IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Misc. No. 13046-C of 2010 in/and R.S.A. No. 2107 of 2010 (O&M) Date of decision: November 17, 2011 Satnam Singh and others .. Appellants Vs. Gurbax Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Amit Rawal, Advocate for the appellants. A.N. Jindal, J CM Nos. 13046 and 6406 -C of 2010 Heard. For the reasons as mentioned in the applications, the same are allowed and the delay in filing as well as in re-filing the appeal is condoned. CM No. 6407-C of 2010 This is an application for impleading legal heirs of the deceased respondent Makhan Singh, who died on 3.10.1998, leaving behind respondents No.3 to 6 as his legal heirs. The instant miscellaneous application is allowed subject to all just exceptions and respondents No.3 to 6, are ordered to be brought on record, as legal heirs of the deceased Makhan Singh. R.S.A. No. 2107 of 2010 (O&M) A suit was filed by Gurbax Singh and Harbans Singh sons of Vir Singh plaintiffs- respondents (herein referred as, 'the plaintiffs') for possession of the land as fully detailed in the head note of the plaint, which was partly decreed, vide judgment and decree dated 31.3.2005, in their favour and against the defendants-appellants (herein referred as, 'the appellants') except Khasra No.37/9/1 with costs. The appeal preferred by the appellants-defendants Satnam Singh, Mehtab Singh, Gurnam Singh, Waryam Singh, Sucha Singh, Dilbagh R.S.A. No. 2107 of 2010 (O&M) -2- *** Singh, Balkar Singh and Gurmit Singh was dismissed by the learned Additional District Judge, Amritsar on 25.4.2008. Balkar Singh and Sucha Singh have not filed any appeal but the remaining defendants have come up in this regular second appeal. The plaintiff Gurbax Singh and Harbans Singh (now deceased represented by the legal heirs) are the sons of Vir Singh. They filed a suit for possession of the land as fully detailed in the heading of the plaint, with the allegations that Buta Singh son of Ganda Singh resident of village Ghukewali was a co-sharer, prior to the consolidation of the land holding in village Gukewali, Tehsil Ajnala, District Amritsar in a big khata No.60, khatoni No.4, comprised of 525 kanals 5 marlas. Thereafter, he sold land measuring 41 kanals 19 marlas along with his land in shamlat deh on 6.3.1959 to Kundan Singh and Amrik Singh. It was further averred that the respondents had got vacated the said land and had taken the possession of the same along with shamlat deh comprised in killa No.27/1/2 and 37/9/1, on the basis of the preemption decree dated 13.6.1960. It was also averred that since then the respondents had built a house over killa No.27/1/2 and 37/9/1, had let it to the Grain Market. Tara Singh son of Santa Singh was also one of the co-sharers in the said land. He had filed an application under Section 111 of the Punjab Land Revenue Act in the year 1975 for partition of the big khata wherein they were served. However, the partition proceedings were interse between the co-sharers as recorded in the khata. Since the respondents as well as Buta Singh, Pritam Singh and Hazara Singh were shown as co- shareres due to incorrect revenue record in connivance with the revenue officials, therefore, they got the land measuring 29 kanals 11 marlas entered in their name in the revenue record and they also got the land measuring 10 kanals 9 marlas in shamlat deh allotted to them. The plaintiff had also pleaded that on account of the preemption decree dated 13.6.1960, the respondents have become owners, therefore, Buta Singh, Pritam Singh and Hazara Singh have no title or interest in the suit land. As such, the entries in revenue record to that extent are required to be corrected. The plaintiffs had also filed a suit No.126 in the year 1982 for claiming their ownership over the suit land which was decreed on15.11.1983. After R.S.A. No. 2107 of 2010 (O&M) -3- *** coming to know about the partition, the plaintiffs approached the Assistant Collector, Ajnala for correction of the partition order, but the Assistant Collector, Ajnala did not agree and had acceded to the request of the plaintiffs, consequently, the order of partition was confirmed on 2.7.1980. The plaintiffs have further pleaded that the suit land was partitioned as per partition proceedings. In nutshell, it has been urged that since in view of the preemption decree, the partition proceedings have been annulled by the Financial Commissioner, Punjab, Chandigarh. No fresh partition was effected, therefore, the plaintiffs were entitled to take possession because the defendants could not retain the possession of the suit land after 10.2.1992 on the strength of the order of the partition. Notice of the suit was issued, wherein the defendants No.1 to 10, 13 to 17 and 21 to 22 contested the partition. Besides taking many preliminary objections, it was pleaded that since the plaintiffs were not a party to the said decree of preemption dated 15.11.1983, therefore, Tara Singh one of the co-sharer had applied for partition before the authorities consequently, the land was partitioned. They being not the party to the preemption proceedings, the decree is not binding qua them. However, they admitted the fact that the land was allotted to the extent of 3/5th share to Mukhtar Singh, Kartar Singh and Karnail Singh son of Boor Singh and 2/5th share to Achhar Kaur wife of Gulzar Singh, but they further pleaded that the plaintiffs had no share in the suit land and the defendants are its owners. The partition proceedings were never quashed. They have also claimed adverse possession over the suit land in the alternative. Replication has also been filed. From the pleadings of the parties, the trial court vide order dated 22.2.2000 framed the following issues :- 1. Whether the plaintiffs are owners of the suit land?OPP 2. Whether the plaintiffs are entitled to the possession of the suit land?OPP 3. Whether the suit is within time?OPP 4. Whether the plaintiffs have got no locus standi to file the present suit?OPD R.S.A. No. 2107 of 2010 (O&M) -4- *** 5. Whether the plaintiffs have got no cause of action to file the present suit?OPD 6. Whether the suit is properly valued for the purposes of court fee and jurisdiction?OPP 7. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct?OPD 8. Relief. Later on, on 4.11.2004, the trial court framed the following additional issue : 7-A. Whether this court has jurisdiction to entertain and try the present suit?OPP In order to prove their case, the plaintiffs examined Baldev Raj Sharma (PW1), Dhir Singh Numberdar (PW2) and Gurbax Singh (PW3). In order to rebut the evidence led by the plaintiffs, the defendants examined Charan Singh (DW1), Virsa Singh (DW2), David Masih (DW3), Avtar Singh (DW4) and Gurmit Singh (DW5). On scrutiny of the evidence, the trial court decreed the suit of the plaintiff for possession except khasra No.37/9/1 and their appeal was also dismissed. Arguments heard. Record perused. There is no dispute regarding the fact that whole of the khata was joint of the parties including shamlat deh. It is also not in dispute that Buta Singh was co-sharer in the suit land as well as in the shamlat deh. It is also established on record that Buta Singh had sold 32 kanals 11 marlas along with right in the shamlat deh to Amrik Singh and Kundan Singh and against whom Gurbax Singh filed a suit for pre-emption which was decreed on 15.11.1983. It is also not in dispute that Tara Singh one of the co- sharers had filed an application for partition of joint khata in the year 1975. At that time, the decree for preemption dated 13.6.1960 was not acted upon, therefore, the entries in the revenue record indicated the same position as was prior to 13.6.1960, therefore, the partition was effected according to the entries in the revenue record. It is established on the record that as soon as R.S.A. No. 2107 of 2010 (O&M) -5- *** the respondents came to know about the partition proceedings they challenged the same. Ultimately, vide order dated 10.2.1990, copy of which is Ex.PG, the partition proceedings were annulled by the Financial Commissioner, Punjab, Chandigarh. Thus, the respondents approached the revenue authorities for getting the possession of the disputed land which they could not receive through the revenue court, therefore, they had knocked the door of the civil court. The suit is clearly within limitation as it has been filed on 29.8.1998. Earlier there was litigation between the parties with regard to validity of the order of pre-emption and they continued litigating regarding partition proceedings after they became entitled to the right in the property in the year 1992, they filed the suit in the year 1998. Even otherwise, since the respondents are co-sharers in the suit land, the question of suit being time barred does not arise. On scrutiny of the case, it transpires that the concurrent findings of both the courts below, are well founded and well reasoned. No substantial question of law arises in this case for determination. Dismissed in limine. November 17, 2011 (A.N. Jindal) deepak Judge