RSA 2268 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2268 of 1985 Date of decision 31.5.2011 Asha Rani etc. Appellants versus Om Parkash etc. Respondents CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.C.B.Goel and Mr.Sanjiv Gupta,Advocates for the appellants Mr.G.S.Jaswal,Advocate for the respondents ...... JITENDRA CHAUHAN.J The present appeal has been filed against the judgment and decree dated 11.4.1985 passed by learned Ist Appellate Court, whereby the judgment and decree dated 29.9.1983 of the Ld.trial court dismissing the suit of the plaintiffs, were aside. The case of the appellants-plaintiffs is that the bandobast of abadi land of Village Sultanpur Lodhi was held in 1946 B.K. Khasra No.1221 measuring 4 kanals was owned by Ram Dhan Sood, who was not having any heir. Shop No.1221 was mortgaged in favour of Mohanta Mal son of Paras Ram, whereas the Shop No. 1220 was mortgaged by Ram Dhan Sood and others with Lajpat and Mehar Chand. Shop No.1221 remained uninhabited for a long time, and thus got converted into a khola. The plaintiffs remained in possession of the shop i.e. khola. An iron petti by Hari Ram remained in the khola till February,1979. Defendants No. 1 to 4, forcibly removed that petti and entered into the disputed shop. It was alleged that plaintiffs were residing in England. On coming to know the act RSA 2268 of 1985 2 of the defendants, plaintiffs came back in January,1980 and found that defendants No. 1 to 4 had forcibly taken the possession of the disputed property. It was alleged that defendants No.1 to 3 have constructed the front wall of the disputed shop, affixed the gate and constructed a room . They filed the present suit for possession. On notice to the defendants, two separate written statements, one by defendant Nos. 1 to 3, and the other by defendant No.4 were filed. Defendant Nos. 1 to 3 denied the claim of the plaintiffs and took an additional plea that Asha Rani (Appellant-defendant No.1) is the bonafide purchaser for consideration and without notice to the rights of the plaintiffs. It was further pleaded that Asha Rani,defendant No.1, raised construction on the disputed property after removing the debris and leveling it. At that time, Om Parkash (respondent), was present in India and he did not stop Asha Rani from raising the construction. Karamvir,defendant No.4, pleaded that the plaintiffs have no cause of action and that the suit is barred by limitation. He took the plea that the upper storey of the disputed site was in possession of his ancestors and his predecessors-in-interest were in continuous and uninterrupted possession of the disputed site for more than 80 years. From the pleadings of the parties,the following issues were framed- 1. Whether the plaintiffs are the heirs of Mahanta Ram, if so its effect?OPP 2. Whether the property in dispute was not mortgaged with Mahanta Ram by Ram Dhan, if so,its effect?OPP RSA 2268 of 1985 3 3. Whether the property in dispute was not got redeemed by the present mortgagor as alleged?OPP 4. Whether the suit of the plaintiff is within limitation?OPP 5. Whether defendant No. 4 has become the owner of the property in dispute by adverse possession?OPD 6. Whether the suit in the present form is not maintainable?OPD 7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD 8. Whether the plaintiff is barred from filing the present suit by his own act and conduct?OPD 9. Whether defendant NO;.1 has purchased the site in dispute for consideration and without notice?OPD No.1 10. Whether Karamvir was competent to sell the land in dispute? OPD No.1 11. Whether defendant No.1 has made improvements if so to what effect and to what extent?OPD No. 1 12. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?OP Parties 13. Whether the site in dispute does fall in khasra No.1221 OPD? 14. Whether the defendant No.4 was the owner of the upper storey of the site in dispute, if so,its effect?OPD No.4 15. Relief” RSA 2268 of 1985 4 Plaintiffs have examined five witnesses namely PW1 Patwari Kewal Singh, PW2 Jaswinder Kumar, PW3 Vijay Kumar, PW4 Ram Vir, PW5 Vir Chand,General Power of Attorney of Om Parkash,plaintiff. Defendants have examined 11 witnesses namely Lal Chand, DW2 Tirarth Ram, DW3 Amar Nath, DW4 Om Parkash,clerk of the Municipal Committee,DW5 Kulwant Rai, DW6 Ram Parshad, DW7 Karamvir,DW8 Kewal Singh Patwari, DW9 Ajit Singh, DW10 Kewal Dass and DW11 Bhagwan Dass. While deciding Issue No.13, it was held that the disputed site was not found part of the khasra No.1221 as per khasra abadi of Sultanpur Lodhi of 1946 B.K. Accordingly, the disputed site was not proved to be under mortgage with Mahanta Mal from Ram Dhan Sood etc. While deciding issue Nos. 4 & 5, it was held that the disputed site was originally in possession of Sakhi Chand, and thereafter it was in possession of defendant No.4 Karamvir, for more than twelve years and he became its owner by adverse possession, and the suit of the plaintiff is held to be time barred. While deciding issue No. 6, it was held that the suit was not maintainable. Issue Nos. 7, 8,12 and 13 were not pressed. While deciding issue No.9, it was held that defendant No.1 purchased the disputed site from defendant No.4 on consideration and the plaintiffs had no right in the disputed site. While deciding issue No. 10, it was held that Karamvir was competent to sell the disputed site. So far as issue No.11 is concerned, it is proved on record that defendant No.1 had raised construction on the disputed site after she had purchased it. The Ld. trial court dismissed the suit of the plaintiff with costs. RSA 2268 of 1985 5 Aggrieved by the decree and judgment of the Ld. trial court, plaintiff Om Parkash, filed an appeal before the Ist Appellate Court. The Ld.Ist Appellate Court reversed the findings of the Ld.trial court and accepted the appeal filed by Om Parkash by setting aside the decree and judgment of Ld.trial court. The present second appeal has been preferred by the appellants -Asha Rani etc. Learned counsel for the appellants submits that the Appellate Court has erroneously reversed the well-reasoned findings of the trial court on all the material issues, without considering the evidence on record. He further submits that the ld. Appellate Court has decided issue No.1, in favour of the plaintiff-respondents. He states that the Ld.Appellate Court has given much importance to the report of Local Commissioner , whereas the trial court did not rely on it. It was further submitted that the Ld.Appellate Court mis-read and mis-construed the evidence on record and reached at a wrong conclusion. On the other hand, learned counsel for the respondents submitted that the findings of ld. Trial court were rightly reversed by the ld.Appellate Court, as the same are in connotation with evidence on record. He argued that the findings of Ld.Ist Appellate Court being pure findings of fact cannot be interfered by this Court in second appeal. I have heard the learned counsel for the parties and perused the record with their able assistance. The point for consideration in this appeal is “whether the findings arrived at by the Ld. Ist Appellate Court, reversing the judgment of the Ld. Trial court are contrary to the evidence on record and perverse?” The Ld.Ist Appellate Court decided Issue No.1 in favour of the RSA 2268 of 1985 6 plaintiff-appellant, after going through numerous documents on record i.e. Pedigree Table Ex.P 1, showing that Paras Ram had two sons Gonda Mal and Mahanta Ram. Mahanta Ram did not marry and died issueless. In another Pedigree table, Ex.P2, Paras Ram had a son namely Nihal Chand. In Ex.P 3, Hari Ram was recorded as son of Nihal Chand, and Reez Kaur his widow. Om Parkash and Gurparshad were shown as sons of Hari Ram. As per Mutation Ex.P 6, sanctioned in the year 1966, the property of Mahanta Mal, was inherited by Gonda Ram, son of Paras Ram. There was no dispute that Mahanta Mal (Ram) and Gonda Ram were the sons of Paras Ram and that Gonda Mal is grand-father of Hari Ram. The plaintiffs are the heirs of Hari Ram. The entry recorded in Ex.P 12 relating to Khasra No.1221 was in of name of Mahanta Mal, while in other documents, Ex.P 16 and P 18, it is specifically recorded as Mahanta Ram. The plaintiffs have been able to establish their relationship with the said Mahanta Mal, who had been recorded as a mortgagee. The defendants have not been able to prove that the said Mahanta Mal was not the ancestor of the plaintiffs, and even the successor-in-interest of this person (Mahanta Mal) other than the plaintiffs. The finding recorded by the ld.trial court that the plaintiffs are not the heirs and successors of the said Mahanta Mal was held to be erroneous by the Ld. Appellate Court. So the same were decided in favour of the plaintiff-appellants and against the defendants-respondents. It is on the record that Jagdish Rai was appointed as Local Commissioner, and he submitted his report Ex.P 15 on 29.8.1981. The other party filed objections to the report and the same was set aside. A fresh report was called. Jagdish Rai accordingly submitted his report Ex.P9, dated 29.8.1982, alongwith plan Ex.P 10. The said Jagdish Rai died, RSA 2268 of 1985 7 during the pendency of the appeal,therefore, he could not be cross-examined in the Court. The Ld. Trial court has not believed the report of the Local Commissioner on the ground that the same was not in accordance with the instructions issued by the Financial Commissioner and the High Court Rules and Orders Vol.I,Chapter I.M. There were some discrepancies in the report to the effect that when measured from North and East, Khasra No. 1221 could not be properly demarcated because the map from which the Local Commissioner submitted his report was in a torn condition. In my opinion, the report cannot be ignored simply on the ground that from one side, Khasra No. 1221 could not be located. Rather, in Ex.P 8, the Local Commissioner has specifically mentioned that when measured from southern side, the disputed site is 1221. Even in his earlier report Ex.P 15, he had specifically stated that Khasra No. 1221, as per Khasra Abadi Shamlat Deh 1946 B.K, is the site in dispute. The witnesses examined by the plaintiffs made a mention of upper storey of the disputed site, wherein in Ex.P12 the two stories of Khasra No.1221, were shown to be in possession of Ram Dhan etc. The ground floor was mortgated by them with Mahanta Mal son of Paras Ram, while Ram Dhan was in possession of upper storey i.e. Balakhana, which was mortgated by them with Lajpat Rai Mehar Chand son of Nihal Chand. The Ld.Appellate Court disbelieved the evidence of the plaintiff that the disputed site was single storeyed for the reason that the entry in the record pertains to 1946 BK, while the witnesses were examined in the year 1983, and there was every likelihood of numerous changes in the disputed property after it was mortgaged. Karamvir, one of the defendants, in his exmaination-in-chief stated that the site in dispute was a khola, RSA 2268 of 1985 8 (empty space) and in the shape of Dohatta, while it was owned and possessed by his father. In his cross-examination, he has stated that there was a “Sandook” (box) lying in the khola and there was no upper storey. It fell down alongwith the building. The evidence of plaintiff with regard to location and description of the disputed site, was corroborated by the admission of the defendants, and it goes to prove that the site in dispute is khasra No. 1221, and it was mortgaged by Ram Dhan and others and the same has not been redemeed so far. The Ld. Ist Appellate Court rightly decided Issue No. 13, in favour of the plaintiff-appellant and against the defendants-respondents. Karamvir, the defendant has stated that the property in dispute was acquired through mortgage by his family. But he has failed to prove that this property was ever mortgaged with his predecessors-in-interest. There is no evidence on the record that the property in dispute stood redeemed by the mortgagor. Therefore, Issue No. 3, was decided in favour of the plaintiffs because it was fully proved on the record that the property in dispute has not been redeemed. The Ld. trial court considered the partition deed dated 2.5.1970, certified copy of which is Ex.DW7/B, executed between Sakhi Chand, his wife and his sons. The disputed site is shown at page 4 and it is alleged to have fallen to the share of Karamvir, though it was described wrongly, which gave rise to filing of the suit by Sheela Devi, mother of Karamvir. The suit was decreed by Sub Judge on 7.8.1974, certified copy of the judgment is Ex.DW7/C. Another agreement dated 1.9.1974 was executed for the purpose of proper description of the property. It was argued before the trial court that the suit was not within time and the defendants have RSA 2268 of 1985 9 become owners by way of adverse possession. Dealing with this argument, the ld.Ist Appellate Court held that the observations of the ld.trial court were not tenable as it has come on the record that the disputed property was lying in the shape of khola. Amar Nath PW3, has specifically stated in his cross- examination that he had been seeing the site in dispute in a demolished state. Vir Chand, PW5 Attorney of the plaintiff has stated that the defendants entered into forcible possession in February 1979. He further stated that Hari Ram, father of the plaintiff used to sit in the Varandah. One petti (iron box) used to be kept by his side. In cross-examination by Karamvir, he admitted that some construction was raised over the site in dispute. He also admitted it to be correct that Karamvir sold the disputed site to Asha Rani (appellant before this Court) . These suggestions clearly suggest that the disputed site remained in a demolished condition, and the defendant-respondents forcibly occupied the same, only a few years ago. There is no convincing evidence on record to show that the defendants became owners by adverse possession. The Ld.Ist Appellate Court rightly held that since the plaintiffs proved to be heirs of Mahanta Ram and the property in dispute was mortgaged with Mahanta Ram by Ram Dhan, the suit for possession is maintainable. Asha Rani has been held to be bonafide purchaser as she purchased the disputed site from Karamvir, the defendant. Karamvir has admitted the genuineness of the sale deed Ex. DW7/9, for a sum of Rs. 7500/-. This finding cannot be affirmed because in the revenue record, the disputed site was recorded under mortgate with Mahanta Ram. The vendees had not made searching enquiry. She was required to find out as to who was the real owner of the property in dispute and whether the property was RSA 2268 of 1985 10 redeemed or not, and if so, by whom. Since the property was not redeemed as yet because the plaintiffs-appellants are successor-in-interest of Mahanta Ram, therefore, Asha Rani cannot be considered to be a bonafide purchaser nor Karamvir was competent to sell the property in dispute in favour of Asha Rani. The findings recorded by the Ld.Ist Appellate Court are pure finding of fact and do not call for any interference by this Court while entertaining regular second appeal. No substantial question of law arises for determination in this appeal. In view of the foregoing discussion, this appeal fails and is dismissed with no order as to costs. However, the decree and judgment dated 11.4.1985 of the Ld. Ist Appellate Court are affirmed. (JITENDRA CHAUHAN) JUDGE 31.5.2011 MS Note:Whether to be referred to the Reporter?Yes/No.