Inder Singh vs Jiwan Singh

A.S. Nehra, J.—This appeal is directed against the judgment and decree dated 31.8.1992 passed by the District Judge, Faridkot, by which the appeal filed by Jiwan Singh defendantrespondent was allowed and the judgment and decree dated 5.12.1979 passed by the trial Court (decreeing the suit filed by the plaintiffs) was set aside and the suit of the plaintiffs was dismissed.

Briefly stated, the facts of the case are that Inder Singh plaintiffappellant filed a suit for declaration that he was owner in possession of the suit land and also for permanent injunction restraining Jiwan Singhdefendant No. 1, from dispossessing him forcibly. The allegations of the plaintiff are that, before consolidation proceedings in the village, Inder Singh plaintiff and his brother Sunder Singh were joint owners of the land of Khasra Nos. 2523 and 2565; that Sunder Singh sold his share in these two khasra numbers to Jiwan Singh son of Attar Singh, vide saledeed dated 30.9.1950; that Inder Singh appellant and Arjan Singh, predecessorininterest of respondent Nos. 2 to 7, filed a suit for possession by preemption and the same was decreed on 16.11.1951; that the land bearing Khasra No. 2523 was under mortgage with one Boor Singh; that Inder Singh plaintiff got redeemed the said land from Boor Singh and took its possession; that the suit land (Khasra No. 51/15) was allotted in lieu of Khasra No. 252 during the consolidation proceedings; that in the year 1953, Jiwan Singh defendant No. 1 got a saledeed executed in his favour from Sunder Singh regarding Khasra No. 2523; that defendant No. 1 filed an application for redemption of land bearing Khasra No. 51/15 against the sons of Boor Singh as Boor Singh mortgagee had died; that the application filed by Jiwan Singh, defendant No. 1, was dismissed by the Collector, Moga, vide order dated 10.1.1967 as the sons of Boor Singh made statements that Inder Singhplaintiff had paid the mortgage amount to Boor Singh and the land had already been redeemed; Jiwan Singh, defendant No. 1, then filed a suit challenging the validity of the order of the Collector, dated 10.1.1967, in the Court of SubJudge, Moga, but that suit filed by Jiwan Singhdefendant was also dismissed on 15.1.1969; that Jiwan Singh defendant had no right, title or interest in the suit land and the alleged sale by Sunder Singh in his favour was void, ineffective and not binding upon Inder Singh plaintiff, that Inder Singhplaintiff obtained the land by filing a preemption suit and got it redeemed; and that defendant No. 1 wanted to dispossess Inder Singhplaintiff from the suit land and, therefore, he filed the suit for declaration as well as permanent injunction.

Later on, under the orders of the Court, Karnail Singh, Zora Singh and Harnam Kaur, defendants, were transposed as plaintiffs along with Inder Singh plaintiffappellant. Jarnail Singh, Smt. Prito and Smt. Jito, other successorsininterest of Arjan Singh contested the suit as defendants.

Jiwan Singh, defendant No. 1 pleaded that the suit was not maintainable in the present form on the plaintiffs are not in possession of the suit land. He denied all the allegations made in the plaint and alleged in paragraph 9 of the written statement that he was the owner in possession of the suit land. Defendant Nos. 2 to 4 also contested the suit and raised preliminary objections that the suit was not properly valued for purposes of courtfee and jurisdiction; and that the plaintiff was properly not signed and verified.

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

(1) Whether plaintiffs are owners in possession of the suit land ?

(2) What is the effect of previous litigation between the parties ?

(3) Whether the suit has been properly valued for purposes of Courtfee and jurisdiction ?

(4) Whether the suit has been properly verified and signed ? If so, its effect ?

(5) Relief.

Issue Nos. 1 and 2 were decided together and it was held by the trial Court that the plaintiffs were the owners in possession of the suit land. Under issue No. 3, it was held that the suit was properly valued for purposes of Courtfee and jurisdiction. Issue No. 4 was also found in favour of the plaintiffs and the suit of the plaintiffs was decreed by the trial Court.

The learned counsel for the appellant has argued that the appellant and respondent Nos. 2 to 7 are owners in possession of the suit land. The suit land was sold on 30.9.1950 by Sunder Singh, brother of the appellant, in favour of Jiwan Singh son of Attar Singh; that Inder Singhappellant and his brother Arjan Singh filed a suit for preemption, which was decreed on 16.11.1951, vide Exhibit P3; that Inder Singh appellant and his brother Sunder Singh were joint owners of Khasra Nos. 2523 and 2565; and that, therefore, Inder Singh appellant redeemed the suit land from Boor Singh on 25.8.1950, i.e. before the suit land was sold by Sunder Singh in favour of Jiwan Singh son of Attar Singh, because he was entitled to redeem the suit land, being a joint owner with his brother and, since 25.8.1950, Inder Singh appellant and respondent Nos. 2 to 7 are in possession of the suit land as owners.

It has been further argued by Mr. P.K. Palli, Senior Advocate, learned counsel for the appellant, that Jiwan Singh son of Narain Singh, defendant No. 1, filed a petition before the Collector, Moga, for the redemption of the land measuring 8 Kanals, baring Khasra No. 51/15 (the suit land), against the sons of Boor Singh, which was dismissed on 10.1.1967 by the Collector, Moga, vide his order Exhibit P7 which reads as under :

"This is a petition by Jiwan Singh son of Narain Singh son of Dhian Singh, resident of Khosa Pando, Tehsil Moga, for the redemption of land measuring 8 Kanals, bearing Khasra No. 51/15, khewat No. 421, Khatauni No. 727, jamabandi 196061, situate at village Khosa Pando, Tehsil Moga, lying mortgage with Gurmukh Singh, Tara Singh and Arjan Singh, sons of Bur Singh, respondents, for Rs. 160/.

According to the petition, the land originally belonged to one Sunder Singh son of Gulab Singh who sold the same to Jiwan Singh petitioner in the year 1950. The land along with some other land was in the mortgage with the respondents. Jiwan Singh has now put in this petition for the redemption of this land as the respondents did not accept the mortgage money from him.

On receipt of this petition, a notice was issued to the respondents. They appeared and contested the petition on the grounds that the petitioner had no right to get this land redeemed as in preemption suit filed by Inder Singh and Arjan Singh in the year 1951. Inder Singh was put in possession of this land by the SubJudge, Moga. They also stated that the land was got redeemed by Inder Singh son of Gulab Singh, from Boor Singh son of Gainda Singh.

The petitioner has put in copy of the mutation Exhibit A1, copy of jamabandi Exhibit A2, and copy of the mutation Exhibit A3. The respondents have produced receipt Exhibit R1, copy of the decreesheet Exhibit R2, copy of the Patwari Roznamcha Exhibit R3, saledeed Exhibit R4 and copy of the jamabandi Exhibit P6.

I have heard the learned counsel for the parties and have examined the records. The saledeed Exhibit R4 produced by the respondents shows that the land was sold by Sunder Singh to one Jiwan Singh son of Attar Singh of Moga Mehla Singh. The presentpetitioner is Jiwan Singh son of Narain Singh of Khosa Pando. It appears that the petitioner is a different person. Similarly, copy of the decreesheet Exhibit R2 shows that Jiwan Singh son of Attar Singh also ceased to have any connection with this land as Inder Singh and Arjan Singh were put into possession of the land, by the learned SubJudge Ist Class, Moga. It appears that there has been some bungling in the revenue record about this mortgage. The petitioner has not been able to establish that he is entitled to get the land redeemed. The petition is accordingly dismissed. The parties are left to seek their remedy in the civil Court."

The learned counsel for the appellant has further submitted that the sons of Boor Singh contested the petition filed by defendant No. 1 on the ground that he had no right to get the land redeemed as, in the preemption suit filed by Inder Singhappellant and Arjan Singh in the year 1951, the Sub Judge, Moga, had put Inder Singh appellant and Arjan Singh in possession of the suit land. They also stated that the land was got redeemed by Inder Singhappellant from Boor Singh, their father. In support of their case, the sons of Boor Singh produced receipt Exhibit R1, copy of the decreesheet Exhibit R2; copy of the report roznamcha Exhibit R3, saledeed Exhibit R4 and copy of jamabandi Exhibit R6. The Collector held that the saledeed Exhibit R4 produced by the sons of Boor Singh, shows that the land was sold by Sunder Singh to one Jiwan Singh son of Attar Singh and Jiwan Singh son of Narain Singh is a different person. The petition filed by defendant No. 1 was dismissed by the Collector, because Jiwan Singh son of Attar Singh had ceased to be the owner of the land in view of the civil Court''s decree. The Collector held that Inder Singh appellant and Arjan Singh have been put in possession of the suit land. The learned counsel for the appellant has submitted that the order of the Collector (Exhibit P7) was passed at the instance of defendant No. 1 and this order is binding upon Jiwan Singh son of Narain Singh, defendant No. 1, and it amounts to an admission to the effect that Inder Singh appellant and respondent Nos. 2 to 7 are owners in possession of the suit land and the District Judge has erred in law in ignoring this documentary evidence which amounts to an admission by defendant No. 1.

It has been further submitted by the learned counsel for the appellant that defendant No. 1 filed a suit in the Civil Court, challenging the order passed by the Collector on 10.1.1967, which was dismissed on 15.1.1969, vide Exhibit P8. Tara Singh son of Boor Singh appeared as PW2 and he has stated that his father Boor Singh had delivered the possession of the suit land to Inder Singh appellant, because the suit land was redeemed by Inder Singh appellant on 25.8.1950, vide Exhibit P1. Exhibit P1 has been proved by Satpal PW1 who is the scribe of receipt Exhibit P1.

It has been further submitted by the learned counsel for the appellant that once the suit land has been sold by Sunder Singh on 30.9.1950 to Jiwan Singh son of Attar Singh then the question of selling the same land again on 4.5.1953 by Sunder Singh in favour of Jiwan Singh son of Narain Singh, defendant No. 1 does not arise; and that defendant No. 1 has also not produced the saledeed alleged to have been executed by Sunder Singh in his favour on 4.5.1953 and, therefore, defendant No. 1 is not owner in possession of the suit land. The learned counsel for the appellant has further submitted that the appellant and respondent Nos. 2 to 7 have proved their possession over the suit land by documentary and oral evidence. Exhibit P12 is the khasra girdawari for the year 197677 and therein Inder Singhappellant is shown as a owner and Dasaunda Singh is shown as a tenant. Exhibit P15 is the khasra girdawari for the year 197778 and, in this khasra girdawari, Dasaunda Singh has been shown as a tenant. Dasaunda Singh PW3 has stated that he is cultivating the suit land as a tenant under Inder Singhappellant. Bikker Singh DW4, examined by defendant No. 1 as his witness, has admitted that Dasaunda Singh is cultivating the suit land as a tenant and defendant No. 1 is not in possession of the suit land.

The learned counsel for defendant No. 1, Mr. Nasib Singh Gill, Advocate has submitted that the appellant and respondent Nos. 2 to 7 have failed to prove their case that they are owners in possession of the suit land and that defendant No. 1 redeemed the suit land on 24.9.1976, vide receipt Exhibit D1 and since 24.9.1976 defendant No. 1 is in possession of the suit land. It has been further submitted by the learned counsel for defendant No. 1 that the land, in dispute, is 8 Kanals and qua 4 Kanals, respondent Nos. 2 to 7 have admitted the possession of defendant No. 1 before the District Judge and they have filed a compromise to this effect in the Court of the District Judge. It has been further argued by the learned counsel for defendant No. 1 that the possession of defendant No.1 is proved from the jamabandi for the year 197172 (Exhibit P14.)

The learned counsel for the defendant No. 1 has further submitted that Khasra No. 2523 was mortgaged on 28.7.1947, vide Exhibit P13, by Sunder Singh in favour of Boor Singh and, in the mortgage deed, Sunder Singh has stated that Khasra No. 2523 is exclusively owned by him because, in the partition, Khasra No. 2523 fell to his share and, therefore, Inder Singh appellant could not redeem the suit land on 25.8.1950, because Sunder Singh was the exclusive owner of the suit land. The learned counsel for the appellant has submitted that this argument of the learned counsel for defendant No. 1 is against the documentary evidence on the record, because Sunder Singh sold his share on 30.9.1950 in Khasra Nos. 2523 and 2565 to Jiwan Singh son of Attar Singh. Inder Singh appellant and Arjan Singh filed a civil suit qua the land which was sold by Sunder Singh and the same was decreed, vide Exhibit P3 and both these khasra numbers are mentioned in the decreesheet Exhibit P3. In the jamabandi Exhibit P2 for the year 194546, Inder Singh and Sunder Singh, both brothers, have been shown as owners of khasra Nos. 2523 and 2565. Therefore, the suit land was never partitioned. Khasra No. 2523 was not owned exclusively by Sunder Singh. Therefore, Inder Singhappellant was entitled to redeem the suit land. The petition filed by Jiwan Singh, defendant No. 1 for the redemption of the suit land was dismissed by the Collector, vide Exhibit P7, and the suit filed by defendant No. 1 challenging the order (Exhibit P7) of the Collector was also dismissed by the Civil Court, vide Exhibit P8. Therefore, defendant No. 1, who is not owner of the suit land, could not get the land redeemed, vide Exhibit D1, on 24.9.1976.

Sunder Singh, brother of the appellant, sold his share in Khasra No. 2523 and 2565 on 30.9.1950 in favour of Jiwan Singh son of Attar Singh. Inder Singh appellant and his brother filed a suit for preemption qua the suit land, which was decreed on 16.11.1951, vide decree Exhibit P3. Therefore, Inder Singh appellant and respondent Nos. 2 to 7 had become owners of the suit land in view of the decree of the Civil Court (Exhibit P3). Since the suit land had been sold by Sunder Singh in favour of Jiwan Singh son of Attar Singh, therefore, defendant No. 1 could not purchase the suit land on 4.5.1953. In his written statement, defendant No. 1 has not stated that he had not purchased the suit land on 4.5.1953 from Sunder Singh. Defendant No. 1 has not produced the saledeed in his favour and he has relied upon a mutuation. Defendant No. 1 had purchased the suit land from Sunder Singh and, therefore, he had no right to redeem the suit land on 24.9.1976, vide Exhibit D.1. Inder Singhappellant has proved that he and respondent Nos. 2 and 7 are owners in possession of the suit land by producing documentary and oral evidence. The District Judge has erred in law in not taking into consideration the order Exhibit P7, passed by the Collector, by which the petition of defendant No. 1, for the redemption of the suit land, was dismissed on 10.1.1967. The suit filed by defendant No. 1, in which he challenged the order of the Collector (Exhibit P7), was also dismissed, vide Exhibit P8. Tara Singh son of Boor Singh (PW2), whose evidence has also been ignored illegally by the District Judge, has stated that his father Boor Singh had handed over the possession of the suit land to Inder Singhappellant, because Inder Singhappellant had redeemed the suit land on 25.8.1950, has been proved by Satpal PW1 who is the scribe of Exhibit P1. The evidence of Dasaunda Singh PW3 and Bikkar Singh DW 4 is also reliable. Dasaunda Singh Pw3 has stated that he is cultivating the land as a tenant of Inder Singhappellant. The evidence of Dasaunda Singh is supported by documentary evidence of Khasra girdawaris Exhibit P12 and P15. Bikkar Singh DW4 has also admitted that Dasaunda Singh PW2 is a tenant on the suit land and defendant No. 1 is not in possession of the suit land. There is no force in the argument of the learned counsel for defendant No. 1 that respondent Nos. 2 to 7 have compromised in the Court of the District Judge, qua 4 Kanals of land and that these respondents have admitted the possession of defendant No. 1. The compromise alleged to have been filed by respondent Nos. 2 to 7 has not been accepted by the District Judge because the statements of the parties have not been accepted by the District Judge, and the appeal filed by defendant No. 1 was not accepted on the basis of the compromise alleged to have been executed between the parties. Therefore, there is no force in the arguments raised on behalf of defendant No. 1 and the same is rejected.

In view of the abovementioned discussion, the appellant and the predecessorsininterest of Arjan Singh (respondents No. 2 to 7) have proved that they are owners in possession of the suit land. The appeal filed by Inder Singh plaintiffappellant is allowed with costs which are assessed at Rs. 5000/, the judgment and decree dated 31.8.1982 passed by the District Judge, Faridkot, is set aside; and the judgment and decree passed by the trial Court on 5.12.1979, decreeing the suit filed by the plaintiffs, is restored.