Regular Second Appeal No. 1412 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1412 of 2009 Date of decision : October 05, 2010 Raman Kumar ....Appellant versus Davinder Kumar and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. B.R.Mahajan, Advocate, for the appellant Ms Jai Shree Thakur, Advocate, for the respondents L.N. Mittal, J. (Oral) This is second appeal by Raman Kumar son and legal representative of original plaintiff Roshan Lal since deceased having remained unsuccessful in both the courts below. Plaintiff Roshan Lal alleged that he is owner of the suit land measuring 2 kanals 10 marlas which is part of khasra no. 480/2. Om Parkash Maini predecessor of defendants/respondents no. 1 to 6 illegally occupied 1 kanal land out of it whereas Dalip Singh defendant no. 7 (since deceased and represented by respondents no. 7 to 10) occupied 1 kanal 10 marlas land out of the suit land behind the back of the plaintiff. They also Regular Second Appeal No. 1412 of 2009 -2- got corrected khasra girdawari in their favour vide order dated 30.10.1981 of Circle Revenue Officer illegally. Defendants are in illegal possession of the suit land. Plaintiff being owner thereof is entitled to its possession. Accordingly, the plaintiff filed suit for possession of the suit land measuring 2 kanals 10 marlas being part of khasra no. 480/2. Defendants, inter-alia, pleaded that previous suit filed by Roshan Lal plaintiff against Om Parkash and Dalip Singh stands dismissed and the present suit is not maintainable. Plaint allegations were controverted. Various preliminary objections were raised. It was pleaded that plaintiff is not owner of the suit land. Defendants no. 1 to 6 are in possession of 1 kanal land whereas defendant no. 7 is in possession of 1 kanal 10 marlas land since the year 1955 as owners. Sale certificate was issued in their favour by Consolidation Department and this fact was proved in the previous suit. Possession of the defendant is continuous and uninterrupted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalalabad vide judgment and decree dated 14.10.2003 dismissed the plaintiff's suit. First appeal filed by the plaintiff through his legal representative stands dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 18.8.2008. Feeling aggrieved, the plaintiff's legal representative has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant referring to documentary Regular Second Appeal No. 1412 of 2009 -3- evidence on record contended that 6 kanals 10 marlas land of khasra no. 681 min was sold to plaintiff Roshan Lal by Rehabilitation Department vide sale certificate dated 30.7.1965, Ex. P/2 on the basis of auction held on 18.10.1959 for which the plaintiff was highest bidder. Pursuant thereto mutation Ex. P5 was sanctioned in favour of the plaintiff wherein old khasra no. 681 min as well as new khasra no. 480/2 measuring 6 kanals 10 marlas has been mentioned and accordingly the plaintiff became owner in possession of the entire khasra no. 480/2 measuring 6 kanals 10 marlas. It was also contended that in the injunction suit instituted by plaintiff Roshan Lal against Om Parkash and Dalip Singh, learned Sub Judge Ist Class, Ferozepur vide judgment dated 12.12.1984 Ex. P9 held that plaintiff is not proved to be owner of 2 kanals 10 marlas land which was in possession of defendants Om Parkash and Dalip Singh but this finding of the trial court was set aside in first appeal by learned Additional District Judge, Ferozepur vide judgment dated 22.12.1987 Ex. P21 wherein the question of ownership of the suit land was kept open as it was simple suit for injunction. Since plaintiff was in possession of 4 kanals land of khasra no. 480/2, decree of trial court regarding the same was upheld whereas injunction suit regarding suit land measuring 2 kanals 10 marlas stood dismissed as defendants were found in possession thereof. It was accordingly contended by learned counsel for the appellant that ownership over the suit land was not decided in the previous suit whereas from the documentary evidence in the present suit plaintiff is proved to be owner of the suit land. Pursuant to mutation Ex. P5, the plaintiff was recorded to be owner of the suit land in subsequent Regular Second Appeal No. 1412 of 2009 -4- jamabandies placed on record, it was contended by learned counsel for the appellant. On the other hand, learned counsel for the respondents contended that vide conveyance deed dated 5.7.1961 Ex. DW5/1 property mentioned therein was transferred to Manohar Lal with effect from 1.10.1955. It was also contended that Manohar Lal sold it to Jasbir Kaur who sold it to Dalip Singh defendant no. 7 vide sale deed dated 15.2.1967 Ex. D1/B. It was also contended that vide conveyance deed dated 30.8.1983 Ex. D10 property mentioned therein was transferred to Om Parkash predecessor of defendant nos. 1 to 6 with effect from 1.10.1955 and thus, defendants are owners in possession of the suit property. Reference in this regard was also made to valuation reports Ex. D2 and D3 regarding valuation of the properties conveyed by conveyance deeds Ex. DW5/1 and Ex. D10. I have carefully considered the rival contentions. Plaintiff's documentary evidence clearly proves that plaintiff is owner of 6 kanals 10 marlas land of khasra no. 480/2. Suit land measuring 2 kanals 10 marlas is admittedly part of said khasra no. 480/2. Even learned counsel for the respondents herself submitted that suit land is part of khasra no. 480/2. Sale certificate Ex. P2 depicts that 6 kanals 11 marlas land of khasra no. 681 min was sold to plaintiff Roshan Lal being highest bidder in the auction held on 18.10.1959. Pursuant thereto mutation Ex. P5 was sanctioned in favour of Roshan Lal regarding 6 kanals 10 marlas land of khasra no. 480/2 which was new khasra number of old khasra no. 681 min. Both old khasra Regular Second Appeal No. 1412 of 2009 -5- no. 681 min and new khasra no. 480/2 have been mentioned in mutation Ex. P5. Thereafter the plaintiff was recorded as owner of entire 6 kanals 10 marlas land including 2 kanals 10 marlas land in suit in subsequent jamabandies placed on record. Thus, it is manifest from documentary evidence that the plaintiff is owner of the suit land measuring 2 kanals 10 marlas which is part of khasra no. 480/2. On the other hand, in none of the documents relied on by the defendants as referred to herein above, khasra no. 480/2 has been mentioned. On the other hand, properties in conveyance deeds Ex. DW5/1 and Ex. D10 have been described by boundaries and not by khasra number. The said properties or the properties mentioned in valuation reports Ex. D2 and Ex. D3 have not been linked with khasra no. 480/2. There is no evidence on record to depict that the properties mentioned in the aforesaid documents are part of khasra no. 480/2. Properties mentioned in these documents have not been linked with the suit land. Faced with the aforesaid situation, learned counsel for the respondent referred to copy of demarcation report which was made in the previous injunction suit. However, this report simply depicts that Om Parkash and Dalip Singh were in possession of 2 kanals 10 marlas land of khasra no. 480/2. However, this demarcation report does not even remotely depict that the properties conveyed to Manohar Lal and Om Parkash vide conveyance deeds Ex. DW5/1 and Ex. D10 are part of khasra no. 480/2. It is, thus, manifest that defendants are not owners of the suit land measuring 2 kanals 10 marlas being part of khasra no. 480/2. On the other hand, plaintiff Regular Second Appeal No. 1412 of 2009 -6- is proved to be owner thereof. In fact, properties conveyed to Manohar Lal and Om Parkash vide conveyance deeds Ex. DW5/1 and Ex. D10 appear to be located towards south of the suit land as mentioned in the boundaries of the suit land by the plaintiff himself. In no way defendants are proved to be owners of the suit land which is part of the khasra no. 480/2 nor any part of the suit land was allotted or transferred to defendants or their predecessors vide conveyance deeds Ex. DW5/1 and Ex. D10. From the aforesaid discussion, it emerges that following substantial question of law arises for determination in the instant second appeal:- “Whether the finding of the courts below that plaintiff is not owner of the suit property is based on misreading and misappreciation of evidence and is perverse and illegal and therefore, not legally sustainable ?” For the reasons recorded hereinabove, the aforesaid substantial question of law is answered in favour of the plaintiff-appellant. It is held that plaintiff is proved to be owner of the suit land and finding of the courts below to the contrary is completely perverse and illegal and based on misreading and misappreciation of evidence. The plaintiff being owner of the suit land is entitled to seek possession thereof as defendants are in illegal occupation of the suit land. Courts below erroneously non-suited the plaintiff by recording perverse and illegal finding. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed. Judgments and decrees of both the courts below Regular Second Appeal No. 1412 of 2009 -7- are set aside and suit filed by the plaintiff-appellant is decreed for possession of the suit land. The parties are, however, left to suffer their respective costs throughout. ( L.N. Mittal ) October 05, 2010 Judge 'dalbir' Regular Second Appeal No. 1412 of 2009 -8-