R.S.A. No. 427 of 1993 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 427 of 1993 (O&M) Date of Decision : March 21, 2009 Ram Kishan .......... Appellant Versus Dalbir Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Amit Jhanji, Advocate for the appellants. Mr. S.K. Jain, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 27.11.1992 passed by the learned lower appellate Court below vide which the judgment and decree dated 11.2.1992 passed by the learned Addl. Senior Sub Judge, Saffidon was ordered to be set aside and the suit filed by the plaintiff-respondents was ordered to be decreed. The plaintiff-respondents brought a suit for declaration with a consequential relief of permanent injunction on the pleading that one Manga son of Har Narain, resident of village Sarfabad was a big landlord. The agricultural land comprised in Rectangle No. 44, Killa No. 3/2 (6-4), 8(8-0), 13(8-0), 18(8-0), 23(8-0), 24/1 (3-4) total measuring 41 Kanals 8 Marlas situated in village Sarfabad, Tehsil Saffidon, fully detailed and described in R.S.A. No. 427 of 1993 2 the head note of the plaint along with other land was declared surplus. The mutation of the suit land was sanctioned in favour of the State Government. The suit land was allotted to plaintiff by prescribed authority under Pepsu Utilisation of Surplus Area Scheme. The possession of the suit land was delivered to the plaintiff on 17.6.1966 in compliance with warrant of possession dated 19.2.1966. Defendant Ram Kishan and Mahal Singh in collusion with Halqa Patwari got the land mutated in favour of Dhanpat vide mutation No. 432 dated 30.12.1973. Defendants No. 1 & 2 thereafter mortgaged the part of the suit land without possession with Saffidon Primary Cooperative Agriculture Development Bank Limited, Saffidon vide registered mortgage deed No. 351 dated 25.6.1982. The plaintiff respondent filed a suit for declaration that he is owner in possession of the suit land and the mortgage deed No. 351 dated 25.6.1982 was null and void and not binding on his rights. The plaintiff also sought consequential relief of permanent injunction. On notice, defendants No.1 & 2 filed a written statement with counter claim. In the written statement it was pleaded by Ram Kishan and Mahal Singh that the suit land belong to Manga s/o Harnarain. However, they denied that the land was allotted to plaintiff-respondent. According to defendants No.1 & 2 the suit land was allotted to Dhanpat defendant No.3, who sold it to defendants No.1 & 2. It was further pleaded that they were dispossessed by one Rambhaj son of Khema who delivered the possession to plaintiff. Thus, by way of counter claim defendants No.1 & 2 prayed for decree for possession. Defendant No.3 filed a separate written statement, admitting R.S.A. No. 427 of 1993 3 that the suit land was never allotted to him. He also denied having sold any part of the suit land on the plea that his thumb impression on the sale deed might have obtained by playing a fraud upon him. Saffidon Primary Cooperative Agriculture Development Bank Limited, Saffidon was proceeded against ex parte. The legal representatives of Ram Kishan plaintiff was brought on record during the pendency of the suit because of his death. After the filing of the replication the learned trial Court was pleased to frame the following issues :- “1. Whether the mortgage deed dated 25.6.1982 is wrong, null and void and is liable to be set aside as alleged ? OPP 2. Whether the plaintiff is the owner in possession of the suit property as alleged ? OPP 3. Whether the plaintiff is entitled to the injunction as prayed for ? OPP 4. Whether the defendant No.1 and 2 are entitled to the injunction by way of counter claim ? OPD 5. Whether the Counter claim set up by the defendants No.1 and 2 is time barred ? OPP 6. Relief.” The plaintiff respondent sold the entire suit land to Dalbir Singh, Umed Singh, Jaibir Singh, Kulbir Singh and Jagbir Singh son of Ram Bhaj for consideration of Rs. 40,000/- by way of registered sale deed dated 28.12.1987. The subsequent vendees referred to above, were also ordered to be impleaded as party vide order dated 21.2.1991. Issue No.4 was re-cast by the learned trial Court on 23.5.1991, R.S.A. No. 427 of 1993 4 to read as under :- “4. Whether defendants No.1 & 2 are entitled to the possession of the suit land by way of counter claim from the plaintiffs and defendants No. 5 to 9? OPD 1 and 2. The learned trial Court dismissed the suit filed by the plaintiff respondent. However the learned lower appellate Court accepted the appeal by recording the following findings :- “Thus, the title of the vendors or predecessor-in-interest of Dalbir Singh etc. on one hand and Ram Kishan etc. sons of Chandgi on t he other hand is to be determined and considered. Ram Kishan s/o Gagan has been allotted the suit land as per document Ex.P-2. Then it is also revealed from warrant of possession Ex.P-3 that possession to the allottee namely Phula, Dhanpat, Dul, Mesho and Ram Kishan has been delivered. We are not concerned in this appeal with the delivery of possession to the other allottees. Dispute is whether the suit land is allotted to Ram Kishan s/o Gagan or to Dhanpat. Allotment and delivery of possession from documents Ex.P-2 to P-4 is proved in favour of Ram Kishan s/o Gagan and then documents Ex.P6 also reveals the allotment of land measuring 41 Kanals 10 marlas in favour of Ram Kishan and the amount payable as R.S.A. No. 427 of 1993 5 compensation is mentioned as Rs. 2247/60 NP in the document Ex. P-6 while Ex.P-8 land allotted to Dhanpat comprised in rect No. 41 killa No. 7, 8 etc. is mentioned and the compensation payable is mentioned as Rs. 2190. A perusal of the order made on document Ex. P-2 by Naib Tehsildar Agrarian shows that the impugned order ispassed in accordance with the provisions of the Act and Scheme. There is proved compliance of the statutory provisions regarding the suit land in favour of Ram Kishan S/o Gagan. It is also pertinent to mention at this stage that Dhanpat defendant in his written statement has specifically pleaded that he was not allotted the suit land and he never transferred the suit land in favour of defendant No.1 and 2, while appearing in the witness box as DW on 22.9.89 also Dhanpat has categorically stated that suit land was not allotted to him. Thus, Dhanpat is making a statement oath against his own interest knowing it fully well about the consequences of refund of the sale consideration if any received by him or about consequences of criminal prosecution etc. and from the evidence adduced on the file it is no where provide that Dhanpat is related to the present appellants or to Ram Kishan s/o Gagan in any manner. Thus, there is no reason to dis-believe the statement of Dhanpat. No doubt,in view of the fact that defendants No.1 and 2 have R.S.A. No. 427 of 1993 6 been able to prove the agreement dated 7.5.73 Ex. DW2/A and copy of sale deed Ex. D-3 dated 2.8.73 from the statement of scribe, attesting witnesses etc. and prima facie these documents may go to shown that Dhanpat is not speaking the truth but the statement on oath of Dhanpat against his own interest corroborating the version of the present appellants goes a long way to find out validity of the title. No hand-writing and finger print expert has been produced by the defendants to prove thumb impression or signatures of Dhanpat on the agreement or sale deed in question. Even if Dhanpat has executed the agreement Ex. DW2/A and original sale- deed copy of which is Ex. D-3 in favour of defendant No.1 and 2, these documents are not binding on Ram Kishan s/o Gagan and the present appellants because they were not party to these documents and also cannot be used to corroborate the statement of Dhanpat vendor who executed these documents because Dhanpat is making a statement against the recitals contained in these documents. 9. Defendant No.1 and 2 mainly bank upon documents Ex. D-4 and D-7 in order to prove title of Dhanpat over the suit land. Ex. D-4 is the order dated 21.3.83 of Asstt. Collector, Safidon vide which he has ordered sanctioning of mutation No. 155 and 156 in R.S.A. No. 427 of 1993 7 favour of Dhanpat and defendants No.1 and 2. Consequently mutation No. 155 copy of which is Ex. P- 11 and mutation No. 156 copy of which is Ex. P-12 have been sanctioned in their favour. Ram Kishan s/o Gagan filed appeal before the Collector and his appeal was dismissed. The copy of allotment Ex. D-6 has also been produced by the defendants No. 1 and 2 to prove this fact that suit land was allotted to Dhanpat while Ram Kishan s/o Gagan was allotted the land bearing rect no. 43 killa No. 19, 20, 21, 22, 44/2 etc. as per allotment slip Ex. D- 7. A perusal of the orders revenue authorities Ex.D-4 and D-5 shows that Civil suit between the parties is pending. Parties can get their rights determined from civil court. It is also well settled that mutation does not confer any title. Thus, these orders of Asstt. Collector and the Collector are not having any significance in the matter of determination title or the parties. More-over, it is also no where proved by the defendants that these orders were passed by Asstt. Collector or Collector under the Act as Collector as Collector Agrarian. There is not even an iota of evidence adduced by defendants No.1 and 2 to prove this fact that Dhanpat was delivered possession of the land mentioned in the slip Ex.D-6 in accordance with the procedure prescribed under the Act and scheme. It is no where proved from any documentary R.S.A. No. 427 of 1993 8 evidence or from oral evidence that Dhanpat was ever delivered possession on the land in question by virtue of the allotment slip Ex.D-6. In fact such allotment slip is nothing but a paper transaction. Same has not been acted upon. Mutations are sanctioned only to complete the documents but they do not confer any title on any party. Possession of Ram Kishan s/o Gagan plaintiff over the suit land by hold in the earlier judgment dated 18.8.83 Ex.P-14 delivered by Sh. R.C. Bansal, Sub Judge Ist Class, Safidon in civil suit Ram Kishan, Mana Singh Vs. Ram Kishan (civil suit No. 360 of 91) and a perusal of the finding recorded by Ld. Sub Judge on issue No.1 shows that possession of Ram Kishan s/o Gagan defendant in that suit has been found. It is also mentioned in para No. 9 of that judgment that according to Ex.D-1 copy of proceedings dated 17.6.83 possession of the suit land was given to defendant Ram Kishan. Against this judgment dated 18.8.83 plaintiff namely Ram Kishan, Mana Singh ss/o Chandgi went in appeal but Sh. Surinder Singh, Addl. District Judge, Jind vide judgment dated 21.8.84 dismissed the appeal and Ram Kishan s/o Gagan was found in possession of the suit land. Subject matter of the present suit and that suit is the same. Parties are also one same. Thus, one finding of possession recorded in the earlier suit is binding upon R.S.A. No. 427 of 1993 9 the present defendants No.1 and 2 and their version in this suit that they were dis-possessed by one muscle-man of the plaintiff about 4 or 5 months ago is nothing but only a concocted and false one. Faced with this document, ld. Counsel for the defendant-respondent has submitted that in copy of jamabandi P-9 for the year 1980-81 Ram Kishan defendant is recorded in possession of the suit land but it is well settled that presumption of truth and correctness attaching to the copy of jamabandi is rebuttable one. Law presumes in favour of continuity of possession. A perusal of copy of jamabandi for the year 1970-71 Ex.P-10 shows that Ram Kishan s/o Gagan was in possession of the suit land. The stray entry in favour of defendant No.1 and 2 in the year 1980-81 stands amply rebutted from the oral as well as documentary evidence and from the very verdict of the judicial courts in the earlier litigation. Ram Kishan vendor who has appeared in the witness box as PW 1 and who is no more in this world has in cross- examination categorically stated that he used to get this land cultivated for about 2 years on patal from Ram Bhaj Sarpanch and jointly cultivates the land with Ram Bhaj Sarpanch. Defendants have tried to take the advantage of such revenue entries if any, in fav our of Ram Bhaj but, the fact remains that continuous R.S.A. No. 427 of 1993 10 possession of Ram Kishan, predecessor- in-interest of the present appellants as allottee is proved over the suit land. Thus, Ram Kishan s/o Gagan was competent to alienate the suit land in favour of present appellants and sale-deed copy of which is Ex. DA in favour of Dalbir etc. executed by Ram Kishan s/o Gagan is valid document which is fully proved in the statement of Dalbir DW-1 and Shital Parkash deed-writer DW-2 and Ranbir DW-3 while title of defendants No.1 and 2 to the suit land is not proved because from the evidence adduced it is not proved that Dhanpat was having any valid title to the suit land so he was not competent to transfer any better title. Consequently, defendants No.1 and 2 were also not competent to mortgage the land in question or any part thereof in favour of Safidon Primary Land Development Bank. Thus, mortgage-deed dated 25.6.82 is illegal, wrong and not binding on the rights of the present appellants. Thus, in my considered opinion the ld. Addl. Senior Sub Judge has not rightly appreciated the evidence adduced by the parties and so findings recorded by ld. Trial Court on issues No.1 and 2 is accordingly set aside and these issues are accordingly held as proved and are decided in favour of the plaintiff and against the defendants. Defendants No.1 and 2 are not entitled to possession of the suit land as they are not R.S.A. No. 427 of 1993 11 proved owners of the same, so finding recorded on issue No.4 by ld. Trial Court is also reversed. It may be mentioned that ld. Trial court has also not recorded finding on issue No.5 properly. Neither issues No.5 is happily worded. Plaintiff had set up the plea of adverse possession in the replication which was filed to the written statement and counter claim filed by defendants No.1 and 2 and defendants No. 1 and 2 had also filed re- joinder. There should have been specific issue regarding adverse possession but since the plaintiff and his successor-in-interest are succeeding on the point of title and possession, there is no need to frame the issue of adverse possession.” Mr. Amit Jhanji, learned counsel appearing on behalf of the appellants contends that the following substantial questions of law arise for consideration by this Court in this appeal :- “1. Whether the findings of the Ist Appellate Court is clearly perverse when it held that the order of allotment Ex. D-6 is nothing but a paper transaction and the same cannot be acted upon ? 2. The Ist Appellate Court has failed to take into consideration that the allotment letter was issued by the Prescribed authority under the Pepsu Utilization Surplus Area Scheme and being a Statutory order, it cannot be terms as a paper transaction ? 3. Whether the Ist Appellate Court has completely R.S.A. No. 427 of 1993 12 misread the evidence in record qua the allotment made in favour of the predecessor-in-interest of the appellant, namely, Dhanpat son of Jhandu by coming to a finding that the same is not a valid document ? 4. Whether the Ist Appellate Court is justified in law in reversing the well reasoned findings of the trial Court with regard to allotment of land in favour of Dhanpat son of Jhandu without dealing with the evidence discussed by the trial Court ? 5. Whether the Ist Appellate Court has failed to take into consideration that it was admitted case of the parties that the land in the hand of one Manga son of Harnarain, who was a big landlord was declared surplus and the same was allotted to different persons including Ram Kishan and Maha Singh, defendants but also to Dhanpat son of Jhandu. The case of Maha Singh and Ram Kishan was that the suit land was allotted to them whereas it was the case of the appellant that the same was allotted to Dhanpat son of Jhandu. Respondent brought on record Ex. D6 order of allotment in favour of Dhanpat showing that the suit land was allotted to him whereas Ex. D7 order of allotment in favour of Ram Kishan showed that different land was allotted to him. In view of the admitted position, whether the finding of Ist Appellate Court in this regard is sustainable in law ? 6. Whether the Ist Appellate Court after having recorded a finding that the agreement dated 7.5.1983 Ex. DW2/A, copy of sale-deed Ex.D-3 dated 2.8.1973 and the statements of scribe, R.S.A. No. 427 of 1993 13 attesting witnesses etc. go to show that Dhanpat is not speaking the truth that he never executed the sale deed in favour of the appellant, yet discarding the sale deed and agreement and thereby reversing the well considered findings of the trial Court in this regard? 7. Whether the Ist Appellate Court in law could hold that the sale deed Ex. D3 dated 2.8.1973 cannot be taken to be a proved document because Dhanpat son of Jhandu who executed the sale deed has denied that the same was ever executed by him. In law, it was not necessary for the appellant to prove the signatures / thumb impressions of Dhanpat son of Jhandu on the sale deed when the appellant has proved the sale deed and agreement in accordance with Section 68 of the Evidence Act by examining not only the scribe but also attesting witnesses to the sale deed. The Ist Appellate Court nowhere recorded a finding that the statement of said witnesses is not believable or they were not telling the truth ? 8. Whether Ist Appellate Court is justified in law in dismissing the counter claim filed by the appellant seeking possession of the land allotted to Dhanpat son of Jhandu from whom the appellants purchased it by a registered sale deed for a valuable consideration and that too when the appellants have conclusively proved on record that the suit land was allotted by the Prescribed Authority under the Pepsu Utilization Surplus Areas Scheme to vendor of the appellants ? In support of the first substantial question of law Mr. Amit R.S.A. No. 427 of 1993 14 Jhanji, learned counsel appearing on behalf of the appellants referred to document Ex.D6 which was copy of the allotment receipt. In the said allotment receipt the property in dispute was shown to be allotted to Dhanpat the vendor of appellant-defendant, however, against this receipt the learned counsel for the respondent placed reliance on the allotment letter Ex.P2 vide which the property in dispute is shown to have been allotted to the plaintiff-respondent. In pursuance to the letter of allotment the Collector (Agrarian) also handed over the possession of the land to the plaintiff. The contention of the learned counsel for the appellant that Ex.D6 was in fact an allotment letter cannot be accepted as Ex.P2 is subsequent in time and passed by the Collector. The substantial question of law, thus, deserved to be answered against the appellant-defendant. Mr. Amit Jhanji, learned counsel appearing on behalf of the appellant also contended that the finding recorded by the learned lower appellate Court is outcome of misreading evidence as the learned lower appellate Court has ignored the documentary evidence Ex. D-5 which showed the allotment of land in favour of Dhanpat. However, this plea also cannot be accepted as the documentary evidence brought on record proved the fact that it was the plaintiff respondent who was allotted the land and possession in pursuance to the allotment was also given to the plaintiff. The documentary evidence coupled with the admission by Dhanpat that he was never allotted any land it is difficult to hold that the judgment and decree passed by the learned lower appellate Court is outcome of misreading of evidence. The learned counsel for the appellant also contended that the R.S.A. No. 427 of 1993 15 learned lower appellate Court was not justified in reversing the well reasoned judgment of the learned trial Court as it could not be said that the findings were not based on any evidence or perverse. This contention of the learned counsel for the appellant also cannot be accepted. Once it is shown on record that relevant evidence is ignored and irrelevant is taken into consideration by a Court, it is always for the appellant to correct the error. The learned lower appellate Court is final Court of finding of fact and can always record the finding contrary to that of trial Court by giving good and valid reasons to differ with finding recorded, that is what has been done in the present case. It was proved on record that the Collector had allotted the land in dispute to the plaintiff / respondent coupled with the admission by Dhanpat that he was never allotted any land, were good and sufficient reasons that the learned lower appellate Court to have reversed the findings. It is to be noticed that a finding of fact on appreciation of evidence on record has been recorded and no fault can be found. Mr. Amit Jhanji, learned counsel appearing on behalf of the appellant also contended that once it was not in dispute that Manga s/o Harnarain was a big landlord and his land was allotted to different persons including Ram Kishan and Maha Singh defendants and also to Dhanpat son of Jhandu then the document Ex. D-6, brought on record showing allotment in favour of Dhanpat could not be ignored to decree the suit filed by the plaintiff respondent, as under Ex. D-7 that Ram Kishan was allotted different land. There is no force in this contention also. The documentary evidence brought on record clearly shows that in fact in the letter of allotment to Dhanpat was for different land than R.S.A. No. 427 of 1993 16 in dispute and admittedly the possession of the land allotted to the plaintiff respondent i.e. the disputed land was also given. The contention of the learned counsel for the appellant is that the evidence of Dhanpat and attesting witnesses are liable to be ignored as of no consequence. Even if for the sake of argument the sale deed Ex. D-3 were taken to be admissible in evidence then also it could not pass on any title to the defendants / appellant with respect to the land in dispute. It is for the appellant to have enforced the said agreement qua the allotted land if permissible in law. The learned lower appellate Court was justified in law in dismissing the counter claim filed by the appellant as the land was not proved to have been allotted to Dhanpat son of Jhandu. The substantial questions of law are answered against the appellant / defendants. Consequently, the appeal is ordered to be dismissed but with no order as to costs. March 21, 2009 ( VINOD K. SHARMA ) 'sp' JUDGE