R.S.A. No. 535 of 1984 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 535 of 1984 (O&M) Date of decision : 6.9.2010 ... Wasdev and others ................Appellants vs. Harbans Lal and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Rohit Verma, Advocate and Ms. Deepali Puri, Advocate for the appellants Sh. H.S. Giani, Advocate for the respondents. ... K.C. Puri, J. This is a regular second appeal directed by the plaintiff- appellants against the judgment dated 10.9.1983 passed by Sh. Gurdial Singh, Additional District Judge, Amritsar, vide which the appeal preferred by the plaintiff-appellants against the judgment dated 28.7.1980 passed by Sh. K.S. Kauldhar, Sub Judge Ist Class, Patti, was dismissed. Briefly stated, the plaintiffs have filed the suit for declaration to the effect that plaintiffs and defendants No. 5 and 6 are the owners in possession of the suit land claiming relief of permanent injunction. It is pleaded that plaintiffs are the legal heirs of Ralla Ram. The pedigree table has been given in the plaint. The suit land measuring 20 kanal 5 marlas situated in village Pahuwind was owned R.S.A. No. 535 of 1984 -2- and possessed by Ralla Ram. He had also landlord property and houses in vilalges Weeram, Bainka and Sandhra. Ganesh Dass and Ram Kishan sons of Ralla Ram were the members of the joint Hindu Family with their father. The property was coparcenary property. Ganesh Dass was ungrateful son of his father Ralla Ram. About 95 years before filing of the suit, Ralla Ram partitioned the property by family arrangement. He gave the landed property and houses situated in village Pahuwind and Sandhara to Ram Kishan. The land situated in village Bainka was given to Ganesh Dass. The property situated in village Weeram was given to Chand Rani wife of Ram Kishan. Since then Ram Kishan, Ganesh Dass and Chand Rani have been found in possession of the property. On 18.10.1881 a writing regarding the partition of the property was also executed. Ganesh Dass and Ram Kishan had signed the documents, 60 years before the filing of the suit. Ralla Ram had died. After the death of Ralla Ram, Ganesh Dass, Ram Kishan and Chand Rani, the plaintiffs and defendants No. 5 and 6 became their heirs. The suit land firstly was in possession of Ram Kishan and after his death the plaintiffs and defendants No. 5 and 6 remained in possession as owners. Defendants No. 1 and 2 have got no concern with the suit land. About 20 years before the filing of the suit, the plaintiffs and defendants No. 5 and 6 had mortgaged the land with Kundan Singh. The land has been redeemed. If the division of the property by family arrangement is not proved, even then plaintiffs and their predecessor-in-interest have been in possession of the land for the last 95 years. As such they have acquired the right of ownership by adverse possession. R.S.A. No. 535 of 1984 -3- Defendant No.2 wanted to take forcible possession asserting that he had purchased some land out of the suit land from defendant No.1. The alleged sale is denied by the plaintiffs. Hence the suit. On notice defendants No.1 and 2 contested the suit raising the objection that plaintiffs were not in possession of the land comprised in khasra No. 59/10. 1 and so the suit for declaration was not maintainable. It is admitted that the suit land was owned by Ralla Ram. However, it is denied if Ralla Ram owned land in village Bainka. It is also admitted that Ganesh Dass and Ram Kishan sons of Ralla Ram had joint Hindu Family with him. It is denied if Ganesh Dass was the ungranted son of Ralla Ram or if there has been any division of the property by way of family arrangement. It is also denied if the property situated in village Pahuwind and Sandhra was given to Ram Kishan and the land situated in village Bainka was given to Ganesh Dass. It is also denied if the land situated in village Weeram came to the share of Chand Rani. Jeeta had ½ share in the property. The plaintiffs and defendants No. 5 and 6 or their ancestors, had alone sold the land situated in village Weeram and now they wanted to take forcible possession of the land situated in village Pahuwind. It is denied if any document of family arrangement was executed. It is further asserted that mutation on the basis of the said writing has not been sanctioned and if the execution of the said is proved it is a forged document. it is also asserted that the said family arrangement has not been acted upon. The land comprised in Khasra No. 59/1 and 10 was mortgaged by Jeeta with defendant No.5 for a period of ten years. In 1975 the land was redeemed and defendant No. R.S.A. No. 535 of 1984 -4- 1 came into possession of the same. The land has been sold with defendant No.2 on 11.4.1975 and he is the bona fide purchaser for consideration of Rs.5,500/-. Thus defendant No.2 is the owner in possession of 10 kanals of land. It is denied if the plaintiffs have acquired the right of ownership by adverse possession. The plaintiffs are alleged to be mere figure head as the suit has been got instituted by defendant No.5. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are owners of the suit land on the basis of family arrangement and Yaddast dated 18.10.1881? OPP. 2. Whether plaintiffs are in possession of khasra No. 59/10, 1? If not to what effect?OPP 3. In case issue No.1 is not proved, whether the plaintiffs have become owners by adverse possession? OPP 4. Whether the plaintiffs and defendants No. 5 and 6 are estopped by their act and conduct from filing the present suit? OPD 5. Whether defendant No.2 has purchased the land from defendant No.1 for consideration, without notice and in good faith? OPD 6. Whether plaintiffs are only figure-head and the suit has been filed at the instance of defendant No.5? OPD 7. Relief. In order to prove his case plaintiff Vas Dev himself R.S.A. No. 535 of 1984 -5- appeared as PW-1 and closed the evidence. In rebuttal, defendant No.2 Karam Chand himself appeared as DW-1, and also examined examined DW-2 Bhog Singh and DW-3 Harbans Lal and closed the evidence. Learned trial Court after appraisal of the evidence, returned the finding on issue No.1 that plaintiffs are owners to the extent of ½ share whereas remaining ½ share of the suit land was owned by Jita (deceased). Issues No. 2, 3, 4 and 5 were decided against the plaintiffs. Issue No. 6 was decided against the defendant for want of evidence. In view of the findings, the learned trial Court decreed the suit of the plaintiffs to the extent that they are owners of ½ share of the suit land and suit qua the remaining ½ share, was dismissed vide judgment dated 28.7.1980 passed by Sh. K.S. Kauldhar, Sub Judge Ist Class, Patti. Feeling dissatisfied with the above said judgment, the plaintiff-appellants filed the Ist appeal and the said appeal was dismissed vide judgment dated 10.9.1983 passed by Sh. Gurdial Singh, Additional District Judge, Amritsar. Still feeling dissatisfied with the judgments dated 28.7.1980 and 10.9.1983, referred to above, the plaintiff-appellants have preferred the present regular second appeal. The plaintiff-appellants have placed on record an application in which it is mentioned that following substantial questions of law are involved in the present appeal:- I) Whether Exhibit P-1 is a memo of agreement and requires registration? R.S.A. No. 535 of 1984 -6- II)Whether the rule of law 1976 (SC) page 807 is applicable to the facts and circumstances of present appeal? III)Whether the writing dated 18.10.1881 is not a partition deed but it is a memorandum of family settlement effected between the heirs? IV)Whether the findings of Courts below being perverse and against the pleadings? V)Whether Section 90 of Evidence Act is attracted in the present appeal as a document is more than ninety years old? VI)Whether non-sanctioning of mutation vitiates the memorandum of family settlement? Learned counsel for the appellants has submitted that both the Courts below have ignored the document Exhibit P-1, which is more than 100 years old. The authenticity of the said document cannot be disputed. Both the Courts below have observed that the said document required registration. In fact that document is a memo of agreement accepting the past transaction and as such in view of the authority reported as Kale and others vs. Deputy Director of Consolidation and others, 1976 Supreme Court 807, the same cannot be discarded. From the perusal of the said document, it is revealed that 29 kanals 11 marlas of land has been given to Chand Kaur in that family settlement and plaintiffs being LRs of Chand Kaur are entitled to inherit whole of the property excluding the defendants from the inheritance of Ralla Ram. Ralla Ram in document Exhibit P-1 has categorically mentioned that Ram Kishan and Chand Kaur are serving him and on that account the suit land has been given to Chand R.S.A. No. 535 of 1984 -7- Kaur. Both the Courts below have given much importance to the fact the mutation on the basis of document Exhibit P-1 was not attested. The mutation is only for fiscal purpose. In view of agreement Exhibit P-1 which is memo of family settlement, plaintiffs are the owners in possession of whole of the property. Counsel for the respondents has supported the judgment of the trial Court and has submitted that no substantial question of law has arisen in the present appeal. I have given my thoughtful consideration to the rival submissions made by counsel for both the sides and have also gone through the record of the case. The stand of the plaintiffs is that the suit property was given to Chand Kaur in a family settlement, the memorandum of which has been written as Exhibit P-1. Both the Courts below have given a concurrent finding of fact that document Exhibit P-1 is an unregistered document conveying the title for the first time in respect of immovable property more than value of Rs.100/- and as such the same cannot be considered. The other finding returned by both the Courts below is that document Exhibit P-1 was never implemented in the revenue record and as such the same cannot be given effect. Both these questions are questions of fact and both the Courts below have returned the finding against the plaintiffs in this regard and as such the said finding cannot be interfered in the regular second appeal. There is nothing on the file to show that both the Courts below have misread and misinterpreted the evidence on the file. Document R.S.A. No. 535 of 1984 -8- Exhibit P-1 cannot be said to be a memorandum of family settlement. From the perusal of the same it is revealed that immovable property of 135 kanals has been alleged to be partitioned through that document. So, both the Courts below have rightly held that said document required registration. Admittedly, document Exhibit P-1 was not implemented in the revenue record. In the revenue record vendors of Karam Chand have been recorded as owner to the extent of ½ share and they have sold the property to Karam Chand. So, the finding of fact recorded by both the Courts below that Karam Chand is the bona fide purchaser for valuable consideration, also does not call for any interference. So, far as authority in Kale's case (Supra), is concerned, that authority is not applicable to the facts of the present case as document Exhibit P-1 cannot be said to be memorandum of family settlement accepting the earlier partition. The recital of document Exhibit P-1 is crystal clear that according to this document immovable property of Ralla Ram has been partitioned and as such the same cannot be looked into being unregistered document. Another stand which militates against the case of the appellants is that document Exhibit P-1 is dated 18.10.1881 i.e. more than 100 years prior to the filing of the suit. No reasoning has been given why this document has not been implemented in the revenue record. Ralla Ram is stated to have died in the year 1908 and thereafter his land has been inherited on the basis of natural succession and not on the basis of document Exhibit P-1. From 1908 till the date of sale, the land was in the name of vendor of Karam R.S.A. No. 535 of 1984 -9- Chand. The vendor of Karam Chand could only go through the revenue record. So, the finding of fact recorded by both the Courts below that he is bona fide purchaser for valuable consideration does not call for any interference. There is nothing on the file to show that finding recorded by both the Courts below is perverse. Section 90 of the Evidence Act does not help the case of the plaintiff-appellants, as even if it is assumed that document Exhibit P-1 was executed, that would not make it a valid document being unregistered. No doubt the mutation is for fiscal purpose, but where that plaintiffs hold the land to be joint with the defendants and defendants sell the land, in that case the person who has purchased the rights in the property is protected under Section 41 of the Transfer of Property Act. So, in view of the above discussion, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed with costs. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 6.9.2010 Judge chugh