Rajinder Singh vs Durga Devi and others

J.V Gupta, J.

This is plaintiff''s second appeal whose suit for possession of the Taur in dispute was decreed by the trial court,but has been dismissed in appeal.

Rajinder Singh, plaintiffappellant originally filed the suit for permanent injunction to restrain the defendants from interfering in his possession over the vacant site alleging himself to be in possession of the same. Later on, amendment of the plaint was allowed by the trial court and the plaintiff was allowed to urge in the alternative for possession of the disputed site. It was alleged that Mst. Durga Devi, defendant was alleging having purchased this piece of land from Gurbakhash Singh and others which was a sham transaction as they had no right to sell the property. The suit was contested on the plea that the suit for injunction, as such, was not maintainable, and the necessary parties i.e. the vendors of defendant have not been impleaded as party to the suit. On merits, it was contended that Mst. Durga Devi was in possession of said property since its purchase on 1.12.1969 (Ex. D.1) from Udham Singh etc through a registered sale deed for Rs. 3,000/Besides that, she has raised construction on the said land. The trial court found that the plaintiff has proved his ownership of the suit property while Mst Durga Devi defendant has failed to establish the same as the title of her vendors on the suit property was not proved on the file. It was further found that the defendants were in possession of the property and therefore, the suit for injunction as such was not maintainable. Ultimately, plaintiff''s suit for possession was decreed. On appeal, the learned District Judge reversed the said finding of the trial court as to the ownership of the plaintiff. He came to the conclusion that the plaintiff Rajinder Singh has failed to establish is ownership on the site in dispute. It was also found that the defendant was in peaceful and actual possession which could only be disturbed by true owners. As a result of these findings, the plaintiff''s suit was dismissed. Dissatisfied with the same, the plaintiff has come up in second appeal in this court.

From the evidence on the record, the plaintiff tried to prove his title over the site in dispute on the basis of a sale deed Ex.P.5 dated 14.4.1890 said to have been executed by one Ganpat Ram who was alleged to be the occupancy tenant over the suit land. According to the plaintiff, Ganpat Ram was entered as occupancy tenant in the Jamabandi for the year 1984 Ex.P.8.These occupancy rights were transferred in favour of Nagina Singh, the grandfather of the plaintiff, Rajinder Singh. Later on, on the death of Nagina Singh, his two sons Balwant Singh and Ram Narain partitioned the joint property belonging to the family and later on, on the death of Balwant Singh, the property was partitioned amongst his seven sons including the plaintiff. By virtue of that partition the site in dispute had fallen to the share of plaintiff. Since by virtue of the Punjab Occupancy tenants (vesting of Proprietary Rights) Act, 1953, the occupancy rights have come to an end and therefore, the plaintiff has become its owner. The finding of the lower appellate court, according to learned counsel for the plaintiff, is wrong and illegal as it has failed to appreciate the documentary evidence on the record. According to the learned counsel, the two Partition deeds Ex. P 10 dated 20.10.1907 and Ex P 9 of the year 1945 were admissible in evidence as the same were only Memorandum of partition. But the lower appellate court did not take into consideration these two documents on the ground that they required registration being partition deeds. It was also contended that the plaintiff has been in continuous possession of the suit land from the year 1890 when it was purchased by Nagina Singh from Ganpat Ram.

After hearing the learned counsel for the parties and going through the relevant record, I am of the considered opinion that there is no merit in this appeal.

In the first instance, the plaintiff never disclosed his case either in the plaint or in the replication that he is the owner by virtue of the sale deed Ex P.5 in favour of Nagina Singh, his grandfather. The lower appellate court has discussed the entire evidence and has given a firm finding that the plaintiff could not be held to be owner of 7 Marlas of land forming part of Khasra No. 2197 as alleged in the plaint. Admittedly Ganpat Ram vendor was the occupancy tenant whereas the ownership vested in Dheri Dal Singh. There is no document produced on the record to prove that after coming into force of the abovementioned Act, the plaintiff was recorded as owner of the suit property. In the absence of any documentary evidence it could not be held that the plaintiff has become its owner by virtue of the said Act. Moreover, right of occupancy could be transferred under section 53 of the Punjab Tenancy Act, 1887 after notice of the intention to transfer is served on the landlord through revenue officer. In other words, before the transfer of occupancy rights is made in favour of any third person, the landlord is to be approached first. In case he does not intend to purchase then the transfer could be effected in favour of third person. It was in that situation that by virtue of section 57 of Punjab Tenancy Act the transferee will have the same rights and be subject to the same liabilities as the tenant to whom before the transfer, the right had belonged and was subject to. There is absolutely no evidence on the record that these provisions were complied with by Ganpat Ram, the occupancy tenant. Under these circumstances, I do not find any infirmity or illegality in the finding of the lower appellate Court to the effect that the plaintiff has failed to prove his ownership over the site in dispute.

Apart from that,it has been further found by the lower appellate court that the plaintiff has failed to prove the identity of the land. In other words, is the suit land the same which is alleged to have been purchased vide sale deed Ex P.5 ? This is a pure finding of fact and could not be interfered with in second appeal.

As regards the possession over the site in dispute, it has been con currently held by both the courts that the defendant is in possession of the site in dispute.According to the plaintiffappellant the defendant Mst. Durga Devi came into possession when she purchased the property vide sale deed Ex. D.1 dated 1.12.1969 whereas the present suit was filed on 8.12.1969. According to the plaintiff prior to that he has been in continuous possession thereof. However, the story put up by the plaintiffappellant has not been accepted by the Courts below. It has been found as a fact that the defendant is settled in peaceful and actual possession of the suit property which could only be disturbed by the true owners. This again being a finding of fact could not be interfered with in second appeal.

As a result of the above discussion, this appeal fails and is dismissed with costs. Civil Miscellaneous which under the circumstances has not been pressed is also dismissed.