RSA No.391 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.391 of 2009 Date of Decision:03.05.2010 Kishori Lal .... appellant Versus Jaswant Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sudhir Aggarwal,Advocate for the appellant Mr.Lokesh Sinhal, Advocate for respondent Nos.1 and 2. **** RAKESH KUMAR GARG J. This is plaintiff's regular second appeal challenging the judgement and decrees of the courts below whereby his suit for possession on the basis of ownership of the suit land has been dismissed. As per the averments made in the suit, appellant is the owner of the suit land as per the jamabandi for the year 1997-98. Previously, khewat was joint and the same was partitioned in the year 1997. At the time of partition, separate possession of the land as detailed in para No.1 of the plaint was delivered to him. In support of his claim, plaintiff relied upon a copy of Sanad Takseem, copy of mutation and Rapat Rojnamcha along with the plaint. Taking advantage of the absence of the RSA No.391 of 2009 2 plaintiff, respondents encroached upon the suit land in October 1998. On coming to know about the encroachment he made request to the respondents for vacating the suit land. However, the same was of no use. Hence the present suit. The suit was contested by the respondents. According to them the parties to the suit are co-sharers in the suit land and the plaintiff was not entitled to the relief claimed in the suit. It was further averred that the entries that came to be recorded in the revenue record due to the implementation of the partition in the revenue record were liable to be deleted as the Sanad Takseem and Rapat Rojnamcha were illegal and not binding on the respondents as the partition referred to in the plaint was set aside by the Commissioner, Gurgaon vide order dated 19.11.1997 with a direction to decide the matter afresh. The allegation of encroachment was denied. It was claimed that partition proceedings were still pending between the parties and therefore suit of the appellant was liable to be dismissed. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner in possession of the land in question as mentioned in para no.3 of the plaint?OPP 2. If issue No.1 is proved, whether the plaintiff is entitled to decree for possession?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD 5. Whether there is no cause of action to file the present suit?OPD 6. Relief. RSA No.391 of 2009 3 The parties led their respective evidence. After hearing learned counsel for the parties, the courts below found that the appellant failed to prove himself to be the exclusive owner of the suit land and he was found to be a co-sharer. Therefore, he was held not entitled to the possession of the suit land. Not satisfied with the judgement and decrees of the courts below,the instant appeal has been filed. Learned counsel for the appellant has vehemently argued that the courts below have not appreciated the fact that the joint khewat of the parties was already partitioned by the competent authority and the same was duly incorporated in the revenue record and that the orders of Sanad Takseem dated 08.11.1996 was never challenged by the respondents before any competent authority and thus the same cannot be held to be illegal and therefore the impugned judgement and decrees of the courts below were liable to be set aside. Elaborating further, learned counsel for the appellant has vehemently argued that vide order dated 04.10.1996 Naksha Be was approved by the revenue authority while dismissing the objections filed by the respondents. The aforesaid order was set aside only on 19.11.1997 and a direction was given to decide the matter afresh. However, during the aforesaid period, there was no interim stay and Sanad Takseem was prepared on 08.11.1996 and the same was implemented by delivering the possession of the suit land and incorporating the entries in the revenue record. However, the courts below have ignored the aforesaid Sanad Takseem issued in favour of the appellant. On the basis of the aforesaid arguments, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: 1. Whether Sanad Takseem is not sufficient to prove that the land has been partitioned specifically when same RSA No.391 of 2009 4 was incorporated in the revenue record? 2. Whether the civil court has jurisdiction to hold that the land is still joint despite the fact that the orders passed by revenue authorities have not been challenged? 3. Whether the finding of the courts below is not contradictory to the judgement and decree dated 06.10.2007 passed in Civil Suit No.16 of 2004 'Jag Ram vs.Kishori Lal and others'? 4. Whether the finding of both the courts below is not perverse? 5. Whether after the implementation of instrument of partition in the revenue record it can be said that the land is still joint? On the other hand, learned counsel for the respondents has supported the impugned judgement and decrees of the courts below by submitting that the Sanad Takseem issued on 08.11.1996 was not legal and the same was rightly ignored by the courts below as the very basis of the aforesaid Sanad Takseem i.e. order dated 04.10.1996 is not in existence and the same was set aside vide order dated 19.11.1997 and therefore, no interference is called for in the findings of facts recorded by the courts below. I have heard learned counsel for the parties and perused the impugned judgement and decrees. It is not in dispute that parties are co-sharers. The appellant is claiming exclusive possession of the suit land on the basis of Sanad Takseem dated 08.11.1996. Again, it is not in dispute that the aforesaid Sanad Takseem in favour of the appellant was issued on the basis of order dated 04.10.1996 of the revenue authority which was set aside by the appellate authority vide order dated 19.11.1997. Once that is so, no fault RSA No.391 of 2009 5 can be found with the findings of fact recorded by the courts below that parties were co-sharer of the suit land and the plaintiff-appellant has failed to prove that he was exclusive owner of the same as claimed by him. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.05.2010 neenu