RSA 2068 of 1980 1 In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 29.01.2008. Ishar Singh ... Appellant Versus Ved Bhushan and another ... Respondents. CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI. Present: Mr.GS Punia, Advocate, for the appellant. Mr.Sanjay Majithia, Advocate,for the respondents. PERMOD KOHLI, J. (Oral): This is plaintiffs Regular Second Appeal directed against the judgment and decree dated 19.05.1980 passed by the learned Additional District Judge, Jalandhar, allowing the appeal preferred by the defendant- respondents herein, against the judgment and decree dated 19.01.1980 passed by Mr. K.S. Uppal, Senior Sub Judge, Jalandhar, decreeing the suit of the appellant herein. The dispute in the present appeal relate to the identification of the property. The present case proceeds on certain admitted facts. The plaintiff-appellant purchased property described in the head-note of the plaint from Rehabilitation Department for a consideration of Rs.2712/- vide sale deed dated 03.11.1977, registered on 29.11.1977. Whereas defendant- respondent No.1,Ved Bhushan also acquired property measuring 40. ft X RSA 2068 of 1980 2 22. ft from the Rehabilitation Department on 31.07.1968 for which a sale certificate was duly executed on 28.03.1977. The plaintiff filed the suit for declaration that he is owner in possession of the suit property defined in the head-note which was leased out to him in the year 1965, where he claims to have installed a workshop in the year 1967. Defendant No.2- Gian Chand, chose not to appear despite service and was set ex-parte on 05.01.1979, but the suit was contested by defendant No.1-Ved Bhushan, claiming to be owner of the property in dispute on the basis of the sale certificate dated 28.03.1977. He has also stated that the property in dispute is a part of the bigger property bearing No.E-280 (P) and the entire property No.EF-280-P was purchased by the defendant. It was further stated that defendant No.2 was a tenant under defendant No.1 and that the plaintiff took the property in dispute on rent from defendant No.2. Suit for ejectment was filed by defendant No.1 against the plaintiff and defendant No.2 which was decreed. It was further pleaded that the property in dispute having been sold to defendant No.1 earlier in time, cannot be sold twice. It was also claimed that the electricity connection stands in the name of defendant No.2. Apart from the above, other various preliminary objections were also raised. Plaintiff-Ishar Singh besides his own statement as PW-1, also examined K.K. Dutta, Registration Clerk as PW-2; Sohan Lal Sales Kanungo PW-3; Sohan Singh Sethi Draftsman as PW-4 and Kailash Chander Sub Inspector, DC Office as PW-5. Kailash Chander, Sub Inspector, D.C. Office, PW-5 has stated RSA 2068 of 1980 3 that the plaintiff had been paying the rent of the property in dispute since 1965 and he has been running the workshop in the property in dispute since the said year. The trial Court came to the conclusion that the plaintiff has established that he has purchased the property vide sale deed dated 03.11.1977 which was registered on 29.11.1977 and is also in possession of the same. The learned trial Court also rejected the contention of the defendant Ved Bhushan that the property in dispute is part of the bigger property bearing EF-280-P, though the trial Court found that some property was purchased by the defendants vide sale certificate dated 28.03.1977 which was initially transferred to them on 31.07.1968. The learned trial Court was of the opinion that the site plan produced by the defendant does not tally with the boundaries of the sale certificate issued in favour of the defendant and there is no mention of property No.280 on the northern side of the property of the defendant in the conveyance deed. It also stated that the area of the property has not been mentioned in the sale certificate and, thus, the measurement claimed by the defendant i.e. 40 ft. X 22 ft. has not been established. Consequently, the learned trial Court vide its judgment and decree dated 19.01.1980 decreed the suit of the plaintiff and declared the plaintiff to be owner in possession of the property and also that the defendants have no right or interest therein. Aggrieved of these findings, defendant Ved Bhushan filed an appeal before the learned Additional District Judge, Jalandhar. The learned Lower Appellate Court has reversed the findings of the learned trial Court and dismissed the suit vide its judgment and decree dated 19.05.1980. The learned Lower Appellate Court found that both the parties have established their respective transfer deeds and since defendant No.1 had acquired the RSA 2068 of 1980 4 property on 31.07.1968 by auction and by virtue of the sale certificate dated 28.03.1977, the subsequent sale deed in favour of the plaintiff on 03.11.1977 registered on 29.11.1977 cannot confer any title upon him (plaintiff). The learned Lower Appellate Court referred to the sale certificate issued in favour of defendant No.1 Ved Bhushan as also transfer deed dated 31.07.1968 and the site plan produced by defendant and came to the conclusion that the boundaries of this property are given in the transfer document as North EF-280, South street, West EF-278 known as IE No. 76/U and East road. These boundaries are the same as shown in site plan Ex.D2 produced by defendant No.1. The measurement is also stated to be given in the site plan Ex.D2 and boundaries are also given therein. Referring to the statement of Jagdish Mitter, Office Assistant of the Rehabilitation Department DW-3, who proved the site plan Ex.D1/1, the boundaries have been established and thus, the defendants have proved that the property in dispute is part of the bigger property acquired by the defendants and consequently held that the sale deed subsequently obtained by the plaintiff is of no consequence and dismissed the suit. I have heard the learned counsel for the parties at length and perused the record of the case. Learned counsel appearing for the appellant has tried to impress upon me that the findings of fact recorded by the learned Lower Appellate Court are contrary to record and for that matter both the parties referred to the site plans Exs. D2 and P-1. From the site plan Ex.P-1 it appears that the disputed shop is shown as 22 ft. X 11. ½ inches. On the RSA 2068 of 1980 5 East side of this shop is the Mandi Raod, whereas on the West is Vindre Industries, on the North is the National Printing Press and South is the shop of Gian Chand and Ved Bhushan (defendants). The 2nd site plan produced by the defendant is Ex.D2 which comprises of a bigger area. The disputed shop is shown to be part of the area stated to be acquired by defendant No.1. Its boundaries are again shown as East-Mandi Road, West- EF- 279 and 76 (U) and immediately on the Western side of the disputed property is Bindra Engineering which is claimed to be the property of defendant No.1. On the North is the National Printing Press and on the South is Galli. From this site plan it appears that the measurement of three sides shown in the site plan Ex.P1 and site plan Ex.D2, are the same. Since defendant Ved Bhushan claims a larger area, both on the Southern and Western sides of the disputed property, the boundaries on South differ. The boundaries mentioned in this site plan are the same a shown in the conveyance deed dated 31.07.1968 in favour of defendant No.1 by the Rehabilitation Department, except on the North, where the property is shown as EF-280 and in the North of both the site plans Exs.D-2 and P-1, both the parties have shown National Printing Press. There is no evidence on record to show whether the National Printing Press is part of property No.EF-280 or not, otherwise all the boundaries tally. Both the parties have proved their respective title deeds. Thus, it is only the question of identification of the property. It is not in dispute that defendant No.1 acquired the property earlier in time from the same department from whom the plaintiff acquired the disputed shop, which, in fact, is shown to be part of the property acquired by defendant Ved Bhushan. The boundaries of the defendant's property seem to be the same and the disputed property seems to be the part RSA 2068 of 1980 6 of the property acquired by the defendant. Mr. Sanjay Majithia, learned counsel appearing for the respondent has referred to Kali Saran Vs. Hari Ram and another, 1957 P.L.R., 419, wherein it has been held as under:- “It is, however, a well known principle for construction of deeds of conveyance, that if in a land, conveyed and described by boundaries, as well as, by area, there is a difference between the boundaries and area, the land, actually comprised within the boundaries, is to be treated or to have been conveyed.” In the present case, boundaries as reported in the Sale Certificate/Conveyance deed are by and large same as in both site plans Ex.P-1 and Ex.D-2, the same should be accepted. The learned Lower Appellate Court has recorded findings of fact on the basis of the record which seems to be in consonance with the material on record. No substantial question of law is shown to have arisen. Findings of fact recorded by the learned Lower Appellate Court, being the final Court of fact, cannot be interfered with. In view of the above, I find no merit in this appeal and the same is hereby dismissed with no order as to costs. 29.01.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO RSA 2068 of 1980 7