RSA No.1807 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1807 of 1985 Date of decision:18.03.2011 Sham Singh and others ...Defendants/Appellants Versus Kaka Singh and others ...Plaintiffs/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. G.S.Punia, Advocate, for the appellants. None for the respondents. -.- Jitendra Chauhan, J.\ CM No.1723-C of 2011 CM is allowed. Subsequent events are taken on record, subject to all just exceptions. Main case The present appeal is directed against the judgment and decree dated 10.5.1985 passed by the learned appellate Court, whereby the judgment and order dated 2.9.1983 passed by the learned trial Court was set aside and the suit of the plaintiff was dismissed. The brief facts of the present case are that the plaintiffs/respondents Kaka Singh and Hardwari, sons of Khushia, filed a suit for declaration to the effect that they had sold land measuring 6K-8M to RSA No.1807 of 1985 2 the defendants in the manner that Killa No.12/3 was transferred in toto, whereas the remaining area was to be transferred from Killa Nos. 9/1 and 8/2 adjoining Killa No.12/3. First it has been written in the sale-deed dated 8.56.1981 that Killa Nos. 12/3 and 8/2 will be transferred exclusively and rest of the area will be adjusted from Killa No.9/1. The plaintiff took the stand that they being uneducated and innocent persons came to know afterwards that Killa No.8/2 was adjacent to the road leading to the village school and therefore they refused to execute the sale-deed in that form and added a note in the said sale-deed to the effect that Killa No. 12/3 will be transferred exclusively, whereas rest of the area will be adjusted from Killa Nos. 9/1 and 8/2 adjoining, adjacent and parallel to Killa No.12/3. The plaintiffs further averred that the mutation No.4083 dated 12.6.1982 is wrong, illegal and ineffective against their rights. Kaka Singh and Hardwari filed suit for possession of 1K-15M out of Killa No. 8/2 and 9/1. The suit was contested by the defendants on the ground that the suit is not maintainable in the present from as the land in suit is a part of the joint khata and the adjustment could be made in partition proceedings. Accordingly, they made a prayer that the suit be dismissed. After framing of issues and allowing the parties to lead evidence, the trial Court vide judgment and decree dated 2.9.1983 dismissed the suit of the plaintiffs. Feeling aggrieved against the judgment and decree of the learned trial Court, the plaintiffs preferred an appeal, which was allowed by the Additional District Judge, Ludhiana, vide judgment and decree dated 10.5.1985. RSA No.1807 of 1985 3 Hence, the present appeal. Learned counsel for the appellants has submitted that during the pendency of the appeal, the entire land held by the original vendors i.e. plaintiffs/respondents stands sold to various people at different times as reflected in para 3 of the application, which is accompanied by an affidavit. Nobody has put in appearance on behalf of the respondents. I have heard the learned counsel for the appellant and perused the record. In view of the subsequent events and the partition made at the behest of defendant/appellant Sham Singh, it is established that the original vendors i.e. Kaka Singh and another sold the entire land comprised in Killa No.8/2 to the appellant. In the circumstances, no further adjudication on the matter is required and accordingly, the present appeal is allowed. The judgment and decree of the first appellate Court is set aside and judgment and decree passed by the learned trial Court is restored. The suit stands dismissed. However, it is made clear that as the matter is argued and decided in the absence of respondent, therefore, it is left open to the respondent to re-agitate the matter by filing review petition before this court, in case, the averments as mentioned in the affidavit filed by the defendant/appellant are found to be incorrect. 18.3.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter/ Yes / No