RSA No.3117 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3117 of 1986 Date of decision 06.08.2010. Joginder Kaur and others ...... Appellants. versus Mohinder Singh and another ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. G.S.Punia, Advocate and Mr. N.S.Swaitch, Advocate for the appellants. Mr. Sanjay Majithia, Senior Advocate with Mr. Shailender Sharma, Advocate for respondents. K.C.PURI, J. This is a regular second appeal directed by defendant- appellants against the judgment and decree dated 30.5.1986 passed by Mr. R.K.Synghal, Additional District Judge, Kapurthala vide which the appeal preferred by the defendant-appellants against the judgment and decree dated 11.12.1985 passed by Shri D.S.Malwai, Sub Judge IInd Class, Kapurthala who decreed the suit of the plaintiffs, stood dismissed. Shorn off unnecessary details, the case of the plaintiffs as set forth in the plaint is that defendant No.1 purchased a plot measuring 6 marlas out of Khasra No. 4320 from Kewal Singh through sale deed dated 12.9.1980. Later on, said owner sold another plot out of said Khasra number to Swaran Kumar defendant No.3 vide sale deed dated 24.2.1982 RSA No.3117 of 1986 2 with the boundaries : East : property of Punjab State, West : Street 13 feet, North : Plot of Joginder Kaur and South : Plot of owner Kewal Singh. Measurement of the said plot in the sale deed was given as 30 X 90 feet but no space for 90 feet was at the spot according to revenue record. However, mutation with 30 feet width as given in the sale deed was sanctioned after disallowing the length in the Tatima as no length of 90 feet was there. Afterwards both the plaintiffs purchased their plots from the same owner out of same khasra number and their boundaries are as under:- Plot of East : Land of Punjab State Jaspal Kaur West: street 13 ft. wide plaintiff North: Plot of Swaran Kumar (defendant) South : Mohinder Singh (plaintiff) Plot of East : Land of Punjab State Mohinder Singh West: street 13 ft. wide plaintiff North: Jaspal Kaur South : Punjab State and these sale deeds are dated 2.7.1982 and 30.11.1982 on the basis of an agreement dated 9.1.1982. Lastly, Gurdial defendant got the sale deed executed from Kewal Singh owner on 14.1.1983 with a false recital of some previous bargain on 23.12.1981 with the boundaries as under :- East : custodian, West : Joginder Kaur, North : S.K. Grover (defendant No.3) and South : Joginder Kaur. All the defendants have joined hands with Kewal Singh owner, who executed sale deed on 14.1.1983 against facts and title and now Gurdial Singh has forcibly encroached upon the land in between the plots of Joginder Kaur and Swaran Kumar defendants and has constructed a wall RSA No.3117 of 1986 3 from point A to B which is not straight one for the reasons best known to him. Swaran Kumar might have allowed him to raise a wall after receiving any consideration and now Gurdial Singh is claiming area encircles as red from point A to B as fully depicted in the site plan. Defendant Gurdial Singh has no right to raise wall here and assert any claim over the said plot because there is no space left in between the plots of other defendants as per earlier sale deeds. Even the boundaries given in the sale deed do not tally with the space claimed by Gurdial Singh defendant and its khasra numbers are also different, as such his sale deed and that of other defendants with recital of false dimensions have no legal value and are not binding upon the rights of the plaintiffs. The identity of the plot of the plaintiffs is very much clear. All the defendants with malice and ill motive want and threaten to push the plaintiffs ahead out of their plots which is neither possible nor just in any manner. Hence the suit. The defendants contested the suit of the plaintiffs taking preliminary objections that the map attached with the plaint is uneculded one, incomplete and the material points in dispute have not been mentioned. The suit is bad for mis-joinder and non-joinder of necessary parties. That the suit is not maintainable in the present form. That the suit is not properly valued for the purpose of Court fee and jurisdiction. That Jaspal Kaur filed a similar suit on the same ground which she withdraw on 27.7.1983 without permission to file fresh suit, as such she cannot file the present suit. On merits, it was admitted that Joginder Kaur purchased 6 marlas out of khasra No. 4320 but it was denied that this was first sale out of this khasra number. The site plan and its dimensions given are not correct. Towards North of the RSA No.3117 of 1986 4 khasra number, military area starts and in the North out of khasra no. 4320, three karams vide path is kept. After that the plot of Joginder Kaur defendant No.1 is to start. In the map, northern and southern side of the plot of Joginder Kaur have not been mentioned and the area of the street has also been wrongly included in the plot to be purchased by Joginder Kaur. It was admitted that Kewal Singh sold 15 marlas to Swaran Kumar defendant No. 3 through sale deed dated 24.2.1982 and asserted that the dimensions of 30 X 90 feet given are correct and denied that there is no space of 90 feet according to the revenue record out of khasra No. 4320 which could be sold to Swaran Kumar defendant No.3. Kewal Singh had sold the land out of khasra No. 4320 to Bhan Singh, Shingara Singh, Amrik Singh and Simar Kaur and these vendees illegally encroached upon the area not sold to them to which they are not entitled to and they in collusion with the revenue officials got wrong Titamsa and mutation sanctioned regarding their sale deeds and that of Swaran Kumar defendant No.3 and they have illegally constructed wall in the plot of Swaran Kumar defendant No.3 and others and wrong mutation was got sanctioned in the absence of Swaran Kumar but it was admitted that Gurdial Singh got executed sale deed on 14.1.1983 and denied that the recital about bargain of 23.12.1981 is wrongly mentioned. There has been an agreement to sell with Kewal Singh owner and Gurdial Singh defendant No.2 on 23.12.1981 and he was given possession at the spot and he constructed a wall on the southern side. But through a clerical error, the boundaries have not been correctly mentioned in the sale deed and by mistake and oversight the North has been mentioned as South and South has been mentioned as North and the wall shown by the plaintiffs at Points RSA No.3117 of 1986 5 A and B in the map is not correct. It was denied that all the defendants have joined hand with Kewal Singh owner. It was also denied that Kewal Singh executed sale deed dated 14.1.1983 against facts and title. It was also denied that Gurdial Singh defendant No.2 has now encroached upon the land and plot Swaran Kumar but he is in possession of said area since agreement dated 23.12.1981 and has constructed wall there. It was also denied that Swaran Kumar defendant allowed Gurdial Singh defendant to raise a wall and has received consideration but the wall is in existence since December 1981 much earlier to the sale deed in favour of Swaran Kumar defendant No.3 and he has become its owner on the basis of the sale deed dated 14.1.1983. It was also denied that the wall has been raised recently. The wrong side mentioned due to clerical mistake in the sale deed dated 14.1.1983 is meaningless which is clarified by the agreement dated 14.1.1983. The sale deeds in favour of the plaintiffs even if proved will lead nowhere as in the alleged sale deeds, the dimensions are not given. The plaintiffs cannot claim 16 feet from East to West and the area from South to North shown under their plot. Kewal Singh has not sold area claimed by Jaspal Kaur plaintiff vide sale deed dated 2.7.1981 and Mohinder Singh vide sale deed dated 30.11.1982. It was denied that the defendants with malice and ill motive want to push the plaintiffs ahead of their plots and prayed that the suit of the plaintiffs be dismissed with costs. Replication was filed. Following issues were framed:- 1. Whether the plaintiff is entitled to the permanent injunction as prayed for ? OPP 2.Whether the plaintiff is owner in possession of the land in suit? OPP RSA No.3117 of 1986 6 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. What is the effect of the withdrawal of the suit by Jaspal Kaur on 27.7.1983 ? OPD 6. Whether the site plan placed by the plaintiff is incorrect or incomplete? OPD 7. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court decreed the suit of the plaintiffs vide judgment and decree dated 11.12.1985. Feeling dissatisfied with the judgment and decree 11.12.1985, the defendants preferred an appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Kapurthala vide judgment and decree dated 30.05.1986. Feeling dissatisfied with both the judgments and decrees passed by the Courts below, defendant-appellants have preferred the present regular second appeal before this Court. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants submits that following substantial question of law has arisen in the present case :- 1. Whether the judgments and decrees of both the Courts below are suffering from perversity on account of misreading and misinterpreted the evidence available on the file ? Learned counsel for the appellants has submitted that the case of the plaintiffs is that they purchased plot from Kewal Singh, the original RSA No.3117 of 1986 7 owner through sale deeds dated 2.7.1982 and 30.11.1982. Kewal Singh was the owner of whole of the land. On the one side of land purchased by Mohinder Singh, land of the Government existed. The land purchased by Mohinder Singh has been encroached upon by the State Government. The State Government has not been arrayed as a party. The demarcation has not been got conducted. Gurdial Singh purchased the property on 14.1.1983. The sale deed executed by Gurdial Singh is a valid piece of document. Both the Courts below have misread and misinterpreted the evidence on the file in decreeing the suit of the plaintiffs. I have carefully considered the said submission but do not find any force in that submission. Admittedly, Kewal Singh was owner of the suit land. Kewal Singh executed the first sale deed dated 12.9.1980 in favour of Joginder Kaur. Thereafter, the sale deed dated 24.2.1982 was executed in favour of Swaran Kaur. In the said sale deed, towards north side land of Joginder Singh has been shown. In the sale deeds dated 2.7.1982 and 30.11.1982 the boundaries have been mentioned. The plaintiffs are in possession of the land covered by these sale deeds. It does not lie in the mouth of the defendants that land of Mohinder Singh has been encroached upon by the Government. The construction made by the Government was already in existence much prior to the execution of the sale deeds dated 2.7.1982 and 30.11.1982 in favour of plaintiff. So, the boundaries given in the sale deeds in favour of plaintiffs would prevail. There is finding of fact recorded by both the Courts below that plaintiffs have purchased the property through sale deeds dated 2.7.1982 and 30.11.1982. No contrary map has been RSA No.3117 of 1986 8 produced by the defendants. So, that being a finding of fact recorded by both the Courts below, cannot be interfered. The counsel for the appellants could not point out as to how both the Courts below have misread and misinterpreted the evidence on the file. In view of the above discussion, the question of law raised by the appellants stands answered against the appellants and consequently the appeal is without any merit and the same stands dismissed with costs. A copy of this judgment be sent to the trial Court for strict compliance. ( K. C. PURI ) JUDGE August 6th , 2010. sv