RSA No.506 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.506 of 2009 (O & M) Date of Decision: 18.04.2011 Chandgi Ram ……Appellant Versus Rohtas and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Rajesh Sethi, Advocate for the appellant. Mr. G. P. Singh, Advocate for respondent No.1. L.N. MITTAL, J (ORAL) Defendant No.1-Chandgi Ram, having failed in both the Courts below, is in second appeal. Suit was filed by Dhoop Singh-plaintiff No.1 (since deceased and represented by his son Rohtas-respondent No.1) and Sarla Devi-plaintiff No.2/respondent No.2 against defendant No.1- appellant and others alleging that plaintiff No.1 has purchased 154 square yards land depicted by letters ‘ABCD’ in the site plan vide sale deed dated 09.11.1979 and plaintiff No.2 has purchased land measuring 150 square yards depicted by letters ‘CDEF’ in the site plan vide sale deed dated 03.12.1980 from defendant Nos.3 and 4, who had total share of 721 square yards i.e. 642 square yards being RSA No.506 of 2009 (O & M) - 2 - 1/8th share in khasra Nos.5221/5222/1317 (0-16) and 3688/1344 (0- 1) and 79 square yards being 1/12th share in khasra No.5230/5239/1344 measuring 6 Biswas 5 Biswansis. The plaintiffs accordingly claimed to be owners in possession of the aforesaid land purchased by them and claimed permanent injunction restraining the defendants from dispossessing the plaintiffs therefrom and from interfering in their possession thereon. Alternatively, it was also prayed that if the suit area was not owned and possessed by defendant Nos.3 and 4 at the relevant time, then plaintiffs be adjusted on equivalent area belonging to defendant Nos.3 and 4 out of land of aforesaid khasra numbers. Another alternative prayer was that if mutual partition amongst cosharers of the aforesaid joint land is not proved, then decree for joint possession of the joint land be passed in favour of the plaintiffs. Defendants No.1 and 2 contested the suit and inter alia pleaded that defendant Nos.3 and 4 and their predecessor had already sold their share in the joint land before the sale deeds in favour of the plaintiffs and, therefore, the sale deeds in favour of plaintiffs did not confer any right on them. Defendant Nos.1 and 2 claimed to have purchased land from Makhan Lal out of khasra No.5230/5239/1344 and did not claim any right, title or interest in the other two khasra numbers. Defendant Nos.1 and 2 claimed to be in actual possession of the land purchased by them. Various other pleas were also raised. RSA No.506 of 2009 (O & M) - 3 - Learned Civil Judge (Junior Division), Gurgaon vide judgment and decree dated 26.09.2006 decreed the plaintiffs’ suit for second alternative relief of joint possession of the suit land. First appeal preferred by defendant No.1 and legal representatives of defendant No.2 jointly has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated 26.08.2008. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Defendant Nos.1 and 2 have miserably failed to prove that defendant Nos.3 and 4 had sold land in excess of their share prior to sale in favour of the plaintiffs. On the other hand, sale deeds in favour of the plaintiffs executed by defendant Nos.3 and 4 have been proved. Perusal of revenue record produced in evidence reveals that Chandan Lal and Makhan Lal both sons of Hardwari were cosharers in the land of all the three khasra numbers in question along with some other persons. Defendant Nos.3 and 4 are daughters and legal heirs of Chandan Lal. Plaintiffs have purchased land from defendant Nos.3 and 4 whereas defendant Nos.1 and 2 have purchased land from Makhan Lal. Defendant Nos.1 and 2 have not produced sale deeds in evidence to depict that defendant Nos.3 and 4 or their predecessor Chandan Lal had already sold the land of their share prior to sale of land in favour of the plaintiffs. RSA No.506 of 2009 (O & M) - 4 - It may be added that pursuant to order dated 13.09.2010 passed by this Court, counsel for the appellant has shown a chart prepared by him regarding land sold by Chandan Lal and by defendant Nos.3 and 4. The said chart reveals that Chandan Lal had total share of 870 square yards in the three khasra numbers out of which he sold 210 square yards and 150 square yards land by way of two sale deeds. Thereafter defendant Nos.3 and 4 sold 154 square yards land to plaintiff No.1, 180 square yards land to one Smt. Maya and 150 square yards land to plaintiff No.2. Consequently, the land sold to the plaintiffs was within the share of defendant Nos.3 and 4. The chart shown by learned counsel for the appellant reveals that after sale deeds in favour of the plaintiffs, defendant Nos.3 and 4 further sold 200 square yards land and 75 square yards land by way of two subsequent sale deeds. Consequently, excess area if any sold by defendant Nos.3 and 4 would be covered by the said subsequent sale deeds whereas the land sold to the plaintiffs was within the share of defendant Nos.3 and 4 even according to the chart shown by counsel for the appellant. It may also be added that defendant Nos.1 and 2 did not produce in evidence even the sale deeds vide which Chandan Lal sold 210 square yards land and 150 square yards land nor the sale deed vide which defendant Nos.3 and 4 sold 180 square yards land to Maya. Thus examined from any angle, it cannot be said that the land sold to the plaintiffs was in excess of the share of defendant Nos.3 and 4. RSA No.506 of 2009 (O & M) - 5 - Faced with the aforesaid situation, learned counsel for the appellant contended that plaintiffs themselves did not step into the witness box and only son and attorney of plaintiff No.1 appeared as witness and from his testimony, it is not proved that plaintiffs are in possession of the suit land depicted by letters ‘ABCD’ and ‘CDEF’ in the site plan. However, this argument does not help the appellant because even the Courts below have not accepted the said claim of the plaintiffs and have granted decree for joint possession of the joint land. Decree for injunction as sought by the plaintiffs has not been granted, but alternative relief of joint possession has been rightly decreed. Learned counsel for the appellant also contended that appellant is concerned with khasra No.5230/5239/1344 only and out of this khasra number, defendant Nos.3 and 4 and their predecessor have sold land in excess of their share. It was contended that said khasra number is comprised of separate khewat than the khewat of the remaining two khasra numbers. However, perusal of jamabandis placed on record reveals that both Chandan Lal and Makhan Lal were cosharers in both khewats of all the three khasra numbers. Consequently, the aforesaid contention raised by counsel for the appellant cannot be accepted. As noticed hereinbefore, land sold by defendant Nos.3 and 4 and their predecessor was within their share insofar as sale deeds in favour of the plaintiffs are concerned. Consequently, RSA No.506 of 2009 (O & M) - 6 - plaintiffs’ suit for joint possession of the suit land has been rightly decreed. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below in favour of plaintiffs does not require interference in exercise of second appellate jurisdiction because the said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. The said finding is fully justified by the evidence on record and is supported by cogent reasons. Plaintiffs having purchased share in land from the cosharers in joint land have become cosharers in the said joint land and have, therefore, been rightly granted decree for joint possession of the joint land. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the instant second appeal is dismissed. (L. N. MITTAL) JUDGE 18.04.2011 A.kaundal