R.S.A.No. 276 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 276 of 2011 (O&M) Date of decision: 19.1.2011 Sahib Ram Sehrawat and others ......Appellants Versus Jaswant Kumar Goel and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.L.Sarin, Sr. Advocate with Ms.Alka Sarin, Advocate, for the appellants. **** SABINA, J. Plaintiffs had filed a suit for permanent injunction that the defendants be restrained from interfering in their peaceful possession over the property in dispute The case of the plaintiffs, in brief, was that the plaintiffs were owners in possession of residential house situated near Sector 17, Gurgaon bearing Khasra Nos. 11//23/2(2-4), 23/1/2(0-16), 18/2/1(0-10), 22// 3/1/2(0-3). The said house had been gifted by defendant No.3 to plaintiff No.3 vide gift deed dated R.S.A.No. 276 of 2011 (O&M) 2 11.7.1984 except the land bearing khasra Nos. 11//23/1/2 (0-16), 18/2/1(0-10). After great efforts, the land which did not form part of the gift deed, was got released from the Government and entries were incorporated in the jamabandi in this regard vide reports dated 19.5.1997 and 27.11.1998. The plaintiffs had paid ` 3,60,000/- to defendant No.3 vide cheques and it was agreed between the plaintiffs and defendant No.3 that the land mentioned in para No.2 of the plaint would be transferred in the name of plaintiff No.1. The land mentioned in para No.2 of the plaint was part and parcel of the house for access, sewerage and water pipes etc. The plaintiffs had become owner of the land by way of adverse possession in case defendant No.3 did not treat ` 3,60,000/- towards sale consideration. Defendants by way of counter claim averred that defendant No.3 was owner in possession of 1 kanal 6 marlas of land. The land bearing killa No. 18/2/1 was earlier under acquisition but was later released by the Government and this land was in the form of a plot and land of killa No. 23/1/2 was banjar kadim in nature. Defendant No. 2, on the basis of general power of attorney, had sold the land bearing khasra No. 11//18/2/1(0-10) to defendant No. 1 vide sale deed dated 17.10.1997 for a consideration of ` 62,500/-. The plaintiffs in the absence of defendant No.1 had raised small constructions although they had no right to do so. The counter claimant was owner of the said land. In reply to the counter claim filed by the defendants, R.S.A.No. 276 of 2011 (O&M) 3 plaintiffs submitted that defendant No.3 had never executed any power of attorney in favour of defendant No.2. The price of the land was not less than ` 15,000/- per square yard and hence, the land could not be sold for ` 62,500/-only. The plaintiffs were receiving the rent from the shop keepers. Defendant No.1 was in the knowledge of the construction raised by the plaintiffs. Defendant No.1 was born in the year 1905 and went to England at the age of 25 years. Defendant No.3 purchased 4 kanals 3 marlas of land vide sale deed dated 12.3.1964 from Kirpa Ram. Defendant No.3 raised construction on the said land under the supervision of plaintiff No.1. As per the Aksijra land bearing khasra No.11//23/1/12 was surrounded by all the khasra numbers mentioned in the gift deed dated 11.7.1984. The plaintiffs were using the passage measuring 7 meters. The old construction was demolished in the year 1984 and since then the plaintiffs were in possession of the suit land. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiffs are owners in possession of residential house known as Dorset Cottage since 1984 comprising of lands detailed in para No.1 of the plaint? OPP. 2.Whether the residential house and land except killa No.23/1/2 and 18/2/1 was gifted by the defendant No.3 to plaintiff No.3 vide alleged gift deed dated 11.7.1984 R.S.A.No. 276 of 2011 (O&M) 4 OPP 3. Whether the land comprised in killa No.18/2/1 and 23/1/2 was got released from Government by the plaintiff, if so to what effect? OPP 4.Whether plaintiffs had filed a civil suit? If so for what relief to what effect? OPP 5. Whether any construction was demolished from the suit land by the HUDA ? OPP 6. Whether plaintiffs had paid ` 36,00,000/- to defendant No.3 on the agreement of transferring the land mentioned in para No.2 of plaint in the name of plaintiff No.1 ? OPP 7. Whether land mentioned in para No.2 of the plaint is integral part and parcel of house for access as way, sewerage and water pipe etc? OPP 8. Whether the plaintiffs had got exclusive and peaceful possession of the land in dispute? OPP 9. If issue No.8 is proved, whether plaintiffs have become owner of the land by way of adverse possession? OPD 10. Whether plaintiff No.1 is GPA of the plaintiff No.2 and No.3? OPP 11. Whether suit is not maintainable in the present form? OPD 12. Whether plaintiffs are estopped by their own act? R.S.A.No. 276 of 2011 (O&M) 5 OPD 13. Whether the plea of adverse possession is not available to the plaintiff? OPD 14. Whether defendant No.3 permitted the plaintiff No.2 to took after the suit land as his licencees and when plaintiffs No.1 and 2 became dishonest, their licence was terminated orally by defendant No.3 ? OPD 15. Whether plaintiffs have concealed the material facts? OPD 16. Whether amount of ` 3,60,000/- was given as donation as Lokayuata a welfare society headed by defendant No.3? OPD 17. Whether defendant No.1 counter claimant is owner in possession of 10 marlas of land of killa No. 18/2 by purchase from defendant No. 3 through his GPA defendant No. 2 for a sale consideration of ` 62,500/- vide registered sale deed bearing No.9281 dated 17.10.1997? OPD 18. Whether the plaintiffs in the absence of defendant No.1 constructed 4 small kothries/rooms on the land of defendant No.1 in the year 1998 illegally and without right, title or interest? OPD 19. Whether counter claimant is entitled to decree for R.S.A.No. 276 of 2011 (O&M) 6 mandatory injunction directing defendant to demolish the construction and to decree for possession against the plaintiff ? OPD 20. Relief.” Vide order dated 11.1.2003 suit filed by the plaintiffs was dismissed as withdrawn. The trial Court decreed the counter claim set up by defendant No.1 vide judgment and decree dated 15.10.2010. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed vide judgment and decree dated 23.12.2010 passed by Additional District Judge, Gurgaon. Hence, the present appeal by plaintiffs No.2 and 3. Learned senior counsel for the appellants has submitted that the first Appellate Court had failed to appreciate the arguments raised by the appellants. It was not established on record that Mulakhraj Anand, vendor, was the owner of the property in dispute. No reliance could be placed on the copy of the jamabandi as the same was not a document of title. The plaintiffs were in possession of the suit land and defendants were required to establish their ownership. The plaintiffs could not be treated as licencee. In support of his arguments, learned senior counsel has placed reliance on Ude Singh and others vs. Ram Chander 2009 (1) RCR (Civil) 41, wherein, in para 11, it was held as under:- “In view of the above circumstances the judgment of the R.S.A.No. 276 of 2011 (O&M) 7 Lower Appellate Court is not only contrary to the evidence on record but also liable to be set aside on the above two substantial questions of law : 1. That the presumption of entries in jamabandi will not apply insofar the constructed portion over the land is concerned. 2. The plaintiff is estopped from reclaiming the possession after the receipt of the entire sale consideration and delivery of possession notwithstanding the fact that there was no registered document conveying the title.” Learned senior counsel has further placed reliance on Santosh Hazari vs. Purushottam Tiwari(deceased) by Lrs 2001 (3) SCC 179, wherein, in para 15, it was held as under:- “A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession R.S.A.No. 276 of 2011 (O&M) 8 and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a devise or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain R.S.A.No. 276 of 2011 (O&M) 9 conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai) The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while R.S.A.No. 276 of 2011 (O&M) 10 reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” Learned senior counsel has next placed reliance on Karnataka State Road Transport Corporation vs. Smt. Asmathunnisa and others PLR Vol.CXXVII-(2001-1) 234, wherein, it was held as under:- “4. Learned counsel for the appellant vehemently R.S.A.No. 276 of 2011 (O&M) 11 contended that he had many arguable points to be urged in the first appeal before the High court which has dismissed the same without giving any reason and without considering all the points in the appeal. The impugned order of the High court reads as under :- “Heard. No grounds. Rejected.” 5. Learned counsel for the appellant is right when he contends that the High Court in first appeal has not considered all the relevant points and has not come to a reasoned conclusion for agreeing with the trial Court. We find that the appeal was not disposed of in accordance with law. Only on this short ground, without expressing any opinion on the merits of controversy between the parties, the appeal is allowed. The impugned order is set aside. First Appeal No. 813 of 1995 is restored to the file of the High Court with a request to re-decide the same on merits after hearing the parties and by writing a reasoned order.” Learned senior counsel has also placed reliance on Smt. Harjit Grewal and others vs. Dr.Vinod Kumar Batra and others PLR Vol.CLVIII (2010-2) 235, wherein, it was held as under:- “Held, that the Learned lower appellate Court being court of appeal was bound to answer all the issues framed, and in case, any of the issues was not pressed in appeal, the R.S.A.No. 276 of 2011 (O&M) 12 same should be recorded. The judgment and decree passed by the learned lower appellate court, therefore, cannot be sustained even on the ground that the learned lower appellate Court has failed to give issue-wise finding. Though in normal circumstances, this court could have called for report from the learned appellate Court on additional issues but keeping in view the fact that the learned lower appellate Court has not recorded any issue- wise finding on other issues also, the judgment and decree passed by the learned lower appellate Court cannot be sustained. The learned lower appellate Court committed an error in not recording a finding on the additional issue and also in not recording issue-wise finding while deciding the appeal.” After hearing learned senior counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the plaintiffs had filed a suit that the defendants be restrained from dispossessing them from the suit property in dispute. The suit filed by the plaintiffs was got dismissed as withdrawn. The defendants had filed counter claim and by way of the same they had sought possession of the suit land. The point in controversy is small. The thrust of the arguments raised by learned senior counsel is that Mulkhraj Anand-defendant No.3 from whom R.S.A.No. 276 of 2011 (O&M) 13 defendant No.1 had purchased the suit property was not owner of the suit property. In this regard, copy of the jamabandi for the year 1991- 92 was placed on record as Ex.C-15 by the counter-claimant. Admittedly, as per the said jamabandi, Mulkh Raj Anand was shown owner in possession of khasra No. 11//23/1/2(0-10), 18/2/1 (0-1) total land measuring 1 kanal 6 marlas. A presumption of truth is attached to the entry in the jamabandi. However, the said entry was not successfully rebutted by the plaintiffs. The plaintiffs could not establish that the entry in the jamabandi Ex.C-15 was a stray entry by producing previous or later jamabandis on record. Merely because in the sale deed Ex.C-3 the suit property was not mentioned does not lead to the inference that defendant No.3 was not owner of the suit property. Defendant No.1 was required to place on record some documents which would establish the ownership of vendor Mulakhraj Anand. The said burden was duly discharged by defendant No.1 by proving on record the copy of jamabandi Ex.C-15. During the course of arguments, learned senior counsel could not tell as to who was the owner of the property in dispute. The suit property bears a khasra number and entries qua ownership were liable to be reflected in the jamabandi. In these circumstances, the entries in the jamabandi Ex.C-15 cannot be brushed aside qua ownership of Mulakhraj Amand, who had executed the sale deed in favour of defendant No.1 on 17.10.1997 through his attorney. Plaintiffs had failed to establish that they had become owners of the suit property by way of adverse R.S.A.No. 276 of 2011 (O&M) 14 possession. In these circumstances, the plaintiffs were, thus, in unauthorised possession of the suit property. The first appellate Court erred in holding that the plaintiffs were licencees as the said plea had not even been taken by the plaintiffs. Hence, there is no force in the arguments raised by the learned senior counsel for the appellants. The judgments relied upon by learned senior counsel for the appellants fail to advance the case of the appellants as these are based on different facts. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 19, 2011 anita