RSA No. 796 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 796 of 2008 Date of decision: October 1,2008 Harminder Singh ..Appellant. Versus Atma Singh and others ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Nakul Sharma, Advocate for the appellant. ... Rakesh Kumar Garg,J. This is plaintiff’s second appeal challenging the judgment and decrees of the courts below whereby his suit for declaration to the effect, the plaintiff continues to be owner in possession as Hissedar in the suit land has been dismissed. Briefly stated, the facts of the case of the plaintiff are that previously Parmatma Singh and his brother Atma Singh were owners of the land measuring 361 Kanals 16 Marlas situated in village Chak Suhelawala. Parmatma Singh had transferred his entire share to the extent of 332 Kanals 11 Marlas, i.e., 33/37 shares out of land measuring 361 Kanals 16 Marlas in favour of the plaintiff and defendants No.2 and 3 who are the real sons of Parmatma Singh. Mutation to this effect w4as duly sanctioned in their favour. Plaintiff had taken the possession of the suit land measuring 19 kanals 12 marlas after sanctioning of mutation as Hissedar to the exclusion of everybody else. It was further averred that defendant No.1 got the khasra girdawari recorded in his name qua the suit land in connivance with the Halqa Patwari. When the plaintiff came to know about this mischief played by defendant No.1, he applied for correction of khasra girdawari which was corrected in his favour by A.C.II Jalalabad on 23.5.1999 RSA No. 796 of 2008 2 vide rapat No.563. Plaintiff never relinquished the possession of the suit land in favour of any person till date and he is in possession of the same. Defendant No.1 again got the khasra girdawari recorded in his favour by joining hands with Circle Revenue Officer on 5.4.2000 without issuance of any notice to the plaintiff. He preferred an appeal before the Collector Jalalabad against the said order but during the pendency of the said appeal, girdawari was incorporated in the jamabandi for the year 199-2000 and appeal was dismissed on the ground that revenue court has no jurisdiction to correct the entry recorded in the jamabandi and he was directed to file the civil suit. As such, the name of defendant No.1 in the jamabandi for the year 1999-2000 has been wrongly and illegally recorded contrary to the actual and factual position existing at the spot. Defendant No.1 has no concern with the possession of the suit land. On the basis of wrong entry, defendant No. 1 threatened and tried to disturb the possession of the [plaintiff, but his attempt was foiled due to intervention of the respectables of the locality. Plaintiff requested the defendant No.1 to get the revenue record corrected and to abstain from interfering into his peaceful possession but he refused to do so. As such, plaintiff filed a suit for declaration and for permanent injunction. In his written statement, defendant No.1 has raised preliminary objections that the suit is not maintainable as Harminder Singh is not in possession of the property in dispute. Parmatma Singh is father of plaintiff Harminder Singh. He had already filed a suit for declaration claiming himself to be owner in possession of land measuring 347 Kanals 8 Marlas being ½ share of land measuring 595 Kanals 16 Marlas in the month of September 2001. He claimed ownership of 347 Kanals 8 Marlas and further he claimed that he is in possession of the suit land. The suit land of present suit is also included in the suit filed by above said Parmatma Singh and present suit has been filed by Harminder Singh plaintiff after filing of suit filed by his father Parmatma Singh as the suit land in the present suit is part of the suit land of Parmatma Singh. As such, present suit is liable to be stayed under Section 10 of CPC. It is well settled principle of law that suit for mere declaration does not lie in case the person is RSA No. 796 of 2008 3 not in possession of the suit land. It was further averred that defendant No.1 had field suit for declaration against Angrej Singh son of Sham Kaur d/o Kishan Singh and Baldev Kaur alias Baljit Kaur d/o Sham Kaur d/o Kishan Singh to the effect that defendant Atma Singh is in possession of the land measuring 124 Kanals 4 Marlas out of land measuring 406 Kanals fully described in the plaint filed by Atma Singh. That suit was decreed by the Court of Shri J.S. Pamma, then Senior Sub Judge, Ferozepur vide judgment and decree dated 20.9.88.As per the said judgment and decree, defendant Atma Singh came in possession of the suit land in specific khasra numbers. Khasra Girdawari stands in the name of defendant Atma Singh from 1992 till date and mutation of suit land from the name of Baldev Kaur has been sanctioned in the name of Atma Singh. It was further averred that plaintiff had filed an appeal in the Court of Sub Divisional Magistrate-cum-Collector Jalalabad and the same was dismissed on10.9.2001 holding the possession of Atma Singh over the suit land. Plaintiff has concealed material facts qua his possession and the suit filed by his father. On merits, it was denied that plaintiff is in possession of the suit land rather it was pleaded that defendant Atma Singh is in possession as Hissedar for the last so many years. Atma Singh had filed suit against Baldev Kaur which was decreed in his favour. It was further pleaded that Khasra Girdawaris have been wrongly recorded in his name. Appeal filed by Plaintiff was dismissed holding that answering defendant is in possession of the suit land as Hissedar to the exclusion of everybody else. Rest of the averments made in the plaint were denied being incorrect. Lastly, it was prayed that the suit of the plaintiff may be dismissed with costs. In their joint written statement, defendants No.2 and 3 took preliminary objections that the suit of the plaintiff is bad for concealment of facts; that no cause of action against them accrued to the plaintiff; that the plaintiff has no locus standi to file the present; that the suit is false and frivolous and it is not maintainable. On merits, it was admitted that mutation No.2400 was sanctioned in favour of plaintiff and defendant No.2 and 3 qua transfer of land by Parmatma RSA No. 796 of 2008 4 Singh in their favour. It was pleaded that defendants No.2 and 3 are not in possession of the suit land. Rather plaintiff is in possession of the plaintiff. Rest of the averments made in the plaint were admitted. After considering the evidence on record and hearing the learned counsel for the parties, the learned trial Court decided all the issues against the plaintiff and in favour of the defendant and consequent there upon dismissed the suit of the plaintiff. Feeling aggrieved by the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal which was also dismissed vide impugned judgment and decree dated 16.7.2007 by the Additional District Judge, Ferozepur. While dismissing the appeal, the lower Appellate Court observed as under:- “In my view, ownership and possession of Atma Singh over the suit land measuring 19 kanals 12 marlas is established from the certified copy of decree sheet dated 20.9.1988. Certified copy of the same is Exh. D6.Atma Singh then plaintiff got the shares of Baldev Kaur d/o Sham Kaur d/o Kishan Singh and Angrej Singh son of Sham Kaur. The decree sheet includes the suit land and was duly passed on the statement of Baldev Kaur recorded owner of the suit land. Certified copy of her statement dated 6.6.1988 is Exh. D- 8. The said decree passed in favour of Atma Singh has become final. Revenue authorities vide orders discussed above final. Revenue authorities vide orders discussed above have also found that Atma Singh is in cultivating possession of the suit land. Appeal of appellant-plaintiff against the order for correction of khasra girdawari stands dismissed vide order dated 10.9.2001 passed by SDM-cum-Collector Jalalabad. Certified copy of which is Exh. D11.The appellant-plaintiff has challenged the entries. Regarding cultivating possession of the suit land in favour of Atma Singh but in the light of discussion made above, I arrive at the conclusion that RSA No. 796 of 2008 5 the above discussed revenue entries in favour of Atma Singh are genuine and valid. Kulwant Singh brother of the present appellant signed rapat Exh. D21 on the basis of which correction of Khasra Girdawari was made in favour of Atma Singh. He admitted the cultivating possession of Atma Singh over the suit property. Learned lower Court has duly appreciated the evidence on record. The suit filed by Parmatma Singh father of [present appellant on the same contentions against the respondent-defendant Atma Singh was withdrawn by him and the present suit filed by Harminder Singh is without any merits. There is no force in the instant appeal. As a result, the impugned judgment and decree are upheld and the appeal is dismissed with costs. “ Still feeling aggrieved, the plaintiff has filed the instant appeal challenging the judgment and decrees of the courts below . I have heard learned counsel for the appellant and perused the record. The only point urged by the counsel for the appellant before this Court is that respondent No.1 has admitted that he took possession of the suit land from Baldev Kaur and he has also admitted that Baldev Kaur was not in possession at that time and thus the judgment and decree of the courts below are perverse as the relevant evidence has been ignored by the courts below. I find no force in the contention raised by the counsel for the appellant. While arriving at the conclusion that ownership and possession of Atma Singh over the suit land is established, the courts below have considered the whole evidence on record. The lower Appellate Court has based its findings on Ex.D6 which is a certified copy of the decree sheet dated 20.9.1988.This decree sheet admittedly includes the suit land and this decree was duly passed on the statement of Baldev Kaur recorded owner of the suit land. The said decree passed in favour of Atma Singh has become final. While reaching to the conclusion that the revenue entries in favour of Atma Singh are genuine and valid, the lower Appellate Court has also relied upon rapat Ex.D-21, which was made in favour of Atma Singh and which RSA No. 796 of 2008 6 was signed by Kulwant Singh brother of the appellant and he admitted the cultivating possession of Atma Singh over the suit property. The lower Appellate Court also relied upon the fact that earlier suit filed by Parmatma Singh father of present appellant on the same contentions against the respondent-defendant Atma Singh was withdrawn by him. Thus the finding of fact regarding possession of respondent has been recorded by the courts below on appreciation of evidence on record. No substantial question of law arises. Dismissed. October 1, 2008 (RAKESH KUMAR GARG) nk JUDGE