Regular Second Appeal No. 2118 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2118 of 2011(O&M) Date of decision : May 16, 2011 Attar Singh ....Appellant versus Ram Dhari and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Namit Sharma, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 5907.C of 2011 Allowed as prayed for. RSA No. 2118 of 2011 Attar Singh one of the legal representatives of defendant no. 1- Ram Sarup since deceased has filed the instant second appeal. Respondents no. 1 to 10/plaintiffs who filed the suit against Ram Sarup and others i.e. appellant and proforma respondents no. 11 to 32 including predecessors of some of them (since deceased) were non-suited by the trial court but have been successful in the lower appellate court. Plaintiffs' case is that Lakhi mortgaged his 11 bighas 17 biswas Regular Second Appeal No. 2118 of 2011(O&M) -2- land with Kanhiya and Hari Singh on 26.2.1923 for Rs 1100/- and mutation no. 803 was sanctioned on 26.3.1923. However, the suit land measuring 12 biswas was not mortgaged. Plaintiffs' predecessor Karmu who was recorded as joint owner of the suit land never mortgaged it with predecessors of the defendants. However, in the revenue record the plaintiffs and their predecessors were wrongly recorded as mortgagors and defendants and their predecessors were recorded as mortgagees of the suit land also. Mortgage of 11 bighas 17 biswas land has also since been redeemed vide mutation no. 2515 dated 29.11.1960. However, even thereafter the suit land continues to be recorded to be under mortgage. Accordingly, the plaintiffs sought declaration that the aforesaid revenue entries depicting plaintiffs and their predecessors as mortgagors and defendants and their predecessors as mortgagees of the suit land are incorrect and are liable to be corrected. The plaintiffs also sought relief of possession of the suit land along with permanent injunction. Defendants no. 1 to 6 (now represented by appellant and proforma respondents no. 11 to 31) contested the suit. However, it was admitted that land measuring 11 bighas 17 biswas was mortgaged with predecessors of the defendants on 26.2.1923. It was, however, pleaded that revenue entries regarding suit land are correct. It was pleaded that mortgage of the suit land was not got redeemed. Possession of the defendants over the suit land is as mortgagees with the knowledge and consent of plaintiffs and their predecessors. Various other pleas were also raised. Regular Second Appeal No. 2118 of 2011(O&M) -3- Learned Additional Civil Judge (Senior Division), Panipat vide judgment and decree dated 23.4.2010 dismissed plaintiffs' suit. However, first appeal preferred by plaintiffs has been allowed by learned Additional District Judge, Panipat vide judgment and decree dated 31.1.2011 and thereby suit filed by the plaintiffs stands decreed. Feeling aggrieved, Attar Singh one of the legal representatives of defendant no. 1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. It is undisputed as also borne out from the revenue record that there was a single mortgage which has been redeemed. The mortgage was for Rs 1100/- whereas the mortgagors paid Rs 1150/- for redemption of the mortgage. Consequently, irrespective of whether suit land was under mortgage or not, the suit land is no longer under mortgage because mortgage of the entire mortgaged land stands redeemed. Consequently, defendants have no right to continue in possession of the suit land. On the other hand, plaintiffs being owners of the suit land are entitled to possession thereof. Revenue entries depicting the plaintiffs as mortgagors and defendants as mortgagees of the suit land have been rightly held by the lower appellate court to be wrong and illegal and not binding on the plaintiffs. Plaintiffs being owners of the suit land have been rightly granted possession thereof along with injunction restraining the defendants from alienating the suit land. Learned counsel for the appellant vehemently contended that in Regular Second Appeal No. 2118 of 2011(O&M) -4- view of section 158(2)(vi) of Punjab Land Revenue Act, 1887 (in short, the Act) jurisdiction of civil court to order correction of any entry in record of rights, annual record or register of mutations is barred. It was accordingly contended that civil court has no jurisdiction to order correction of the revenue entries. There is no dispute with the legal position. However, it does not come to the rescue of the appellant in any manner. In the instant case, lower appellate court has not ordered correction of the revenue entries in question. Lower appellate court has rightly held the said revenue entries depicting the plaintiffs as mortgagors and defendants as mortgagees of the suit land to be wrong and illegal and not binding on the plaintiffs. Section 45 of the Act stipulates that if any person considers himself aggrieved as to any right of which he is in the possession by an entry in a record-of-rights or in an annual record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (now Specific Relief Act, 1963). Consequently, the instant suit in the civil court was rightly instituted under section 45 of the Act because plaintiffs were aggrieved by the entries in revenue record relating to the suit land regarding mortgage. The suit is very much maintainable in the civil court in view of specific provision of section 45 of the Act. For the reasons aforesaid, I find no merit in the instant second appeal. Lower appellate court has rightly decreed the suit of the plaintiffs. Finding of lower appellate court does not suffer from any illegality or perversity nor it is based on misreading or misrepresentation of evidence. On the contrary, the said finding is the only finding that can be arrived at on Regular Second Appeal No. 2118 of 2011(O&M) -5- the basis of pleadings and evidence of the parties. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) May 16, 2011 Judge 'dalbir'