RSA No. 241 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSANo. 241 of 1985 Date of decision 06.5.2011 Ram Phal & Ors. Appellants v. Ram Bhaj & Ors . Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Ashish Kapoor,Advocate for the appellants Mr.Alok Jain,Advocate for the respondents .... JITENDRA CHAUHAN.J This regular second appeal has been filed against the judgment and decree dated 18.1.1985, passed by the learned First Appellate Court allowing the civil appeal No.31/13 of 28.9.1984 titled “Ram Bhaj v. Ram Phal and Ors”, whereby the judgment and decree dated 15.9.1984 passed by the learned trial Court were set aside,by which the suit (No.114 of 1976) titled “Ram Bhaj v. Ropala” for permanent injunction restraining the defendants from interfering into his possession in the area of 8 kanals 1 marlas of Killa No.40/1 situated in village Mauja Bahri Lalheri,Tehsil Sonepat was dismissed. The facts of the case are that on 2.12.1969 Ram Bhaj (since deceased) purchased land in open auction from the Custodian Department, being Killa No.40/1 alongwith other area in village Bahri Lalheri. The sale RSA No. 241 of 1985 2 was confirmed by the Tehsildar Sales (Evacuee Property),Rohtak, on 23.4.1970 and sale certificate dated 15.2.1971 was issued to him. The possession was delivered on 27.6.1970 by the Patwari Jagdish Chand, Custodian Department. Ram Bhaj claimed that he has been cultivating the land thereafter. The said land was mutated in his favour on 29.11.1971 vide mutation No.2125. The respondents were interfering in his possession and he filed a suit restraining them to do so. The respondents, Rupla etc. filed written statements controverting the claim of Ram Phal and also filed civil suit Nos. 110,111 and 112 of 1976 claiming themselves to be in possession of disputed area of Killa No.40/1 and with further prayer that appellant be restrained from interfering into their possession. The three suits filed by the defendants against Ram Phal were dismissed, whereas his suit was decreed vide order dated 7.10.1978. The defendants filed four appeals against the order dated 7.10.1978. The defendants withdrew their three appeals on 17.10.1980. However, the fourth appeal filed against the judgment of civil suit No.114 of the defendants was pending before the Appellate Court. They sought amendment in the written statement which was allowed subject to payment of costs and in consequence thereof the said appeal was accepted and judgment in favour of Ram Bhaj was set aside and case was remanded back by the appellate court vide order dated 22.12.1980. Ram Bhaj filed replication to the amended written statement filed by the defendants. After re-trial, the suit of Ram Bhaj was decreed by Sub Judge Ist Class,Sonepat vide judgment dated 15.2.1982, against which Ist appeal was filed by the defendant-respondents, which was accepted vide judgment dated 31.3.1984. The case was again remanded back for re- RSA No. 241 of 1985 3 decision. Ultimately the suit was dismissed on 15.9.1984 by the ld.trial court against, which the Ist appeal filed by the appellant Ram Bhaj was accepted on 18.1.1985 by the ld. Appellate Court. As per the respondents, the disputed area was in abadi deh and never vested in the department of Custodian. It was put to auction by the Tehsildar Sales of the Custodian Department. As per the respondents, the certificate with Ram Bhaj being false, the same was not binding upon them. The said area was not partitioned. The respondents claimed to be co- sharers alongwith other villagers, tether their cattle therein and the mangers etc. are already in existence at the spot. In their amended written statement, the defendants-respondents claimed that the area is in abadi deh and prior to 1947, it was in possession of Hindus as well as Muslims biswedars and on the face of it, it is a composite property and could not vest in the department of Custodian. It was further claimed by them that it was never declared as evacuee property and they were entitled to purchase the same at reserved price being in possession thereof. No inquiry under section 7 of the Administration of Evacuee Property Act was conducted. Ram Bhaj filed replication refuting the claims made by the defendants-respondents. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is the owner in possession of the suit land?OPP 2. Whether the suit is not maintainable in the present form?OPD RSA No. 241 of 1985 4 3. Whether the suit is bad for mis-joinder of the parties?OPD 4. Whether the plaintiff is estopped from bringing this suit?OPD 5. Relief. After amendment of the written statement, the ld. Trial court had framed the following additional issues:- 5.Whether auction sale was not duly confirmed by the competent authority and no conveyance deed was executed in favour of the plaintiff and proceedings of auction were without jurisdiction and nullity as alleged? 6.Whether the land in suit was never a custodian property and continued to be in possession for the proprietors of the village Lehrari as alleged in para No.1 of the amended written statement? 7.Whether plaintiff in collusion with custodian department had obtained the sale certificate and is a fabricated document as alleged? 8.Whether defendants are entitled to purchase the suit land on reserved price as alleged”? The Ld.trial court decided the issue No.1,against the plaintiffs and held that the defendants who are established to be in actual physical possession of Killa No.40/1, as co-sharers, are within their rights to continue in possession of the same till it is disposed of in accordance with law. On additional issue No.5, the ld. trial court held RSA No. 241 of 1985 5 that the plaintiff Ram Bhaj failed to establish that he is entitled for a decree for permanent injunction against the defendants and as such his suit stands dismissed. The Ld. Appellate Court reversed the findings of the Ld.trial court and allowed the appeal filed by Ram Bhaj and held that he has been in possession of the area in dispute and as such respondents were restrained from interfering into his possession except in due course of law. Aggrieved against which, the respondents Ram Phal etc. have preferred this appeal, which was admitted on 21.3.1985. The learned counsel for the appellants has contended that the trial court has rightly dismissed the suit of the respondent Ram Bhaj holding that he was not in possession of area of Killa No.40/1,as the possession was not delivered to him by the department of Custodian. He further contended that the Appellate Court has wrongly accepted the appeal of the respondent without going into the entire evidence on record. He argued that the Custodian department could not have sold the property without partition, as the property in dispute is a part of Abadi deh, and the appellants are co-sharers in it. He further argued that the sale of the disputed land is illegal and is in collusion with the department. In support of his arguments, he placed reliance on Abdul Hakim Khan and Ors. vs. The Regional Settlement Commissioner, AIR 1961, SC 1391. On the other hand, learned counsel for the respondents RSA No. 241 of 1985 6 controverted the submissions of the learned counsel for the appellants on the ground that the Ld.Ist Appellate Court has righty reversed the findings of the ld. Trial court after going through the entire evidence produced on record. He submitted that the sale by the Custodian department is not under challenge without there being any counter claim in this regard and especially when other suits have been withdrawn. He argued that findings as to question of possession is pure question of fact and the said finding, even erroneous, remains in the realm of appreciation of evidence and would not give rise to substantial question of law to call for interference in regular second appeal under section 100 C.P.C. In this regard, reliance has been placed on 1998(3) RCR 6. He further argued that the findings recorded by the ld. Appellate court cannot be termed as perverse in any manner whatsoever. He contended that in this appeal no question of law arises for determination and on this ground alone, the appeal deserves to be dismissed. In support of his contentions, he placed reliance on Narayanan Rajendran and another v. Lekshmy Sarojini and others, 2009(2) RCR (Civil) 286. I have heard the learned counsel for the parties and perused the record with their able assistance. The point for determination in this appeal is “whether the Ld. Ist Appellate Court while decreeing the suit for permanent injunction filed by the plaintiff has mis-read and mis-interpreted the evidence on record or that the impugned judgment is perverse?” RSA No. 241 of 1985 7 From the perusal of the record, it emerges that the learned Appellate Court has considered each and every aspect of the matter as regards possession of the respondent. Before the Appellate Court, counsel for the parties conceded that the Custodian Department is competent to separate the share of the abadi deh. This concession had made the point to be decided by the ld.Appellate Court simple in so far as it is to be decided as to which party has been in possession of the area in disputed killa No.40/1. The Ld.trial court has decided the question of possession in favour of the defendants-Ram Phal etc. However, the ld. Trial court rejected the claim of the appellant Ram Bhaj on the ground that he has failed to prove that the possession of the said area was ever delivered to him by the department of Custodian. This being a question of fact has been decided by the ld. Appellate Court on the basis of numerous documents placed on record. On 25.2.1969, Evacuee agricultural land including the area of Killa No. 41/1 ( 4 bighas 17 biswas) of village Lalheri was auctioned and Ram Bhaj offered the last bid of Rs. 5200/-. Regarding this sale of land, some objections were received, which were disposed of on 30.9.1969 vide Ex.P.2 by the Chief Settlement Commissioner. It was held that instead of Killa No. 41/1, Killa No. 40/1 was to be sold. Thereafter 23 kanals land including killa No.40/1( 8 K 1 M) was auctioned on 2.12.1969 and was purchased for Rs.6100/- by the respondent-plaintiff and sale was confirmed vide Ex.P3 and sale certificate was issued in his favour. Vide Mutation No.2125, the land alongwith land in dispute RSA No. 241 of 1985 8 was mutated in favour of the respondent-plaintiff. These documents have not been challenged so, the right as well title of the land in dispute stood in the name of the respondent-plaintiff. As regards the issue of delivering the possession of the suit land in favour of the respondent- plaintiff, the ld. Appellate Court observed that once the sale was confirmed in favour of the respondent-plaintiff, issuing of warrants of possession was not necessary and moreover the revenue entries are there on the record to show that respondent-plaintiff was in possession of the disputed land. The Ld. Appellate Court held that Ram Bhaj,plaintiff has been in possession of the area in dispute as appellants were restrained from interferring into his possession except in due course of law. In the light of above discussion, it is proved on record that the respondent-plaintiff Ram Bhaj being a auction-purchaser from Custodian, is the owner in possession of the disputed suit land. The test of perversity has been reiterated in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya 2011(4) SCC 584 as under : “The test of perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding on the material on record.” No substantial question of law arises in this appeal. In view of the above, this Court do not find any ground to interfere with the well-reasoned findings recorded by the Ld.Ist Appellate Court. Hence,the regular second appeal filed by the RSA No. 241 of 1985 9 appellants fails and is dismissed. However, the judgment and decree dated 18.1.1985 passed by Ld. Ist Appellate Court are affirmed. (JITENDRA CHAUHAN) JUDGE 06.5.2011 MS Note:Whether to be referred to Reporter? Yes/No.