Inder Sain vs Paras Ram

A.S. Nehra, J.—This appeal is directed against the judgment and decree dated 13.5.1988 passed by the District Judge, Sonepat, by which the appeal filed by the defendantrespondent was allowed and the judgment and the decree dated 29.9.1986 passed by the Senior Sub Judge, Sonepat (decreeing the suit filed by the plaintiffsappellants) was set aside and the suit filed by the plaintiffsappellants was dismissed.

Briefly stated, the facts of the case, as alleged in the plaint, are that the agricultural land, in dispute in village Lehrara, was owned by Mange Ram; that this land was sold to Nawab Singh son of Phool Singh of village Chirasmi, vide registered saledeed dated 7.10.1964; that thereafter Nawab Singh sold the land to several persons including the defendantrespondent, vide registered saledeed dated 15.1.1965; that, after that, there was a partition among the purchasers and, as a result thereof, Killa No. 22/22/2, measuring 8 Marlas, came to the share of the defendant respondent; and that there was an error in the revenue record and it has been corrected by the Assistant Collector and the land in question now vests in the plaintiffs. The right and title of Paras Ram defendantrespondent in Killa No. 22/22/2 has been questioned. The area in dispute, is only 8 Marlas. In other words, the dispute is whether Killa No. 22/22/2 measuring 8 Marlas is owned and possessed by the plaintiffsappellants or by Paras Ram defendantrespondent.

Paras Ram defendantrespondent filed written statement wherein it was averred that the defendentrespondent and Harjinder Singh purchased the suit land from Nawab Singh, vide saledeed dated 22.2.1965 for Rs. 7000/ and they have been in possession of the suit land and, prior to that, Nawab Singh, their predecessorininterest, had been in its possession. There was also a plea that the defendantrespondent had become owner by adverse possession as well and the plaintiffsappellants were estopped from claiming themselves as owners of the suit land. It was further averred by the defendantrespondent that the plaintiffs had no locus standi to institute the suit and that it was not properly valued for the purposes of Courtfee and jurisdiction.

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

Whether the plaintiff Nos. 1 to 3 are the owners of the suit land, as alleged ?

Whether the plaintiffs are estopped from claiming themselves as owners of the suit land by their act and conduct, as alleged ?

Whether the defendant has become the owner of the suit land by way of adverse possession of the land described in para No. 5 of the written statement ? If so, to what effect ?

Whether the plaintiffs are entitled to the relief of mandatory injunction, as alleged ?

Whether the plaintiffs have no locus standi to file the suit ?

Whether the suit is not properly valued for the purposes of jurisdiction and Courtfee ?

The trial Court decided issue Nos. 1 and 2 in favour of the plaintiffs appellants and issue No. 3 was decided against the defendantrespondent. Under issue No. 4 it was held that the plaintiffsappellants are entitled to the relief of mandatory injunction. Issue Nos. 5 and 6 were decided against the defendantrespondent and the suit filed by the plaintiffsappellants was decreed by the trial Court.

evidence of the plaintiffsappellants consists of PW1 Ishwar, PW2 Phool Singh Patwari, PW3 Inder Sain (one of the plaintiffsappellants) PW4 Ram Parkash and PW5 Manohar Lal Registration Clerk. The documentary evidence of the plaintiffsappellants consists of Exhibits P1 to P4, photographs of the site and Exhibits P5 and P6 are their negatives, showing the filling of the foundation of the suit land; Exhibit P7, leasedeed dated 24.5.1982 by which plaintiff Nos. 1 to 3 leased out the suit land in favour of Ram Parkash plaintiff; Exhibit P8, saledeed dated 12.3.1968 vide which plaintiff Nos. 1 to 3 had purchased the suit land along with other land from Mange Ram for a saleconsideration of Rs. 24000/; Exhibit P9, saledeed dated 7.10.1964 whereby Mange Ram sold the land to Nawab Singh; Exhibit P10, copy of the jamabandi for the year 197778; Exhibit P11, copy of the mutation; and Exhibit P12, certified copy of the order dated 13.9.1984 passed by the Assistant Collector 2nd Grade, Sonepat.

The evidence of the defendantrespondent consists of DW1 Paras Ram, DW2 Bhim Singh and DW3 Chander Singh. The documentary evidence of the defendantrespondent consists of Exhibit D1, attested copy of the amended plaint dated 15.12.1969 in Civil Suit No. 1548 of 1969 titled Dharam Singh etc. v. Kesho Lal etc; Exhibit D2, attested copy of Execution Petition No. 70/10 of 1982 in case Inder Sain etc. v. Kesho Lal etc; D3, copy of the jamabandi for the year 197273; Exhibits D4 to D7 copies of the mutations; Exhibit D8, copy of Jamabandi for the year 197778; Exhibit D9, copy of the Khasra girdawari; Exhibit D10, copy of the mutation; Exhibit D11, copy of aks shajra; Exhibit D12 copy of the jamabandi for the year 197778; and Exhibit D13, copy of aks sharja.

The only dispute in this regular second appeal is that the plaintiffsappellants had been considering Killa No. 22/22/1 a piece of land measuring 4 Kanals 13 Marlas as their own and now they want to claim Killa No. 22/22/2 which, in fact, has been in possession of the defendantrespondent. Considerable land, including the land in question, was sold to Inder Sain son of Dharam Singh and others for Rs. 24000/, vide saledeed dated 12.3.1968, a certified copy of which is Exhibit P8. There was earlier litigation and Civil Suit No. 1548 of 1969 was instituted; a certified copy of the plaint is Exhibit D1. The proceedings in Execution Petition No. 70/10 of 1982, certified copy of which is Exhibit D2, show that Inder Sain and others wanted and thereafter obtained possession of Killa No. 22/22/1 measuring 4 Kanals 13 Marlas and not of Killa No. 22/22/2 measuring 8 Marlas which is now in question. This factual position has been further fortified by a certified copy of the jamabandi for the year 197273, which is Exhibit D3, which shows that Killa No. 22/22/2 measuring 8 Marlas has been in possession of Paras Ram son of Neki Ram and not of the plaintiffsappellants. This also remained the position in the year 197778 as depicted in Jamabandi Exhibit D6. Possession of Paras Ram is also proved by copy of the khasra girdawari from 1979 to 1982, vide Exhibit D9. The exparte order without issuing notice to the defendantrespondent, passed by the Assistant Collector 2nd Grade on 13.1.1983, vide Exhibit P11 known as ''Sohat Intkal'', is void and non est, because by that time civil litigation inter se the parties had commenced. The present suit was filed by the plaintiffsappellants on 30.7.1982. Before filing the suit, there was an entry in the Record of Rights. Order dated 13.1.1983 (Exhibit P11) is a non est and void order and is not binding on the defendantrespondent. It has been held by this Court in Lal Singh v. Gurmail Kaur, 1984 PLJ 463 : 1986 R.R.R. 513, that ''Sohat Intkal'' in the jamabandi in respect of earlier mutation, which has been reflected in a number of jamabandis which are prepared after every four years, is not admissible because it goes against the guidelines contained in the Punjab Land Records Manual. Since the order dated 13.1.1983 (Exhibit P11) is a non est order, it can be ignored at any stage. It has been held in Mushan Mu v. L.S.M. Somasundaram Chetty, AIR 1925 Rangoon 111, that the possession of land taken by an adjoining landowner under mistaken knowledge on the part of both the parties as to the true boundary, is adverse to the plaintiff. The lower appellate Court, after minutely going through the evidence led by the parties, had come to the conclusion that the plaintiffsappellants are not the owners of the suit land by their act and conduct.

After hearing the learned counsel for the parties, I find no fault with the finding of fact given by the District Judge while deciding issue Nos. 1 and 2 against the plaintiffsappellants. The plaintiffappellants have miserably failed to prove that they are the owners of the suit land. Therefore, I hold that Paras Ram defendantrespondent is the owner of the suit land and he is in possession of the same.

Paras Ram defendantrespondent has been in possession of the suit land either himself or through his tenants as mentioned in jamabandi Exhibit D3 for the year 197273. Prior to that, his predecessorininterest had been in its possession even in the year 1965, as is evident from the copy of mutation Exhibit D6. The possession has been continuous, as corroborated by certified copies of Khasra girdawari (Exhibit D9), the admission contained in the plaint Exhibit D1, and execution proceedings, certified copy of which is Exhibit D2. PW3 Inder Sain has also referred to Civil Suit of 1969 in his oral evidence recorded in the trial Court on 26.2.1985. In the present case, the possession of defendantrespondent has been continuous and for a period of more than 12 years and it was not a recent one. Buta Ram v. Tarsem Lal, 1987 RRR 276 : 1987(2) Cur.LJ 203, referred by the plaintiffs appellants, is not applicable to the facts of the present case. In the present suit, the plaintiffsappellants amended their plaint thrice. The decision of the learned District Judge on issue No. 3 is correct and I uphold the same. The defendantrespondent has become owner of the suit land by way of adverse possession.

In view of the evidence, reasons and findings, given above, I find no merit in the appeal and the same is dismissed with no order as to costs.