Bhagwan Singh vs Madan Lal and Another

N.K. Kapoor, J.—This is Plaintiff''s second appeal against the judgment and decree of the learned Additional District Judge, reversing in appeal the judgment and decree of the trial Court vide which the suit filed by the Plaintiff for possession was decreed.

Briefly put, Plaintiff filed suit for possession of land measuring 15 Kanals 2 Marias as detailed in the head note of the plaint on the allegations that suit land belonged to Raj Kumar, Kailash Kumar, Ashok Kumar (sons), Raj Kumari and Parveen Kumari (daughters) and Smt. Pritam Devi widow of Ved Parkash who sold this land to the Plaintiff vide two sale deeds dated 16.5.1979 and 20.3.1978. According to the Plaintiff, the Defendants are in illegal possession of the suit land.

Defendants in their written statement denied the factum of execution of the two sale deeds as well as their validity. It was also denied that the Plaintiff is a bona fide purchaser for value without notice. According to the case of the Defendants, Sadhu Ram father of the Defendants was owner of land at village Prima Chack in the State of Jammu, whereas Ved Parkash was allotted the suit land in village Shikar, Tehsil Batala. There was a mutual exchange of land between Sadhu Ram and Ved Parkash and ever since the exchange, Sadhu Ram and thereafter his predecessor-in-interest have become owners of the suit land. According to the Defendants, the Plaintiff as well as heirs of Ved Parkash are bound by the acts and conduct of Ved Parkash and so are estopped from filing the present suit. Even if the execution of sale deed is proved, even then, the Defendants have become owners by adverse possession.

On the pleadings of the parties, the following issues were framed:

Whether the Plaintiff has purchased the suit land from Raj Kumar etc, as alleged? OPP

If issue No. l is proved, whether Raj Kumar etc. were not competent to sell the suit land? OPD

Whether the Plaintiff is the bona fide purchaser for value and without notice? OPP

Whether the suit is not within limitation? OPD

Whether the Plaintiff and his predecessor-in-interest are estopped by their act and conduct to file the present suit? OPD

Relief.

Under issue No. 1 it was held that the Plaintiff has purchased the suit land vide Sale deeds Ex.P.1 an Ex.P.2. Issue No. 2 was also decided against the Defendants holding that Raj Kumar etc. were competent to sell the suit land. Under issue No. 3 it was held that Plaintiff is a bona fide purchaser for value without notice. Issue No. 4 was deckled against the Defendants holding that the suit is without limitation. Issue No. 5 was also decided against the Defendants. Resultantly, the suit of the Plaintiff was decreed as prayed for. In appeal, the lower Appellate Court remitted the case after framing two issues to the trial Court with the direction that parties be allowed to produce evidence on these issues and thereafter to return the same to that Court. Lower Appellate Court framed the two following issues:

(5-A) Whether the Defendants have been in possession of the suit land by virtue of exchange as alleged? OPD

(5-B) Whether the Defendants have become owners of the suit land by adverse possession as alleged? OPD

The learned trial Court on considering the oral as well as documentary evidence adduced by the parties came to the conclusion that there was only exchange of possession and not of title an that too for the convenience of cultivation between the land of Sadhu Ram at village Prima Chack at Jammu and that of Ved Parkash in village Shikar Machhian Tehsil Batala. Accordingly, the Court held that Defendants are holding possession of the suit land through vendors i.e. Raj Kumar and others. Issue No. 5-A.was accordingly decided. Under Issue No. 5B it was held that it cannot be held that the Defendants are or have been in adverse possession of the suit land hostile to the interest and title of Ved Parkash or his successors. This issue too was decided against the Defendants. parties were accordingly directed to appear before the District Judge.

The learned Lower Appellate Court chose to examine the findings of the trial Court in respect of issues No. 5-A and 5-B in the first instance. Documentary evidence adduced by the parties which is in the nature of copies of jamabahdies for the year 1962-63 to 1971 -78 are crucial to resolve the controversy between the parties i.e. whether the exchange with the erstwhile parties was effected for the purpose of cultivation only or of ownership. In the copy of jamabandi for the year 1962-63 Ex.D.1 as records Sadhu Ram to be in possession of the property and in the relevant column it is mentioned ''Bawajah Tabadla Hasab Irazi Riasat Jammu''. In subsequent entries in the year 1977-78 whereas Sadhu Ram is shown to be in possession of the property; in the relevant column it is recorded as ''Tabadla Hasab Kasht irazi Riasat Jammu''. Thus in the subsequent years there is a change as notice above but since same is not in conformity with the instructions issued by the Financial Commissioner, is to be ignored. Trial Court on the basis of the later entries came to the conclusion that the exchange between the parties intended to be with regard to the cultivation only i.e. parties restrained their ownership of the property. How and in what manner there was change in the subsequent entries of 1967-68, 1972-73 and 1977-78, no explanation is forthcoming. The lower Appellate Court accordingly placed reliance upon first entry in jamabandi for the year 1962-63 and so held that there was exchange between the parties namely between Ved Parkash and Sadhu Ram. Accordingly, findings of the trial Court in respect of issue No. 5-A was reversed holding that the Defendants are in possession of the suit land on the basis of exchange. Consequently, it was held that sale deed Ex.P.1 and Ex.P.2 executed by one Jagdish Rai Attorney did not confer any title upon the Plaintiff. Similarly, under issue No. 5 was held that since the Defendants are shown to be in possession of the suit land as owners at least since 1962-63, Ex.D.1 and have also led oral evidence to prove their possession even prior to 1962-63, Ex.D.1 and have also led oral evidence to prove their possession even prior to 1962-63, whereas none of the vendors has stepped in the witness box; this issue too was decided in favour of the Defendants. The lower Appellate Court consequently decided issues No. 2, 4 and 5 also in favour of the Defendants. Dealing with the findings of the trial Court in respect of issue No. 3 relating to plea of Plaintiff that he is a bona fide purchaser without notice of exchange, the lower Appellate Court held that in view of entries in the revenue record during all these yeas thee is no basis to hold the Plaintiff to be a bona fide purchaser. This issue was also decided against the Plaintiff. Resultantly, the appeal was accepted thereby dismissing the suit of the Plaintiff with costs.

Challenging the judgment and decree of the lower Appellate Court, the leaned counsel for the Appellant had termed it to be wholly illegal and not based on factum. According to the learned Counsel, the learned Additional District Judge has erred in law in basing its findings upon conjectures and surmises. There has also been misreading of documentary evidence thus resulting in the failure of justice. Even the approach of the lower Appellate Court is faulty as sole reliance has been placed upon jamabandi for the year 1962-63 ignoring all the subsequent jamabandi entries which disprove the former entry. In any case, since there was no clear evidence on record that any such land in fact was given in exchange at Jammu, the conclusion arrived at by the lower Appellate Court is unsustainable in law. The controversy between the parties revolves around a narrow compass i.e. whether there has been exchange of ownership between Ved Parkash on one hand and Sadhu Ram on the other hand, and whether this exchange is with regard to the ownership of property or merely for the purposes of cultivation? Concededly there is no written document of exchange between the parties. Ved Parkash and Sadhu Ram were real brothers, sons of Hari Ram. Family had landed property at village Shikar, Tehsil Batala as well as at Jammu. Perhaps on account of near relationship no attempt was made to reduce the exchange in writing and hence the present controversy. Section 118 of the Transfer of Property Act relates to the mode of effecting exchange. This provision of Transfer of Property act is not applicable to the State of Punjab yet the broad principles are even then attracted. As per on record it is for the first time that entry in the copy of jamabandi for the year 1962-63 shows Sadhu Ram to be in possession of the property at village Shikar and in the column of rent it is recorded "Bawajah Tabadla Hasab Iraji Riasat Jammu". Entries in jamabandi carry presumption of truth. No grievance is alleged to have been made by Ved Parkash during his lifetime or by his predecessor-in-interest. In subsequent entries in the year 1967-68, 1972-73 and 1977-78 the entry in column No. 9 has been changed to and reduced as "Tabadla Kasht Hamra Riayasat Jammu". This entry in the later jamabandies has made a qualitative change to the nature of possession of Sadhu Ram; his possession as owner on the basis of exchange has now been turned to be an exchange for the purposes of cultivation only. How and in what manner thee has been a change in subsequent entries in jamabandis has not been explained by either of the parties. Since no plausible explanation is forthcoming, it is safe to place reliance on the first entry of the year 1962-63 vide which Sadhu Ram has been shown to be in possession of the property on the basis of exchange. Since Ved Parkash is dead his predecessor-in-interest could have thrown some light on the exchange and its precise meaning but for the reasons best known to them none of them has come forward to depose in favour of the Plaintiff. Even the sale deeds have been executed through an attorney. Otherwise too, the Defendant has been able to prove his continuous possession upon the suit land since 1962-63. Earlier attempt made by the Plaintiff to seek his eviction under Sections 9 and 14-A of the Punjab Security of Land Tenures Act, 1953 was without success. Since the Plaintiffs successors-in-interest were left with no right, the execution of the sale deed in favour of the Plaintiff does not in any manner affect the rights of the Defendants. Similarly, the plea of the Appellant that he is a bona fide purchaser without notice of exchange is too devoid of substance. The Defendant is shown to be in possession of the suit land on the basis of exchange from the year 1962-63.

Thus findings no merit in the appeal, the same is dismissed. No order as to costs.