RSA No.3025 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3025 of 2007 (O&M) Date of Decision:October 21, 2009 Col. Sarjit Singh Mond ...........Appellant Versus Gurmit Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arvind Mittal, Advocate for the appellant Mr.G.S.Nagra,Advocate for respondents No. 1 to 5 ** Sabina, J. Plaintiff-Col.Sarjit Singh Mond filed a suit for declaration and permanent injunction. The suit of the plaintiff was partly decreed to the effect that the plaintiff is owner in possession of the property comprising in khewat khatauni no.36/76 khasra no.471(6-14) situated at village Hirdapur after excluding an area of 3 bighas 2 biswas already acquired and the defendants were restrained from interfering in the peaceful possession of the plaintiff and it was also declared that the plaintiff is co-sharer in khasra no. 525(1-1) by the Civil Judge (Junior Division) Ropar vide judgment and decree dated 20.5.2005. The appeal filed by the plaintiff against the said judgment and decree was dismissed by the Additional District Judge, RSA No.3025 of 2007(O&M) 2 Rupnagar vide judgment and decree dated 6.12.2006. Hence the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge in paras 2 to 7 of its judgment reads as under:- “ 2. Appellant Sarjit Singh has filed the present appeal against the judgment and decree dated 20.5.2005 passed in Civil Suit No.159 of 17.7.2001, RT No. 74 of 17.7.2001/1.7.04 by the court of Shri Arun Kumar Aggarwal, Civil judge, Junior Division Ropar vide which the suit of the plaintiff was partly decreed declaring that the plaintiff is the owner in possession of property comprising in Khewat Khatauni No.36/76, Khasra No.471(6-14) situated at village Hirdapur after excluding an area of 3 Bigha 2 Biswas already acquired and defendants were restrained from interfering into the peaceful possession of the plaintiff over the same and it was further declared that plaintiff is only a co-sharer in Khasra No.525(1-1). However, the plaintiff is not entitled to the relief of declaration to the effect that the entries in the revenue record are illegal, null and void, wrong and plaintiff is also not entitled to the relief of declaration that sale deed dated 27.5.98 executed by defendants No.1 and 2 in favour of defendants No. 6 and 7 for land comprising in Khasra No.525(1-1) situated at village Hirdapur, Tehsil and District Ropar to the extent of 1/4th share is illegal null and void and plaintiff is also not entitled to the relief of permanent injunction qua this land. 3. Plaintiff Surjit Singh filed a suit for declaration that plaintiff is owner in possession of land comprising khewat/khatauni RSA No.3025 of 2007(O&M) 3 No.36/76, Khasra No.471(6-14), 525 (1-1) situated in the area of village Hirdapur, Tehsil and District Ropar as per jamabandi for the year 1961-62 on the basis of gift deed executed by Baru in favour of plaintiff dated 14.7.69 registered on 18.8.69 and the entries made in the revenue record are illegal, wrong, null and void and suit for declaration that the sale deed dated 27.5.98 executed by defendants No.1 and 2 in favour of defendants No. 6 and 7 for land comprised in Khasra No.525 (1-1) situated in village Hirdapur, Tehsil and District Ropar to the extent of 4th share is illegal, null and void with consequential relief of permanent injunction restraining the defendants from interfering into the possession of the plaintiff over the suit land. 4. It was pleaded in the plaint that originally the suit land was owned by Baru who executed gift deed dated 14.7.69 registered on 18.8.69. Baru died unmarried and issueless. After the execution of the gift deed, plaintiff is owner in possession of the suit land and Baru accepted the same during his life time. Rachan Singh challenged the gift deed in civil suit No.290/21.8.69 decided on 30.4.73 titled as Rachan Singh vs. Baru and another decided by the court of Sh.B.M.Modi, Sub Judge Ist Class, Ropar and that suit of Rachan Singh was dismissed and no appeal was filed. Therefore, this judgment will operate as Resjudicata. Similarly,land measuring 3B-2B was acquired from Khasra No.471 in the year 1982. Plaintiff filed suit for permanent injunction for restraining Rachan Singh and Lachhman Singh from receiving the compensation of acquisition and plaintiff had RSA No.3025 of 2007(O&M) 4 taken the plea in that suit that he is owner in possession of land comprised in Khasra No.471 (6-14) on the basis of gift deed dated 14.7.69. However, the said suit was dismissed on 21.10.85 with the observation that the civil court has no jurisdiction as suit was with regard to apportionment of the amount of compensation under the Land Acquisition Act and the same can be determined in a reference under Section 30 of the Act. Plaintiff also filed an appeal which was dismissed on 15.5.87 by Shri H.C.Modi, the then Addl. Distt. Judge, Ropar and appeal was ordered to be rejected on technical ground that civil court has no jurisdiction to entertain the civil suit. Thereafter, plaintiff moved a land reference before the District Judge, Ropar titled as Surjit Singh vs. Lachhman Singh and the same was decided by the Court of Shri R.M.Gupta, Addl. Distt. Judge Ropar vide judgment dated 13.8.91 and it was held that Baru was competent to gift away specific khasra number in favour of Surjit Singh and plaintiff was held entitled to receive the compensation and its appeal is pending before the Hon'ble High Court. The judgment of the civil court will operate as resjudicata. However, the revenue department has wrongly made entries in the revenue record maintained by the Patwari in connivance with the defendants with mischievous and malafide intention to defeat the rights of plaintiff in the jamabandi maintained in Tehsil Office and possession over suit land is shown to be in the name of Baru alone, whereas in the jamabandi maintained in the office of Patwari, possession of all the co- sharers has been shown and Baru and Lachhman in possession of RSA No.3025 of 2007(O&M) 5 specific khasra numbers have been dealing with the property. Therefore, entries maintained by the revenue department in the jamabandi maintained in the office of Patwari are illegal, null and void and have no effect on the rights of the plaintiff with regard to suit land. On the basis of these entries, defendants No.1 and 2 have sold ¼ share out of Khasra No. 525(1-1) vide sale deed dated 27.5.98 and the said sale deed is illegal, null and void and is liable to be set aside on the ground; that defendants are aware of the fact that there is a gift deed in favour of the plaintiff and that plaintiff is owner in possession over the suit land; defendants No.1 and 2 have no right, title and interest in the suit land; that the judgment of the civil courts as well as land reference operate as resjudicata; the sale deed has been executed with malafide and dishonest intentions; defendants No. 6 and 7 were aware of the earlier decisions and about the ownership of plaintiff and that plaintiff is still in possession over suit land and the possession has never been transferred and the sale deed has been executed in connivance with revenue officials. On the basis of the sale deed, defendants No. 6 and 7 are trying to interfere in the possession of the plaintiff over suit land for which they have no right, hence, the suit. 5. The suit was contested by the defendants. Defendants No.1 to 5 filed separate written statement taking preliminary objections that suit in the pre sent form is not maintainable; plaintiff is estopped to bring this suit by his own act and conduct; suit is hopelessly barred by time and that suit is liable to be stayed in RSA No.3025 of 2007(O&M) 6 view of pendency of appeal pertaining to land reference NO.492 of 1992. On merits, it has been stated that Baru was the owner of the suit land to the extent of ½ share. The alleged gift deed is void and cannot clothe the plaintiff with the title of suit property. To the knowledge of defendants Baru has never died and he has just disappeared from the village. It has further been stated that neither the plaintiff came in possession of the property nor Baru admitted the alleged gift deed to be correct. Defendants have no concern with litigation interse Rachan Singh and Baru. Pendency of the reference has also been denied. It has further been stated that Baru has one half share in the suit land and plaintiff never acquired any title to the suit land nor he was entitled to receive compensation as alleged. Defendants were not party to the said litigation. Therefore, there is no question that earlier judgment will operate as Resjudicata. Entries in the revenue record have been correctly maintained by the Patwari. Plaintiff might have procured some false entries in the Tehsil Office. In fact, Baru was owner to the extent of one half share only. The sale deed has been correctly executed by defendants No. 1 and 2. The grounds on which the sale deed has been challenged have been denied. It has also been denied that defendants and defendants No. 6 and 7 were award of earlier litigation. Therefore, there is no merit in the suit of the plaintiff and it be dismissed. 6.Defendants No. 6 and 7 filed separate written statement taking preliminary objections that the suit is not maintainable in the present form; plaintiff is estopped by his own act, conduct and RSA No.3025 of 2007(O&M) 7 acquiescence to file the suit against the defendants; defendants No. 6 and 7 are bonafide purchasers for a valid consideration and are owner in possession of land purchased by them vide sale deed dated 25.7.98 and that suit is hopelessly time barred. On merits, it has been stated that at the time the defendants purchased the suit land, it was owned by defendants No. 1 and 2 and plaintiff has nothing to do with it. The alleged gift deed is manipulated one and is after thought and has no effect on the rights of the defendants. The pedigree table does n9t depict the true picture. Entries in the revenue record are correct. Therefore, defendants No. 6 ad 7 are owners of the suit property purchased by them on the basis of sale deed dated 25.7.98. The grounds on which the sale deed dated 25.7.98 has been challenged have been denied. They have also denied gift deed in favour of plaintiff and also previous litigation between the parties. Therefore, it has been stated that there is no merit in the suit of the plaintiff and it be dismissed. 7. Plaintiff filed replication to the written statement of defendant No. 1 to 7 in which the averments of written statement have been denied and that of plaint were reiterated" On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff is owner of the suit property on the basis of gift deed dated 14.7.69 registered on 18.8.69 as alleged?OPP 2.Whether sale deed dated 27.5.98 executed by defendants No.1 and 2 in favour of defendants No. 6 and 7 regarding Khasra RSA No.3025 of 2007(O&M) 8 No.525(1-1) to the extent of ¼ share is illegal, null and void having no effect on the rights of the plaintiff, as alleged ?OPP 3.Whether the suit is not maintainable in the present form ?OPD 4. Whether plaintiff is estopped to bring the suit by his own act and conduct?OPD 5.Whether the suit is within limitation ?OPP 6.Whether suit is liable to be stayed due to pendency of appeal pertaining to land reference No. 492 of 1992?OPD 7.Whether defendants No. 6 and 7 are bonafide purchasers for valuable consideration, without notice, as alleged ?OPD 8. Whether plaintiff is entitled to the declaration prayed for ?OPP 9.Whether plaintiff is entitled to the permanent injunction prayed for?OPP 10. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves to be dismissed. Learned counsel for the appellant has submitted that the Courts below had erred in holding that the appellant was merely a co-sharer in Khasra No. 525(1-1). In fact, by virtue of the gift deed executed in his favour by Baru on 14.7.1969, plaintiff had become exclusive owner in possession of Khasra No. 525(1-1). As per revenue record, Baru was described to be in exclusive possession of Khasra numbers. 471(6-14) and 525 (1-1). The same had been given to the plaintiff by way of gift deed dated 14.7.1969 and since then plaintiff was in possession of the said Khasra numbers. The defendants had no concern with Khasra No. 525(1-1). Learned counsel for the respondents, on the other hand, has RSA No.3025 of 2007(O&M) 9 submitted that in the revenue record, Baru was described to be owner of Khasra No. 525(1-1) to the extent of half share. Although Baru was in possession of the said Khasra number yet he could transfer ownership of the Khasra number in dispute to the extent of his share only. The suit of the plaintiff was decreed by the Courts below with regard to Khasra No. 471(6-14) and the plaintiff was declared to be exclusive owner in possession of the said Khasra number. Defendants have not filed an appeal qua the said Khasra number. For the purpose of the present appeal, the dispute is with regard to Khasra No. 525(1-1). A perusal of the revenue record reveals that Baru was owner to the extent of half share of Khasra No.525(1-1). So far as Jamabandi for the year 1961-62 (Exhibit P6) is concerned, Baru is described to be in exclusive possession of Khasra No. 525(1-1). In jamabandi for the year 1967-68 (Exhibit P7) all the co- sharers are described to be in possession of Khasra number in dispute. In copy of the jamabandi for the year 1997-98 (Exhibit P9), all the co-sharers are described to be in possession of Khasra No. 525(1-1). The execution of the gift deed dated 14.7.1969 in favour of the plaintiff by Baru is not in dispute. However, as per consistent revenue record, plaintiff was owner of Khasra No.525 (1-1) to the extent of half share along with other co-sharers. In these circumstances, the Courts below rightly held that the plaintiff had become co-sharer in Khasra No.525(1-1). Plaintiff never sought correction of entries in the revenue record. Plaintiff challenged the sale deed dated 27.5.1998 by filing the suit on 19.6.2001 i.e. after the expiry period of limitation and, hence, the Courts below had rightly held that the suit of the plaintiff whereby he had challenged the sale deed dated 27.5.1998 was barred by limitation. Both the Courts below, after appreciating the evidence RSA No.3025 of 2007(O&M) 10 on record, have given a finding of fact that the plaintiff was a co-sharer in Khasra No. 525(1-1). The said finding of fact cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. ( Sabina ) Judge October 21, 2009 arya