Maninder Singh and Another vs Chanan Singh and Others

L.N. Mittal, J.

C. M. No. 9298-C of 2010 :

For reasons mentioned in the application, which is accompanied by affidavit of the counsel, delay of 14 days in re-filing the appeal is condoned. The application stands allowed accordingly.

C. M. No. 9299-C of 2010 :

Allowed as prayed for.

Main Appeal :

Plaintiffs No. 2 and 3 have filed this second appeal.

Suit filed by plaintiffs (appellants and proforma respondent No. 4) against respondents No. 1 to 3 as defendants was decreed and counter�claim of defendant No. 1 was dismissed by the trial court, but the lower appellate court reversed the same and dismissed the suit of the plaintiffs and decreed the counter-claim of defendant No. 1.

Plaintiffs alleged that they are owners in possession of the suit land measuring 03 kanals 07 marlas bearing khasra No. 161//7/2 and report No. 6 and mutation No. 14787 are illegal and null and void. Injunction restraining defendant No. 1 from dispossessing the plaintiffs from the suit land was also sought. Plaintiffs alleged that they along with defendants No. 2 and 3 are owners in possession of the suit land. However, in jamabandi for the year 1993-94, entry was made on the basis of report Roznamcha Patwari No. 6 and mutation No. 14787, thereby mutating ownership of the suit land in favour of defendant No. 1. The said entry is illegal and null and void.

Defendants No. 2 and 3 were proceeded ex-parte.

Defendant No. 1 contested the suit and claimed to be owner in possession of the suit land vide sale deed dated 20.05.1968, having purchased it from Gazzan Singh - legal representative of Smt. Ishro. Plaintiffs purchased some other land vide sale deed dated 12.06.1978. Plaintiffs took forcible possession of the suit land from defendant No. 1 about two years prior to filing of written statement. Mutation No. 14787 regarding change of ownership of the suit land in favour of defendant No. 1 is legal and valid. Plaintiffs have concealed the true facts that vide judgment and decree dated 27.04.1960 suffered by Nazar Singh - father of plaintiff No. 1 and defendants No. 2 and 3 and grandfather of plaintiffs No. 2 and 3, the suit land was declared to be ownership of Gazzan Singh etc. Defendant No. 1 made counter claim that he is owner of the suit land. He sought relief of possession thereof from the plaintiffs.

The plaintiffs controverted the averments of defendant No. 1 and his counter-claim.

Learned Civil Judge (Junior Division), Moga, vide judgment and decree dated 19.02.2008, decreed the plaintiffs'' suit and dismissed the counter-claim of defendant No. 1. However, first appeal preferred by defendant No. 1 has been allowed by learned Additional District Judge, Moga, vide judgment and decree dated 24.09.2009, and thereby, suit filed by the plaintiffs stands dismissed, whereas counter-claim of defendant No. 1 has been decreed. Feeling aggrieved, plaintiffs No. 2 and 3 have filed this second appeal.

I have heard learned counsel for the appellants and perused the case file.

Counsel for the appellants contended that judgment and decree dated 24.07.1960 was never executed and was never reflected in the revenue record for 35 years, and therefore, plaintiffs continued to be owners of the suit land. The contention is completely misconceived and devoid of substance. Mere non-reflection of ownership of Gazzan Singh etc. in the revenue record, as declared by decree dated 24.07.1960, would not have effect of divesting Gazzan Singh etc. of the ownership of the suit land and of vesting the same in the plaintiffs or their predecessor. The said decree was suffered by Nazar Singh - predecessor of plaintiffs and defendants No. 2 and 3 and the same was never challenged either by Nazar Singh or by plaintiffs and defendants No. 2 and 3. Consequently, in view thereof, Gazzan Singh etc. continued to be owners of the suit land and defendant No. 1, having purchased the share of Gazzan Singh, has become co-sharer therein along with other co-sharers, as rightly held by the lower appellate court. Inaction of Patwari or revenue official in reflecting the decree in the revenue record cannot supersede the decree. Patwari or revenue official cannot sit over the decree and cannot undo the decree by their acts or omissions. In view of decree dated 24.07.1960 passed against predecessor of plaintiffs and defendants No. 2 and 3, plaintiffs and defendants No. 2 and 3, who are also bound by the said decree, cannot be said to be owners of the suit land. In view of the aforesaid, there is no infirmity, much less illegality or perversity in the finding of the lower appellate court against the plaintiffs and in favour of defendant No. 1 to the aforesaid effect. The said finding is also not shown to be based on misreading or misappreciation of evidence. On the contrary, the said finding is the only reasonable finding that can be arrived at on appreciation of evidence on record, particularly in view of decree dated 24.07.1960 passed against predecessor of plaintiffs and defendants No. 2 and 3. Consequently, the said finding does not warrant any interference nor any question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine.