R.S.A. No. 2887 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2887 of 2007 (O&M) Date of Decision : 20.3.2009 Amar Chand & others .......... Appellants Versus Kastur Chand & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Adarsh Jain, Advocate for the appellants. Mr. Akshay Bhan, Advocate and Mr. Santosh Sharma, Advocate for respondents No. 21 to 28. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 10.12005 and 13.8.2007 passed by the learned Courts below vide which suit filed by the plaintiffs for declaration with consequential relief of permanent injunction stands dismissed. The plaintiffs brought a suit for declaration with a consequential relief of permanent injunction claiming themselves to be owner in joint possession of agricultural land measuring 12 Kanal-11 Marlas situated in the revenue estate of Ferozepur Jhirka, Tehsil F.P. Jhirka, District Gurgaon, they claimed to be owner in possession of ½ share and remaining ½ share was said to be owned and possessed by defendant No.13 and his brothers. R.S.A. No. 2887 of 2007 2 The suit was contested wherein a plea was raised that the plaintiffs were not in possession of the suit property and therefore they were not entitled to the relief claimed. On the pleading of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiffs are in possession of the suit land to the extent of ½ share as claimed ? 2. Whether the sale deed under challenge is executed by defendant No.4 to 9 in favour of defendants no. 10 to 12 are illegal null and void and not binding upon rights of plaintiffs, if so its effect ? OPP 3. Whether plaintiffs are entitled to decree for declaration and permanent injunction as prayed for ? OPP 4. Whether suit is within limitation ? 5. Whether suit is not maintainable in the present form ? OPD 6. Whether defendant No. 10, 11 and 12 are bona fide purchasers for a valuable consideration without notice ? OPD 7. Whether defendant No. 10 to 12 are in lawful possession of the suit property ? OPD 8. Whether defendant No. 10 to 12 have been spent an amount of Rs. 2 lacs on raising of construction etc. , over the suit property as claimed in para No. 6 of the P.O., if so its effect ? OPD 9. Whether suit is false and frivolous to the knowledge and notice of the plaintiffs ? OPD 10. Whether suit is under valued ? OPD 11. Relief.” R.S.A. No. 2887 of 2007 3 However, on appreciation of evidence on record the learned Courts below have non-suited the appellants by holding as under :- “11, It may be mentioned that defendant Nos. 5 to 9 vide sale deed Ex.D-9 sold area measuring 1 Kanal 7 marla in favour of Dharambir etc., vide registered sale deed dated 11.3.1992 for a consideration of Rs. 20,000/- and mutation on the basis of this sale deed Ex. DB was sanctioned in favour of Dharambir etc. Then Dharambir, Jagjiwan Ram etc., sold the land in question purchased by them in favour of defendant Nos. 11 and 11 namely Wazida and Masruman vide sale deed Ex. D6 mutation of which was sanctioned and copy of the mutation is Ex. D14. This sale deed Ex.D6 is dated 26.8.92 for consideration of Rs. 25,000/-. Then it has also transpired from the evidence adduced on the file that Roop Chand defendant No.4 has sold land measuring 1 kanal 7 marla in favour of Subhash Chand defendant No.12 for a consideration of Rs. 25000/- vide sale deed dated 22.9.92 which is Ex.D8 and mutation sanctioned on the basis of the sale deed Ex.D15. It is pertinent to mention that in these sale deeds it is specifically mentioned that possession has been delivered to the vendees. The plaintiffs or their predecessors are not proved in possession of the suit land at any point of time as is clear from the revenue records for the last about 20 years. 12. It is well settled that plaintiff is to prove his case by cogent evidence. Plaintiff is to stand upon his own legs. Plaintiff was not given a decree for exclusive possession in the year n1972 also. Contention of ld. Counsel for the appellants to this effect that possession goes with the title is also not having merit because theland is not vacant land. Only in case of vacant land R.S.A. No. 2887 of 2007 4 possession goes with the title. In this case it is proved from the evidence adduced on the file that the defendant vendees have raised construction and have spent a huge amount on raising constructions. Thus the possession of the defendant vendees is proved over the suit land. They are also proved bonafde purchaser for valuable consideration. 13. In this case plaintiff has not prayed for a decree for possession and as urged by ld. Counsel for the defendant/ respondents, suit of the plaintiff is not maintainable. Faced with this argument ld. Counsel for the plaintiff / appellants has submitted that court can grant relief to the plaintiffs as is deemed proper as envisaged by provisions of order 7 Rule 7 CPC and in support of his contention Ld. Counsel for the appellants has cited before me authority Sardari lal Vs. Kartar Singh and others 1998(2) PLJ 55, U.P. State Brassware Corpn. Ltd. And another Vs. Uday Narain Pandey (2006) 1 Supreme Court cAses 479. It is also submitted by ld. Counsel for the plaintiff / appellants that in view of the authority Tara Chand vs. Mahain and others AIR 1934 Lahore 851 and Habib Fatma and others Vs. Mohd. Shafi 1989 (2) CLJ (C, Cr. & Rev.) 593, present suit of the plaintiff is maintainable and plaintiff need not sue for possession as the defendants have raised building quickly. But these authorities to not apply to the present case. Defendants are proved in established possession of the suit land from the oral as well as documentary evidence and thus mere suit for declaration and permanent injunction instituted by the plaintiff/ appellants is not maintainable when the plaintiffs are not proved in possession of the suit property. Authorities Lehna Singh and others Vs. Ram Singh and others 1981 R.S.A. No. 2887 of 2007 5 PLJ 470, Jeeto Vs. Santa Singh 2006(2) RCR (Civil) 547, Sita Ram Vs. Hari Kishan 1999(1) RCR (Civil) 602, and Saudagar Singh Vs. Harnam Kaur (deceased) now Rep. By Lrs and others 1987 PLJ 248 cited by Ld. Counsel for the defendant / respondents may be looked into.” The learned counsel for the appellants contends that this appeal raised the following substantial questions of law for consideration by this Court :- 1. Whether the learned Courts below committed an error in non-suiting the plaintiff / appellants in view of the previous judgment and decree which was merely for declaration and, thus, not executable ? 2. Whether judgment of the Civil Court declaring plaintiffs to be owner and in possession of the suit land is not binding against the defendants and their successors and vendees ? 3. Whether the learned lower appellate Court committed an error in relying upon and taking cognizance of revenue entries which were already declared null and void, by the learned Civil Court in the previous proceedings ? In support of the substantial questions of law, referred to above, the learned counsel for the appellants contends that in this case the learned Courts below have failed to notice that in the previous litigation the predecessor-in-interest of plaintiff and that of defendant, the dispute stood settled vide which the plaintiffs were held in possession in a suit for injunction. The learned Courts below committed an error in relying upon the R.S.A. No. 2887 of 2007 6 revenue entries which ought to have been corrected in view of the decree passed. It is also the contention of the learned counsel for the appellant that the learned Courts below failed to notice, that the previous decree, was merely for declaration which was not executable, thus, wrongly non-suited the appellant by holding that plaintiff could have executed the previous decree. On consideration, of the matter I find no force in the contention raised by the learned counsel for the appellants. The previous judgment and decree between the parties which was exhibited as Ex.P11. This was decree for injunction restraining the defendants from interfering in joint possession and, therefore the second suit for declaration and injunction was rightly held to be not maintainable as the plaintiffs has remedy to invoke the provisions of Order 21 Rule 32 and therefore it could not be said that the previous decree was not executable as contended. The learned Courts below also rightly held that the revenue entries were to be corrected by the plaintiff / appellants under the Provisions of Land Revenue Act on the basis of decree, if so warranted. The substantial question of law framed do not arise for consideration by this Court, in this appeal. No merit. Dismissed. 20.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE