RSA No.1162 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1162 of 1992 Date of Decision: 9.3.2009 Nand Singh alias Naranjan Singh ..Appellant Vs. Natha Ram (dead through L.Rs.) ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.A.K.Chopra, Sr. Advocate, with Mr.Rajnish Chauhan, Advocate, for the appellant. Mr.S.K.Singla, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) Plaintiff/Appellant brought a suit for declaration that the plaintiff is in possession of 11 kanals 4 marlas of land as owner with RSA No.1162 of 1992 2 consequential relief of permanent injunction restraining the defendant from dispossessing him from the suit land or from alienating the same. It was claimed by the plaintiff/appellant that he was owner in possession of the suit land and has been sowing different crops, the defendant/respondent was threatening to dispossess the plaintiff from the land in dispute and also wanted to alienate the same though he has no such right. The plaintiff claimed that on inquiry it was revealed that the defendant purchased the suit land from the plaintiff and mutation stood sanctioned in his favour. Plaintiff also claimed that if any sale deed is proved the same is the result of fraud and misrepresentation, undue influence and, therefore, not binding on him. The plaintiff claimed that the defendant had already filed a suit in the court of Sub Judge, Nakodar on the basis of alleged fictitious sale deed which was dismissed on 29.11.1966 and the appeal filed by the defendant was dismissed by the learned Additional District Judge, Jalandhar on 27.1.1970. It was also claimed that in the suit filed by the defendant-respondent it was held that the plaintiff was not the owner of the suit land nor was in possession of the same. On notice the defendant appeared and filed written statement controverting the material facts and stated that the plaintiff was neither owner nor in possession of the suit land and therefore, the suit was not maintainable. The land in suit was said to be owned by the defendant and one Lachhu who has been in possession of the land in dispute as a tenant under the defendant. It was also pleaded that the plaintiff/appellant is estopped from filing the present suit against the defendant. Locus standi of the plaintiff to maintain the suit was also challenged. It was also claimed RSA No.1162 of 1992 3 that the claim of the defendant was not barred by principle of res judicata because the mistake was of the consolidation authorities which has been later on rectified. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is owner of the land? OPP 2. Whether the land is in possession of Lachhu as tenant under the plaintiff? OPD 3. Whether the defendant has purchased the suit land from the plaintiff? OPD 4. Relief. Issues No.1 to 3 were taken up together, wherein learned trial court was pleased to hold that the stand taken by the plaintiff/appellant was that he is owner of the suit land and is in possession of the same. It was also held that he has not sold the suit land to the defendant. In support thereof reliance was placed on the copy of Jamabandi Ex.P.1 in which the plaintiff was shown to be owner in possession of the suit land. Learned trial court however, observed that in the Jamabandi there is a red entry regarding the sale by the plaintiff to the defendant of Khasra No.50/20/2 (1-14) and 56/3/2(3-12) and 4/1 (1-10). Copy of judgment passed by Shri R.L.Garg, Additional District Judge was also placed on record showing the dismissal of appeal. In the said appeal findings were against the defendant/respondent, regarding the sale of land qua two numbers. The defendant/respondent had taken a stand that he is owner in possession of the suit land in pursuance to the purchase. Learned trial court, RSA No.1162 of 1992 4 therefore, on the the basis of evidence brought on record was pleased to record the following findings:- “ I have compared the khasra numbers given in the decree sheet. Ex.P.8 with that of suit land. These khasra numbers does not tally with the khasra numbers given in the suit land. The khasra numbers given in decree sheet Ex.P.8 are number as given of 50/25 (6-2), 21(7-12) and 22 (8-11). The evidence of the plaintiff specially revenue record i.e. jamabandies relied upon by the plaintiff itself goes against the plaintiff. The plaintiff as per jamabandies is only proved to be the owner of 4-8 malras out of khasra No.50/20. As regarding possession over the suit land I find that khasra girdawari Ex.P.3, P.4 and P.10 shows that plaintiff is in possession of suit land through Lachhu. There is no other document to show possession of the defendant over the suit land. Therefore, from the evidence I hold this issue accordingly declaring plaintiff as owner of 4k -8 mls out of khasra No.50//20 (6-2) only out of suit land and plaintiff is proved in possession of suit land through Lachhu. I hold these issues accordingly.” Thus, in view of the findings recorded above the suit of the plaintiff for declaration was decreed qua 4 kanals 8 marlas of land out of Khasra No. 50//20 (6-2); for remaining land injunction was granted in favour of plaintiff/appellant. In the appeal judgment and decree passed by the learned trial court stands affirmed. RSA No.1162 of 1992 5 Learned senior counsel for the appellant raised the following substantial questions of law for consideration in this appeal: 1. Whether the judgment and decree passed by the learned courts below are the outcome of misreading of documents Ex.P.1 and P.2 and the statement of Patwari who appeared as DW 1 in support of the entry in the remarks column? 2. Whether the entries in the remarks column in the absence of sale deed are liable to be ignored? 3. Whether the defendant/respondent has failed to prove the alleged sale deed in his favour by leading cogent evidence? In support of the substantial questions of law learned senior counsel appearing on behalf of the appellant contends that the judgments and decree of the learned courts below vide which relief of declaration qua 6 kanals 6 marlas of land has been declined to the plaintiff/appellant cannot be sustained as the findings are the outcome of misreading of document Exs.P.1 and P.2 on record. The contention of the learned senior counsel is that Exs.P.1 and P.2 i.e. Jamabandis clearly show that the plaintiff/appellant was owner in possession of the suit land and that red ink entry which is the basis for non-suiting the plaintiff/appellant was not supported by DW 1 while appearing in the witness box. Learned senior counsel contends that DW 1 admitted that while making red entry qua the sale deed the defendant/ respondent had not RSA No.1162 of 1992 6 produced any sale deed nor any sale deed was on record. However, on consideration of the matter, I find no force in the contentions raised by the learned senior counsel. Exs. P.1 and P.2 are the documents on the basis of which the plaintiff sought to be declared as owner in possession of the property in dispute. In the suit he nowhere challenged the entries made in red ink in the jamabandis i.e. the very basis of suit. Furthermore, in the present case it may be noticed that there was a dispute inter se between the parties prior to the filing of the suit which was filed by the defendant/respondent in which he had claimed possession on the basis of sale deed. Though the defendant/respondent had failed in the said suit for want of connecting the land in dispute with the sale deed, however, sale deed was upheld, which showed that plaintiff had sold land in favour of defendant/respondent. It is also not in dispute that mutation was sanctioned in favour of the defendant-respondent which was produced on record as Ex.D.2 and appeal filed by the plaintiff/appellant against the said decision also failed. The plaintiff for the reasons best known to him chose not to challenge the orders passed by the revenue courts and filed suit for declaration on the basis of ownership by ignoring the revenue record. The contention of the learned senior counsel that remarks in the column were liable to be ignored for want of evidence in support thereof also cannot be sustained - firstly for the reason that Ex.P.7 was produced by the plaintiff/appellant himself i.e. the previous judgment inter se between the parties wherein it was shown that part of the land was sold by the RSA No.1162 of 1992 7 plaintiff/appellant in favour of the defendant-respondent and red ink entries in the Jamabandi further find support from mutation Ex.D.2 brought on record. Therefore, no error can be found with the orders passed by the learned courts below holding that the plaintiff has failed to prove his ownership qua 6 kanals 6 marals of land qua which red ink entry was made in the revenue record. The plaintiff was to stand on his own legs and merely because the defendant/respondent had failed to produce the sale deed on record or to prove the same, cannot be a ground to decree the suit in favour of the plaintiff in view of the judgment Ex.P.7 on record. The learned courts below, thus, in the facts and circumstances of the case rightly granted injunction in favour of the plaintiff qua the whole land by declaring him to be owner of 4 kanals 8 marlas of land qua which there was evidence of ownership. The substantial questions of law are answered against the appellant/plaintiff and in favour of the defendant/respondent. The appeal is, consequently, ordered to be dismissed but with no order as to costs. 9.03.2009 (Vinod K.Sharma) rp Judge