RSA No. 2724 of 1989 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 2724 of 1989 (O&M) Date of Decision : 23.1.2009 Parbhati & others .......... Appellants Versus Budhi & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Amit Jain, Advocate for the appellants. Mr. H.S. Gill, Sr. Advocate with Mr. R.K. Dhiman, Advocate for the respondents. **** VINOD K. SHARMA, J. This regular second appeal is directed against the judgments and decree dated 21.3.1985 and 13.9.1989 passed by the learned Courts below vide which suit filed by the plaintiff-appellants for declaration and in alternative for possession, has been ordered to be dismissed. The plaintiffs claimed that land in dispute measuring 31 Kanal 12 Marla situated in village Farizrabad Misa, Tehsil Palwal, District Faridabad is part of bigger chunk of land measuring 149 Kanal 15 Marlas. The land measuring 31 Kanal 12 Marlas was under mortgage with possession with defendant-respondents. The plaintiffs-appellant claimed that they are exclusive owner of the land. It was also pleaded that one Smt. RSA No. 2724 of 1989 2 Malho widow of Gangu was co-sharer in the disputed land to the extent of 1/3rd share and said Smt. Malho died about 15 years back. Plaintiff- appellants claimed to be collateral of husbant of Smt. Malho and accordingly got mutation of inheritance of Smt. Malho sanctioned in their name. The defendant-respondents challenged the said mutation by setting up a Will dated 7.6.1963 in their favour and on the basis of the said Will revenue officers sanctioned mutation in favour of defendant- respondents and was incorporated in the jamabandi in the year 1972-73. The defendant-respondent were shown as successors of the share of Smt. Malho. The plaintiff / appellants claimed the Will to be forged and fabricated , however, the learned trial Court vide judgment and decree dated 16.8.1976 upheld the Will and also the entries in the record of right in favour of defendant-respondents. The decree of the learned trial Court was challenged by the plaintiff-appellants in appeal. The learned Additional District Judge, Gurgaon by way of judgment dated 3.2.1979 accepted the appeal and held the Will to be a document not executed by Smt. Malho. However, in spite of the judgment and decree of the learned Additional District Judge, the defendants were continued to be recorded as co-sharer being successors of Smt. Malho. The plaintiffs filed a suit for redemption of mortgage in respect RSA No. 2724 of 1989 3 of land measuring 31K-12Ms. However, in the suit the plea was taken that they were mortgagors of ½ share in the land measuring 31K-12Ms. The suit was decreed. However, it was held that the plaintiffs would be entitled to only symbolic possession being co-sharer. In appeal it was further clarified that the appellant-plaintiffs could get actual physical possession by way of partition. In the suit now filed it was prayed that in view of the judgment and decree passed by the learned Addl. District Judge holding Will to be forged and fabricated document the entries in the revenue record could not give any title to the respondent-defendants. The suit was contested by the defendant-respondents, and their stand was, that they were co-sharer in the land and that the entries in the revenue record showing them to be co-owner were not incorrect. However, the previous litigation between the parties regarding Will was not denied. The learned trial Court dismissed the suit filed by the plaintiff- appellants. In appeal an application was moved for leading additional evidence to produce on record the following documents :- “1. Fard Badar No. 2 } 2. Fard Badar No.3 } dated 9.11.1972 3. Mutation No. 970 of 1953 4. Mutation No. 2373 of 1976 5. Mutation No. 2106 of 1975 6. Mutation No. 984 of 1953 7. Jamabandi for the year 1982-83.” The application moved by the plaintiff-appellants, was ordered RSA No. 2724 of 1989 4 to be dismissed along with appeal. The learned lower appellate Court was pleased to observe that the appellants could not avoid the judgment Ex. D-6, which was inter se between the parties and based on the pleadings of the plaintiff-appellants. The learned lower appellate Court further held that in view of the findings recorded above, the additional evidence was not essential for effective and just decision of the case. The findings recorded by the learned trial Court were affirmed. Mr. Amit Jain, learned counsel appearing on behalf of the appellants, however, contended that the following substantial questions of law arise for consideration by this Court in this appeal :- 1. Whether in the facts and circumstances of the case the judgment and decree dated 24.7.1980 could operate as res judicata ? 2. Whether the judgment and decree of the learned Courts below are liable to be set aside being outcome of mis-appreciation, misreading and misconstruing the material evidence brought on record ? The learned counsel for the appellants contended that in the present case the learned Courts below have dismissed the suit by taking note of the revenue entries, which were prima facie wrong and not binding in view of the judgment and decree dated 3.2.1979 passed in favour of the plaintiff-appellants wherein the Will set up by the defendant-respondents was held to be forged and fabricated document. RSA No. 2724 of 1989 5 The contention of the learned counsel for the appellants was that the judgment and decree dated 24.7.1980 was a decree vide which the suit filed by the plaintiff-appellants was ordered to be decreed with liberty to seek partition of the land. Once it was proved on record that the plaintiffs were owner of the property in view of the judgment and decree dated 3.2.1979 the said judgment could not operate as res judicata. I feel that it is not necessary at present to go into this controversy. The judgment and decree by the learned lower appellate Court deserves to be set aside, as the learned lower appellate Court has not taken into consideration the effect of judgment and decree dated 3.2.1979 which proved that the revenue record showing the defendant-respondents as co- sharer by virtue of inheritance from Smt. Malho was not correct. The learned Courts below, therefore, erred in placing reliance on Section 44 of the Punjab Land Revenue Act to hold that presumption of truth is attached to the revenue entries. The presumption is rebuttable. Once it is proved on record that the revenue entries were not correct and in fact stood corrected as was sought to be pleaded by way of additional evidence, the learned lower appellate Could should have allowed the application moved by the plaintiff / appellants under Order 41 Rule 27 of the Code of Civil Procedure and thereafter adjudicated the matter to hold if the judgment and decree dated 24.7.1980 was to operate as res judicata and whether the plaintiff's suit was liable to be dismissed in view of the RSA No. 2724 of 1989 6 judgment and decree dated 3.2.1979. The application moved by the plaintiff-appellant under Order 41 Rule 27 of the Code of Civil Procedure stands allowed and the judgment and decree passed by the learned lower appellate Court is ordered to be set aside. The case is remanded back to the learned lower appellate Court to decide the appeal on merit by taking into consideration the additional evidence brought on record. Appeal allowed. 23.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE