RSA No. 167 of 1986 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 167 of 1986 Date of Decision : August 3, 2010 Smt. Bala Sundri & others .......... Appellants Versus Sham Sunder & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. C.B. Goel, Advocate for the appellants. Mr. Anil Kshetarpal, Advocate for respondent No.1. ****** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? Yes. 3. Whether the judgment should be reported in Digest? Yes. ****** VINOD K. SHARMA, J. This is defendants' regular second appeal against the judgments and decree dated 7.6.1982 and 14.10.1985, passed by the learned Courts below, vide which suit filed by the plaintiff / respondent No.1 for permanent injunction was ordered to be decreed. The plaintiff / respondent filed a suit for permanent injunction restraining the defendants from cutting or removing the RSA No. 167 of 1986 -2- ***** trees or any timber from the land comprised in Khatauni No. 12/19 Khasra Nos. 11/ 26, 27, 28 situated in village Patasgarh H. B. No. 474, Tehsil Jagadhri, by asserting therein, that the suit land was the joint property of the plaintiff and defendants No.1 & 2. On the land in dispute, there was a garden where 100 trees of mangoes, guava, shisham, Jaman and siras etc. were standing. The land was said to be in joint possession of the plaintiff and defendant No.1 & 2. The total area of the land was 18 Kanal, in which the plaintiff claimed 1/6th share, on the plea, that the suit land has not been partitioned so far. The defendants No.1 & 2 were having 4/6th share in the suit land, whereas the remaining 1/6th share was owned and possessed by Smt. Kamla widow of Jai Kishan, resident of Ishopur. The case of the plaintiff / respondent was, that defendants No. 1 to 3 sold the entire garden standing on the suit land to defendant No.4, who had started cutting of the trees. It was pleaded, that timber of value of approximately Rs. 50,000/- (Rupees fifty thousand only) was standing on the land. The plea of the plaintiff was, that defendants No. 1 to 3 in the suit had no authority or right to sell the timber or any part of the garden without getting it partitioned. Defendants No. 1 to 3 filed a joint written statement, claiming, that the suit land was exclusive property of defendants No.1 & 2, which was inherited by them from their father Pt. Sita Ram, who died on 15.1.1967. Pt. Sita Ram was said to be exclusive owner in possession of the disputed land since 1940, when the joint family comprised of Pt. Sita Ram, Pt. Ram Narain, Pt. Parmeshwari Dass, Sham Sunder plaintiff and Smt. Kamla Wati wife of Jai Kishan son of RSA No. 167 of 1986 -3- ***** Pt. Parmeshwari Dass. The said joint property was disrupted, and in the partition the suit property along with some other properties came to the exclusive share of Pt. Sita Ram, who continued as its exclusive owner till death. It was pleaded case of defendants No.1 & 2, that they had sold 34 mango trees and one jaman tree to defendant No.4 in terms of the agreement executed between them through their attorney, defendant No.3, on one hand and defendant No.4, on the other hand. The trees were sold for a total sale consideration of Rs. 12,700/-, out of which an amount of Rs. 1000/- was received by defendants No. 1 & 2 as advance. Defendants No. 1 & 2 asserted their right to sell the trees, and that defendant No.4 had right to cut these trees. It was also the pleaded case of the appellants, that after the partition which took place in the year 1940, the plaintiff, Kamla Devi and Ram Narain ceased to have any interest in the suit property. The case of the defendants further was, that Pt. Sita Ram had not cared to get the mutation of partition recorded and sanctioned, in accordance with the said partition, and the property continued to be recorded as joint property of Pt. Sita Ram and others. Taking advantage of the wrong entries in the revenue record, Ram Narain interfered in the exclusive possession of Pt. Sita Ram, and on account of this interference, Pt. Sita Ram filed a Civil Suit No. 67 in the year 1957, which was decided on 1.2.1958 by the learned Sub Judge Ist Class, Jagadhri. The suit was decided in favour of Pt. RSA No. 167 of 1986 -4- ***** Sita Ram, and his exclusive ownership / possession over the suit land was, thus, recognized. In that suit the plaintiff / respondent had admitted, that Pt. Sita Ram alone was the exclusive owner in possession of the suit land, therefore, it was prayed that the suit be dismissed with special costs. A separate written statement by defendant No.4 was also filed on the same lines, claiming right to cut the trees. In the replication, the plaintiff reaffirmed his stand taken in the plaint, besides controverting the stand taken by defendants in their written statements, and took a stand, that the properties situated in Yamunanagar, previously known as Abdullahpur, were allotted to the plaintiff, Pt. Ram Narain and Smt. Kamla Wati in equal shares, on the basis of that arrangement, Pt. Sita Ram was not given any share out of the properties in Yamunanagar, and this fact was duly incorporated in the partition proceedings of 1940. But again litigation started in the year 1957, in which the plaintiff was made proforma defendant, the suit was decided on the basis of the report of the referee. The case of the plaintiff in the replication was, that after the decision in the civil suit some arrangement was arrived at between Pt. Sita Ram and the plaintiff, and according to that arrangement plaintiff / respondent was allowed to continue to possess his 1/6th share in the disputed garden, and in lieu thereof 1/3rd share in the piece of land situated in Yamunanagar near Model Town was given to Pt. Sita Ram. It was on the basis of the understanding and arrangement, that the entries in the revenue RSA No. 167 of 1986 -5- ***** record with regard to the garden in dispute and piece of land in Yamunanagar were not got changed by the plaintiff and Pt. Sita Ram, although mutation No. 141 was sanctioned in respect of the disputed garden so far as it related to the share of Pt. Ram Narain. The case set up by the plaintiff in the replication further was, that since then Pt. Sita Ram and plaintiff were enjoying the garden in dispute, and the land in Yamunanagar, as per mutual arrangement. The case of the plaintiff was, that the land in Yamunanagar was acquired by the Government in the year 1962, and the entire amount of compensation was taken by Pt. Sita Ram The case of the plaintiff was, that in absence of this arrangement Pt. Sita Ram could have not claimed share of compensation of the piece of land in Yamunanagar. It was also pleaded, that in case defendants No. 1 & 2 succeeded in proving the case set up, that Pt. Sita Ram was the exclusive owner of the disputed property, then plaintiff had become owner of 1/6th share by way of adverse possession. In view of the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff is joint owner in possession of the suit land including garden to the extent of 1/6th share along with defendant Nos. 1 & 2? OPP 2. Whether in the partition between the then owners of the suit property the RSA No. 167 of 1986 -6- ***** entire property had come to the share of Sita Ram and whether now defendants No. 1 and 2 are exclusive owners in possession thereof?OPD 3. Whether after partition, there was any arrangement between the plaintiff and Sita Ram and whether thereunder the plaintiff became owner of 1/6th share in the suit property?OPP 4. Whether the suit is barred by res judicata?OPD 5. Whether the plaintiff is estopped from filing the present suit and claiming any title in the suit property?OPD 6. Whether the defendants are entitled to special costs? If so, to what amount?OPD 7. Whether defendant No. 4 is a bona fide purchaser for consideration of the trees of the disputed garden standing in the suit land and whether the sale in his favour is protected by Section 41 of the Transfer of Property Act ?OPD-4 8. Whether the suit is not maintainable in the present form?OPD 9. Whether the plaintiff is not entitled to the relief claimed in view of additional plea RSA No. 167 of 1986 -7- ***** Nos. 4 to 6 of the written statement of defendant No. 4 OPD-4 10. Whether the plaintiff, in the alternative, has become owner of 1/6th share in the disputed property by adverse possession ?OPP 11. Relief.” The learned trial Court took up issues No. 1 to 3 together. The learned trial Court held, that it was admitted case of both the parties, that in the partition between owners of the suit property, the entire suit property had come to the share of late Pt. Sita Ram. The exclusive possession and ownership of Pt. Sita Ram was declared in the subsequent suit decided vide judgment dated 1.2.1958, which was based on the report of the referee, submitted on 30.1.1958. The referee was Puran Chand Honi. In view of the admitted position above, the stand of the defendants No. 1 & 2, on these issues was that defendants No.1 and 2 were the exclusive owner in possession of the suit land having been inherited from late Pt. Sita Ram being his daughters. On the other hand, stand of the plaintiff was, that he was owner in possession of 1/6th share because of subsequent arrangement, which took place around the year 1958-59. The learned trial Court before recording a finding in favour of the plaintiff / respondent recorded, that in such type of cases the Courts generally do not believe the story of oral exchange, but it was due to certain circumstances, that this plea was to be accepted, RSA No. 167 of 1986 -8- ***** which were as under :- “1. That the plaintiff was throughout recorded as owner in possession of 1/6th share in the suit land i.e. jamabandi for the year 1962-63, Ex. P- 8 jamabandi for the year 1967-68, jamabandi Ex. P-9 for the year 1972- 73 and Ex. P1- jamabandi for the year 1975-76. The Court further noticed that all these entries were further recorded in the revenue record Ex. P11 & Ex.P12 and Ex. PX. On the basis of the revenue entries, the learned trial Court came to the conclusion that if the entire suit land was allotted to late Sita Ram, then he should have got these entries corrected by now by getting the mutation sanctioned in his favour as per the judgment of the year 1958. 2. The conduct of Pt. Sita Ram showed that on account of some subsequent arrangement, the plaintiff was admitted by him to be the owner in possession of 1/6th share in the suit land in lieu of some land of the plaintiff situated near Model Town, Yamunanagar. 3. Ex.P5 copy of mutation No. 141 attested on 6.10.1960 in favour of late Sita Ram, showed that he had taken share of Ram Narain in the suit land, therefore, it was the best opportunity for Sita Ram to get the share of the plaintiff, Shri Sham Sunder also mutated in his favour, which showed RSA No. 167 of 1986 -9- ***** some mutual arrangement between late Sita Ram and the plaintiff, Shri Sham Sunder. 4. Pt. Sita Ram received the compensation when the land of the plaintiff situated in Yamunanagar was acquired by the State Government vide Ex. P6, copy of the judgment passed by Shri Gurcharan Singh, the then learned District Judge, Ambala showing that Pt. Sita Ram got compensation for the land belonging to the plaintiff. The learned trial Court did not accept the plea of appellants / defendant, that the revenue entries were got changed wrongly. PW-1 Kalu Ram had stated, that the suit land was in joint possession of the plaintiff and daughters of Sita Ram, and that he had planted the trees at the instance of plaintiff and Pt.Sita Ram. The statement of PW-3 Sadhu Ram, also supported the case of the plaintiff, wherein he deposed, that the arrangement was arrived at in his presence. The learned trial Court, therefore, held that oral exchange was permissible without any registration, and decided all the issues in favour of the plaintiff and against the defendants. Issue No.4 was decided against the defendant / appellants, for the reason, that the plaintiff had not challenged the judgment and decree of the year 1958, but had taken a stand, that after the decree there was some oral arrangement between the parties. Issue No.5, was also decided in favour of the plaintiff, as RSA No. 167 of 1986 -10- ***** the defendants failed to show how the plaintiff was estopped from claiming ownership and possession in the suit land. This finding, on the face of it, is perverse, as the suit filed by the plaintiff, was not for ownership and possession. Issue No.6, was decided against the defendant / appellants. On issue No.7, the learned trial Court found, that the plea of bona fide purchaser was not applicable, as defendants No. 1 & 2 were not competent to dispose off the share of the plaintiff, therefore, vendee could not enforce this agreement against the plaintiff. Issue No.8 was also decided against the defendants and in favour of the plaintiff. On issue No. 9, the learned trial Court held, that in view of the findings on issues No. 1 to 3, referred to above, the suit deserved to be decided in favour of the plaintiff. On issue No. 10, the finding was recorded, that the plaintiff was joint owner in possession to the extent of 1/6th share, therefore, the question of him having become owner by adverse possession did not arise. This issue was decided in favour of the defendants and against the plaintiff. In view of the findings recorded above, the learned trial Court gave the following relief to the plaintiff / respondent :- “As a result of my findings on all the issues above, it follows that suit of the plaintiff is to be decreed because the plaintiff is a joint owner in possession of the suit land upto the extent of 1/6th share. The defendants cannot RSA No. 167 of 1986 -11- ***** cut or remove the timber from the suit land without getting the same partitioned. The suit is, accordingly, decreed hereby and a decree for permanent injunction is, accordingly, passed in favour of the plaintiff and against the defendants restraining the latter from cutting or removing any timber from the suit land without getting the suit land partitioned. In the circumstances, parties are left to bear their own costs. Decree sheet be drawn up and the file be consigned. Announced in open court.” The defendant / appellants preferred appeal against the judgment and decree passed by the learned trial Court. The learned Appellate Court did not accept the contention, that the plaintiff / respondent had set up a new case in the replication, by recording a finding, that the case set up by the plaintiff / respondent in the plaint was, that he was owner in joint possession of 1/6th share in the land, and the explanation given in the replication was in view of the stand taken by the defendants, in the written statement. The learned appellate Court also did not accept the contention of the learned counsel for the appellants, that in the copy of the judgment Ex. P-6, Sita Ram was awarded compensation in respect of 4 Bighas of land, whereas the stand of plaintiff was that he had given 3 Bighas and 16 Biswas of land to Pt. Sita Ram under the oral arrangement. The learned Appellate Court ignored, this important aspect by holding, that the value of the property in the fifties and RSA No. 167 of 1986 -12- ***** early sixties was not that much, therefore, no importance could be attached to the factum of transfer of land. The learned Appellate Court also held, that the oral exchange was not something uncommon in the old days, therefore, in view of the evidence led by the plaintiff, the plea of oral arrangement was rightly accepted by the learned trial Court, and by ignoring the contentions raised by the appellants affirmed the findings recorded by the learned trial Court. The learned Appellate Court also did not accept the plea of the appellants, that the remedy with the plaintiff, in the facts and circumstances, was to file a suit for partition. The learned Appellate Court rejected this contention, on the ground, that the plaintiff / respondent had sought injunction to restrain defendants from cutting and removing the trees only, and consequently dismissed the appeal. However, it may be noticed, that even though there was no prayer by the plaintiff / respondent, seeking declaration of ownership of 1/6th share, the Court decreed the suit for declaration holding the plaintiff / respondent to be owner in joint possession of 1/6th share, thus, entitled to injunction. Mr. C.B. Goel, learned counsel appearing on behalf of the appellants contended, that the following substantial questions of law arise for consideration by this Court, in this appeal :- 1. Whether the judgment and decree passed by the learned Courts below declaring the plaintiff / respondent to be owner of 1/6th share is outcome of misreading of evidence, thus, perverse ? RSA No. 167 of 1986 -13- ***** 2. Whether the learned Courts below could pass a decree for declaration of ownership in favour of the plaintiff / respondent though he was admittedly not in possession, and in fact had claimed permanent injunction limited to cutting of trees only ? 3. Whether in view of the plea of adverse possession taken by the plaintiff / respondent, the title to the property of defendants stood proved, therefore, the suit could not be held to be maintainable ? In support of the first substantial question of law, referred to above, the learned counsel for the appellants referred to the evidence led by the plaintiff, in support of his plea of ownership, to contend, that the plaintiff while appearing in the witness box had miserably failed to prove the factum of exchange. The contention of the learned counsel for the appellants was, that the plaintiff / respondent was not even able to connect the property, which was acquired and compensation paid vide Ex. P-6, to show that the property belonged to the plaintiff / respondent. The learned counsel for the appellants referred to the khasra numbers given in the partition deed of 1940, and decree passed in 1958, to show that Khasra numbers mentioned in the judgment Ex. P-6 did not co-relate with the ownership of the plaintiff. The contention, therefore, was that the learned Courts below misread the oral and documentary evidence to hold, that the plaintiff / respondent was owner of 1/6th share. RSA No. 167 of 1986 -14- ***** On consideration, I find force in the contention raised by the learned counsel for the appellants. This is a classic case of misreading of evidence, as the reasons given for accepting the oral exchange in absence of any proof, and transfer of property in pursuance to the exchange are not tenable. The plaintiff / respondent, though, claimed that 1/6th share i.e. the property in dispute was given to the plaintiff / respondent, but he failed to disclose the area given in Yamunanagar to defendant / appellants, specially, when khasra numbers mentioned in the judgment Ex. P-6 did not co-relate with the ownership of the plaintiff / respondent. In absence of proof of exchange and in view of the judgment and decree, in favour of the defendant / appellants, no reliance could have been placed on the revenue record to hold, that the oral exchange was proved. The learned Courts below also wrongly held, that Pt. Sita Ram had received the compensation for the land belonging to the plaintiff, even though, there was not an iota of evidence on record showing, that land belonged to the plaintiff / respondent, nor the judgment disclosed, that the compensation paid was 1/3rd to late Pt. Sita Ram and 2/3rd to the plaintiff / respondent. The reliance on Ex. P-6 to hold, that there was oral exchange was also outcome of misreading of the documentary and oral evidence. The learned trial Court also wrongly paid much importance to the revenue entries by ignoring the well settled law, that the revenue record is only a record of the right, to which the presumption of truth is attached, which is rebuttable. In the present RSA No. 167 of 1986 -15- ***** case by producing the judgment and decree of 1958, it was proved, that the revenue record did not depict the correct picture, as oral exchange was not recorded in the revenue record. Furthermore, in view of the stand taken in the replication, the plaintiff / respondent had taken a contradictory stand claiming ownership by way of adverse possession thereby admitting the ownership of the defendant / appellants. This Court in the case of Banarsi Dass Vs. Neel Kanth and others 2007(2) RCR (Civil) 126, was pleased to lay down as under :- “9. That apart, the appellant had also tried to set up a case of ownership on the strength of a Will allegedly executed by one Munshi Ram, who was living in the ground floor of the house in question since long. The plea of ownership as sought to be raised by the appellant and the plea of adverse possession are mutually destructive of each other. In the plea of adverse possession, the ownership of the true owner is admitted, but when a Will is sought to be set up, then the person doing so, claims ownership as devolving upon him on the strength of such Will. Both these pleas are inconsistent and not tenable.” Thus, in view of the law laid down by this Court, the plea of ownership raised by the plaintiff / respondent could not be accepted, specially when the issue of ownership was collateral issue in a suit for injunction only. However, keeping in view the frame of the suit, it was necessary for the Court to have recorded the finding of ownership, RSA No. 167 of 1986 -16- ***** as in absence thereof, the plaintiff / respondent could not claim any right in the trees, which go with the ownership. This Court in the case of Gurcharan Singh Vs. Gram Panchayat, Jagral and another 1999(2) PLJ 320, was pleased to lay down, that plea of adverse possession leads to the conclusion, that ownership of the person against whom adverse possession is claimed stands admitted. This view was also taken by this Court in the case of Murti Shri Durga Bhawani (Hetuwali) Trust Vs. Harbhajan Singh and another 1987 P.L.J. 555. This Court again in the case titled as Communist Party, Ropar and others Vs. Sant Saran Bhalla (Dead) through his L.Rs and Others 2007(3) RCR (Civil) 361, was pleased to lay down as under :- “15. The argument that the plaintiffs have not appeared as witnesses is again not tenable. The plaintiffs have proved their title by virtue of documentary evidence. Even in the absence of documentary evidence, the title of the plaintiffs stands proved when the defendants raise the plea of adverse possession. The plea of adverse possession by necessary implication means admission of title of the