/A cannot be said to be R.S.A.No. 2482 of 2008 15 measuring 6 bighas 16 biswas. Rather the land depicted as EHBC measures 6 bighas 16 biswas. In case the portion EHGF is treated to have been sold by the plaintiff to Col.Girdhar Singh, there is shortage in the share of the plaintiff by 2 bighas. Apparently, this problem arose because vide sale deed Ex.PW-7/2, land bearing khasra No.167 min (1-10) and 166 min (0-10) was sold, whereas, while sanctioning mutation, the said sale by Nanak Singh was entered as 167 min (0-10) and 166 min (1-10). The said mistake in mutation was rightly ordered to be corrected by the Courts below and the correction was ordered to be made in the mutation in terms of the sale deed. However, the dispute qua 17 karams x 45 karams i.e. land shown in letters EHGF still remains to be resolved as the suit qua the said area was dismissed. Another site plan, which is very relevant for deciding lis between the parties is Ex.PW-7/C. A perusal of the same reveals that the portions in the ownership and possession of Nanak Singh and plaintiff have been duly reflected. The land of Nanak Singh includes some portion of khasra Nos.166 and 167. The said portion i.e. measuring 2 bighas had been sold by Nanak through the plaintiff acting as his attorney vide sale deed Ex.PW-7/2. In these circumstances, the subsequent vendees of Col.Girdhar Singh, who had purchased 2 bighas of land bearing Khasra Nos. 166 min and 167 min were to get possession of the land on the Western side of 2 bighas 16 biswas of land initially purchased by Col.Girdhar Singh R.S.A.No. 2482 of 2008 16 from plaintiff Surat Singh. The Courts below have thus failed to consider the material evidence on record and hence, erred in dismissing the suit of the plaintiff qua land measuring 17 karams x 45 karams. The suit of the plaintiff for possession of land measuring 17 karams x 45 karams as depicted with letters EHGF in site plan Ex.PW-9/A was liable to be decreed. Since the plaintiff has been held to be owner of the suit property, he is also entitled for relief of permanent injunction restraining the defendants from raising any construction in the suit property or alienating the suit property. The substantial question of law that arises in these appeals stands answered accordingly. Hence, these appeals are allowed. The impugned judgments and decrees of the Courts below arising out of civil suit No.148 T/9.3.1987/21.3.1988 are set aside and consequently, the said suit filed by the plaintiff is decreed as prayed for. The impugned judgments and decreed of the Courts below arising out of civil suit No.735-T-18.4.1987 are modified to the extent that the suit of the plaintiff for possession qua land measuring 17 karams x 45 karams is decreed. (SABINA) JUDGE November 11, 2009 anita