RSA No.4726 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4726 of 2011 (O&M) Date of Decision: 01.12.2011 Satpal Singh & Anr. ...Appellants Vs. Col.Joginder Singh & Anr. Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL --- Present: Mr.B.K.Bagri, Advocate, for the appellants. --- A.N.Jindal, J. CM No.13765-C of 2011 For the reasons stated in the application, the same is allowed and the delay of 7 days in filing the appeal is condoned. RSA No.4726 of 2011 Civil Judge (Junior Division), Rewari, vide judgment dated 7.08.2009 dismissed the suit for declaration and possession filed by the plaintiff, however the said judgment was reversed in appeal and the suit was decreed to the effect that the plaintiff is entitled to get corrected Naksha B, Naksha Zeem and instrument of partition being RSA No.4726 of 2011 2 defective and requires to be rectified by adding Rect No.44 Killa No.9/2 (2-0) is liable to be added in the share of the plaintiff. He was also found entitled for a decree for possession and both the defendants were directed to hand over the vacant possession of Rect. No.44 Killa No.9/2 (2-0) to the plaintiff. However, the plaintiff was directed to affix the court fee as per value of Killa No.9/2 at the time of filing of the suit. On the pleadings of the parties, the trial court framed the following issues: 1. Whether the plaintiff is entitled to get Naksha B Naksha Zeem and instrument of partition corrected on the ground of clerical error? OPP 2. Whether the plaintiff is entitled to get the vacant possession of Killa No.9/2 from defendant Nos. 1 and 2 and also entitled for the damages on account of illegal use and occupation by defendant No.1 and 2? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the plaintiff has no cause of action against defendant Nos. 1 and 2? OPD 5. Whether the plaintiff is estopped from filing the present suit? OPD 6. Whether the court has no jurisdiction to decide the present case? OPD RSA No.4726 of 2011 3 7. Whether the suit of the plaintiff is not maintainable? OPD 8. Whether the defendant No.1 has become owner and in possession by way of adverse possession? OPD 9. Whether the plaintiff has not affixed the proper court fee as alleged? OPD 10. Relief. Both the parties led oral as well documentary evidence. The trial trial court dismissed the suit, however, the judgment was reversed in appeal and the suit was decreed. Arguments hared. Record perused. In para No.19 learned lower appellate court has observed as under;- “19. In the present case, the appellant/plaintiff has prayed for a decree of possession of Killa No.9/2 (2-0) but the respondents-defendants raised the plea that even the appellant-plaintiff has not affixed the court fee. Deficiency of court fee can be made good at any stage in the present case. The appellant-plaintiff is also entitled for a decree of possession and hence, the appellant/plaintiff is directed to affix the court fee as per value of killa No.9/2 at the time of filing of the present suit. 20. In view of above, the findings of the learned lower RSA No.4726 of 2011 4 court on issues No.1, 2 and 8 are erroneous and same are hereby set aside and issues Nos. 1 and 2 are decided in favour of the appellant/plaintiff to the effect that the appellant/plaintiff is entitled for to Naksha Bay, Naksha Zeem and instrument of partition corrected as it was a clerical error and he is entitled to vacant possession of killa No. 9/2 from the defendant Nos 1 and 2 and issue No.8 is decided against the defendant No.1 that he has not become owner by way of adverse possession and issues Nos. 6and 7 are also decided against the defendants, the civil court has jurisdiction in the matter and this suit of the plaintiff is maintainable.” A perusal of the chart and mutation Ex.PZ shows that total area of the land which comes to the share of the plaintiff has wrongly been mentioned as 23 kanals 19 marlas, whereas it was actually 21 kanals 19 marlas. Jamabandi Ex.PX for the year 2003-04 indicates that plaintiff is owner in possession of killa No.9/2. Thus, it is clear that there is clerical mistake in Naksha B, Naksha Zeem and instrument of partition. Even, the plea of adverse possession as set up by the defendants is of no consequence as the defendants admit the ownership of the plaintiff and state that the suit land was partitioned. The findings recorded by the first appellate court are based on appreciation of evidence in the right perspective and the RSA No.4726 of 2011 5 same does require interference by this court. No question of law much less substantial question of law arises for determination in this regular second appeal. Dismissed in limine. (A.N.Jindal) 1.12.2011 Judge rp