RSA No.2725 of 2007 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2725 of 2007 Date of Decision: 13 - 7 - 2011 Pawan Kumar ....Appellant v. Ran Singh and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Ashish Gupta, Advocate for Mr.Vikram Singh, Advocate for the appellant. Mr.Adarsh Jain, Advocate for respondent No.1. None for respondent No.3. *** KANWALJIT SINGH AHLUWALIA (ORAL) The present regular second appeal has been filed by plaintiff No.1 to the suit. He had instituted a suit for joint possession with declaration that judgment and decree dated 10.6.1988 passed in Civil Suit No.956 of 1988, titled as `Ram Singh v. Amar Singh' for the suit property, description and detail of which has been given in the head note of the suit, is null and void, ineffective, inoperative and not binding on the plaintiffs. It was pleaded in the suit that plaintiffs are co-sharers of Tholla Hukami of Village Chhichharana and in the list of Malkans (owners), plaintiffs are RSA No.2725 of 2007 [2] recorded as co-sharers. It was further pleaded that Amar Singh son of Churia resident of Village Chhichharana had expired after passing of judgment and decree dated 10.11.1988 in Civil Suit No.956 of 1988. It was pleaded that judgment and decree was not binding upon them, as it was obtained due to fraud and in collusion between Ran Singh - defendant No.3 to the suit and Amar Singh father of defendants No.1 and 2. It was further pleaded that both Ran Singh and Amar Singh were not co-owners and had no share in Tholla Hukami. On issuance of summons, defendant No.3 - Ran Singh caused appearance and filed the written statement. It was pleaded by him that plaintiffs were in knowledge of judgment and decree dated 10.11.1988 since long and even otherwise possession of defendant No.3 was declared hostile for the last more than 12 years and he had become owner by way of adverse possession. Defendant No.3 also stated that plaintiffs were never in possession of the suit land and all revenue entries are in the name of Ran Singh defendant No.3. However, nobody caused appearance on behalf of defendants No.1 and 2. The trial Court had drawn the following issues:- 1. Whether the judgment and decree dt. 10.6.88 passed in civil suit no.956/88 is null and void, ineffective, inoperative and not binding qua the rights of the plaintiffs regarding the land as detailed and described in the head note of the plaint? OPP 2. Whether plaintiffs are entitled for joint possession of the suit property on the grounds as alleged in the plaint? OPP 3. Whether the plaintiffs have no locus standi to file the present suit? OPD 4. Whether the suit of the plaintiffs is not maintainable in the present form? OPD RSA No.2725 of 2007 [3] 5. Whether the plaintiffs have no cause of action to file the present suit?OPD 6. Whether answering defendant has become owner by way of adverse possession of the suit property? OPD 7. Relief. Appellant-plaintiffs relied upon copy of the jamabandi for the year 1992-93, Ex.P1, copy of judgment/order dated, Ex.P2, copy of the decree sheet dated 10.6.1988, Ex.P3 and list of Malkan Tholla Hukami of Village Chhichharana Hadbast No.55 as Mark `A'. The trial Court held that the decree dated 10.6.1988 required registration and the suit between Ran Singh and Amar Singh was collusive one. The trial Court further held that adverse possession of Ran Singh – defendant No.3 is not proved. The Court further held that the decree suffered by Amar Singh in favour of Ran Singh in Civil Suit No.956 of 1988 was null and void, ineffective, inoperative and not binding on the plaintiffs. Aggrieved against the same, Ran Singh – defendant No.3 filed an appeal which was accepted. Hence, the present Regular Second Appeal. The lower Appellate Court allowed the application filed by defendant No.3- Ran Singh (appellant therein) under Order 41, Rule 27 CPC and permitted him to examine Ranjit Singh, Patwari DW-1 to prove the list of proprietors Ex.DW-1/A. The lower Appellate Court placed implicit reliance on list of proprietors Ex.DW-1/A to hold that Amar Singh son of Chuhria was a co-sharer in Tholla Hukami. The Court further placed reliance on mutation No.1084 Ex.D2 to hold that Ran Singh – defendant No.3 was a co-sharer in the joint land, as per decree dated 10.6.1988 passed by Shri Anil Kumar Bimal, the then Sub Judge Ist Class, Panipat. The RSA No.2725 of 2007 [4] lower Appellate Court held that the plaintiffs have failed to explain their share on the land in Tholla Hukami. Having discussed the entire evidence, the lower Appellate Court returned the following findings:- “15. ..... As discussed earlier impugned decree dated 10.6.1988 binds the parties interse. It is not binding on the right, title or interest of the plaintiffs in the suit land. Qua their right, title and interest in the suit land, impugned decree is liable to be avoided. The plaintiffs are not under an obligation to challenge the impugned decree on the grounds that it has lessened their share in the joint land because the same is not binding on them and it is liable to be avoided qua their share in the suit land. As discussed earlier the plaintiffs have failed to disclose in the suit their share in the joint land of Tholla Hukmi. They have further failed to prove on record as to how much excess land was transferred by Amar Singh deceased in favour of defendant no.3-Ran Singh.” Learned counsel for the appellant has failed to explain as to how he is aggrieved against the aforesaid finding, when it has been specifically held by the lower Appellate Court that decree suffered by Amar Singh will bind his successors and in no way affect the rights of the appellant-plaintiff. Counsel for the appellant has also failed to dislodge the fact that Amar Singh indeed was a co-sharer in Tholla Hukami as per Ex.DW-1/A. Counsel for the appellant has laid emphasis that this Court should rely upon list of Malkans Tholla Hukami of Village Chhichharana Hadbast No.55, Mark `A' to hold that Amar Singh was not a co-sharer in Tholla Hukami. The list of proprietors has not been proved by anybody. No witness has been examined. Therefore, mere list of Malkans Tholla Hukami of Village Chhichharana tendered as Mark `A' could not be taken into consideration. RSA No.2725 of 2007 [5] The lower Appellate Court also relied upon Som Dev and others v. Rati Ram and another, 2007(1) LJR 75 (SC) to hold that a compromise/consent decree does not require registration. After hearing learned counsel for the parties, this Court is of the view that the findings returned by the lower Appellate Court suffer from no infirmity and are based on appreciation of evidence. No question of law, much less, the substantial one neither has been formulated nor arises for consideration of this Court. In the grounds of appeal, the proposed substantial question of law that the learned Appellate Court had acted perversely and has ignored the material piece of evidence cannot be accepted, as this Court has held that no reliance on list of Malkans Tholla Hukami Mark `A' can be placed without any mode of proof. Hence, no interference is warranted. The present appeal is hereby dismissed. ( KANWALJIT SINGH AHLUWALIA ) July 13, 2011. JUDGE RC