R. S. A. No. 1690 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1690 of 2009 Date of Decision : January 17, 2011 Sukhdev Singh and another .... Appellants Vs. Balwinder Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. J. S. Brar, Advocate for the appellants. Mr. Ravish Bansal, Advocate for Mr. Ashok Singla, Advocate for respondents no.1 and 2. Respondent no. 3 ex-parte. * * * L. N. MITTAL, J. (Oral) : Defendants no.2 and 3 Sukhdev Singh and Jagjit Singh (both brothers) are in second appeal having been defeated in both the courts below. Respondents no.1 and 2 Balwinder Singh and Chamkaur Singh (both brothers) filed suit against Baljit Kaur – respondent no.3 (defendant no.1) and against the appellants (defendants no.2 and 3) alleging that the R. S. A. No. 1690 of 2009 2 plaintiffs purchased 13 kanals 16 marlas land being share of joint land from Baljit Kaur – defendant no.1. The plaintiffs also alleged that as co-sharers, they are in exclusive possession of 19 kanals 07 marlas land out of the joint land. However, Ujagar Singh – father of defendant no.1 filed a collusive suit against defendant no.1, in which decree dated 03.02.2000 was passed in favour of Ujagar Singh. Defendants no.2 and 3, on the basis of registered Will of Ujagar Singh (since deceased), claimed to be his successors. The plaintiffs alleged that decree dated 03.02.2000 does not bind the plaintiffs, who were not party to the same. The said decree was also collusive between Baljit Kaur – defendant no.1 and her father – Ujagar Singh. Accordingly, plaintiffs sought declaration that they are owners of 13 kanals 16 marlas land out of joint land. They also sought permanent injunction restraining the defendants from dispossessing the plaintiffs from 19 kanals 07 marlas land of khasra nos. 28 min.(4-6), 28 min.(5-8) and 30 (9-13) being in their exclusive possession out of the joint land. Defendants no.2 and 3 contested the suit and alleged that vide decree dated 03.02.2000, Ujagar Singh was declared to be owner of 47 kanals 06 marlas land out of the joint land and on the death of Ujagar Singh, defendants no.2 and 3 have become owners thereof on the basis of registered Will of Ujagar Singh in their favour. It was alleged that earlier R. S. A. No. 1690 of 2009 3 decree dated 24.01.1994 in favour of Baljit Kaur against Ujagar Singh was fraudulent. Sale deed by Baljit Kaur in favour of plaintiffs was also denied. It was also denied that plaintiffs ever came in possession of the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Faridkot, vide judgment and decree dated 09.02.2006, decreed the plaintiffs' suit for declaration and permanent injunction. First appeal preferred by defendants no.2 and 3 against judgment and decree of the trial court stands dismissed by learned Additional District Judge, Faridkot vide judgment and decree dated 21.07.2008. Feeling aggrieved, defendants no.2 and 3 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Pursuant to decree dated 24.01.1994 in favour of Baljit Kaur – defendant no.1, mutation was sanctioned in her favour on 27.04.1994. Thereafter, she sold 13 kanals 16 marlas land, out of her share, to the plaintiffs vide registered sale deed dated 01.09.1994. Consequently, subsequent decree dated 03.02.2000 suffered by Baljit Kaur in favour of Ujagar Singh has no effect on the ownership of the plaintiffs over 13 kanals 16 marlas land purchased by them from Baljit Kaur. Plaintiffs were also not party to the decree dated 03.02.2000 and for this reason also, the said decree R. S. A. No. 1690 of 2009 4 is not binding on the plaintiffs and has no adverse effect on their rights in the suit land. Learned counsel for the appellants contended that according to sale deed Ex.P-1, vide which plaintiffs purchased 13 kanals 16 marlas land being 276/6032 share of 301 kanals 12 marlas joint land, possession of 13 kanals 16 marlas land only comprised of khasra nos. 31/2(1-19), 32/1(9-11) and 28(2-6) was delivered to the plaintiffs by vendor Baljit Kaur, but plaintiffs are now claiming their possession over 19 kanals 07 marlas land comprised of khasra nos. 28 min.(4-6), 28 min.(5-8) and 30 (9-13), but it is not explained as to how the plaintiffs got possession of this different and more land. On the other hand, learned counsel for the plaintiffs – respondents no.1 and 2 contended that plaintiffs are in actual cultivating possession of 19 kanals 07 marlas land, of which they have sought and been granted permanent injunction. Reference in this regard was made to Jamabandi for 1998-99 (Ex.P-6) and Khasra Girdawari (Ex.P-5) since Kharif 1994 till Rabi 1999, wherein plaintiffs have been recorded to be in possession of 19 kanals 07 marlas land claimed by them. I have carefully considered the rival contentions. Khasra Girdawari of 19 kanals 07 marlas land in question was corrected in favour of plaintiffs by Assistant Collector by way of contested R. S. A. No. 1690 of 2009 5 order. Plaintiffs have been recorded to be in exclusive possession of said 19 kanals 07 marlas land in Khasra Girdawari and Jamabandi since Kharif 1994 crop till filing of the suit. Consequently, concurrent finding of courts below to the effect that plaintiffs are in possession of the said 19 kanals 07 marlas land cannot be said to be perverse or illegal so as to warrant interference in second appeal. On the basis of consistent entries in the revenue record including Jamabandi and Khasra Girdawari, plaintiffs have been rightly found to be ini actual possession of the aforesaid 19 kanals 07 marlas land in question. Learned counsel for the appellants next contended that plaintiffs purchased 13 kanals 16 marlas land only, but they have been granted permanent injunction regarding 19 kanals 07 marlas land, which is in excess of their share. However, learned counsel for respondents no.1 and 2 has no objection if the injunction regarding 19 kanals 07 marlas land is modified to the extent that the defendants shall not dispossess the plaintiffs from the said land except in due course of law, as also prayed for by the plaintiffs in the plaint. Consequently, judgments and decrees of the courts below deserve to be modified to this limited extent only. For the reasons aforesaid, the instant second appeal is allowed partly and plaintiffs' suit is decreed for declaration that they are owners of 13 kanals 16 marlas land being 276/6032 share of 301 kanals 12 marlas R. S. A. No. 1690 of 2009 6 joint land described in the plaint and also for permanent injunction restraining the defendants from dispossessing the plaintiffs from 19 kanals 07 marlas land comprising of khasra nos. 28 min.(4-6), 28 min.(5-8) and 30 (9-13), except in due course of law. January 17, 2011 ( L. N. MITTAL ) monika JUDGE