Sat Pal vs Devi Chand

B. Rai, J.—This appeal has been directed by Sat Pal plaintiff against the judgment and decree, dated March 23, 1979 of the learned Additional District Judge, Karnal, whereby the judgment and decree dated August 19, 1978 passed by the Subordinate Judge First Class, Kurukshetra, were reversed and finding of the learned Subordinate Judge on the question of mortgage was set aside and the matter was left open to be decided in future litigation, if any. The suit for injunction was dismissed on the ground that plaintiff was not in possession of the suit land. The suit for declaration of title was dismissed, leaving the parties to bear their own costs, on the ground that no cause of action for declaration of title had accrued to the plaintiff.

Facts are that Sat Pal plaintiff filed a suit for declaration on the allegations that he is owner in possession of 1/2 share of land measuring 104 Kanals 2 Marlas fully described in Para 1 of the plaint situated at village Bubka, Tehsil Thanesar, District Kurukshetra, as mentioned in the Jamabandi for the year 197172 and that he is in actual possession as owner of land measuring 49 Kanals 16 Marlas as share of the plaintiff on specific Khasra Numbers by mutual oral and private partition with the cosharers, fully described in Para No. 2 of the plaint situated in the same village. It was pleaded by the plaintiff that he neither mortgaged the suit land with Kunta Wanti nor did he execute any mortgage deed in her favour for any consideration. There was not even an oral transaction between the plaintiff and Kunta Wanti. However, she in connivance with revenue authorities secured fictitious entries of mortgage in her favour and got Mutation No. 1240 dated September 8, 1967 sanctioned in her favour which is also fictitious, fraudulent, void and not binding on his rights. He claimed that he is owner in possession of the suit land since the death of his father and continued to be in possession till date. It was further pleaded that on the application of Kunta Wanti, proceedings under Section 145 of the Code of Criminal Procedure, were initiated by the SubDivisional Magistrate, Thanesar, who appointed Naib Tehsildar as Superdar who obtained constructive possession of the land in question. According to Sat Pal plaintiff, order dated December 31, 1975 passed by the SubDivisional Magistrate, Thanesar, is illegal, void ab initio, arbitrary and is liable to be set aside. It was also alleged that Devi Chand husband of Kunta Wanti tried to take forcible possession of the land in question on the basis of revenue entries which have been ordered to be corrected by the Collector, Kurukshetra. It was alleged that defendants refused to concede his claim and to desist from taking forcible possession of the land on the basis of wrong and false entries. Accordingly, he filed a suit for declaration that he is owner in possession of 1/2 share of the land detailed in Para No. 1 of the plaint and for permanent injunction against the defendants.

The defendants contested the suit pleading that the land in question had been mortgaged by the plaintiff with Kunta Wanti through her husband Devi Chand vide Mutation No. 1240, sanctioned on September 8, 1967 and actual possession was delivered to Kunta Wanti and the suit was timebarred. It was further alleged that it was defendant No. 1 who delivered the actual physical possession of the land in question to the Receiver appointed under the orders of the SubDivisional Magistrate, Thanesar, which according to them was quite legal and valid.

The parties went to trial on the following Issues :

(1) Whether the plaintiff is owner in possession of the suit property to the extent of 1/2 share ? OPP

(2) Whether the possession of the suit property is with defendant No. 1 through defendant No. 2 ? OPD

(3) Whether the impugned mortgage entries are fictitious ? If so, the effect thereof ? OPP

(4) Whether the suit is not maintainable in the present form ? OPD

(5) Whether the suit is time barred ? OPD

(6) Relief.

Issues 1, 2 and 3 were taken up together. After considering the oral and documentary evidence led by the parties, the learned trial Subordinate Judge held that plaintiff was owner of the land in question to the extent of 1/2 share therein. As regards the possession, it was held that it was the Receiver who was in possession of the land in question for the last about two years and there was no evidence that there had been any decision of the proceedings under Section 145, Code of Criminal Procedure, or that the possession of the land in question had been restored to either party in execution of any order of the competent authorities. The mortgage entries were held to be fictitious. Resultantly, it was found the alleged mortgage shall be taken to be nonexistent and that the plaintiff was not in possession of the land in dispute. The suit was held to be maintainable. Under Issue No. 5, it was observed that in view of findings on Issues 1 to 3, the entries regarding the mortgage were fictitious and the plaintiff continued to be owner in possession of the land in question; the suit was held to be within time. Consequently, the suit of Sat Pal plaintiff was decreed, declaring the plaintiff as owner in possession of 1/2 share of the land mentioned in Relief clause and as a consequential relief, defendants were restrained from interfering with the possession of the plaintiff over the suit land. The plaintiff was also held to be entitled to the costs of the suit.

Feeling aggrieved, defendants filed an appeal. The appeal was accepted by the learned Additional District Judge, Karnal, as stated in the opening paragraph of the judgment. Hence, this second appeal by Sat Pal plaintiff.

I have heard the learned counsel for the parties, carefully gone through the judgments of the Courts below and scrutinised the record.

During the course of arguments, it was not disputed that Sat Pal plaintiffappellant was owner to the extent of 1/2 share of the suit land. The finding of the learned trial Subordinate Judge on the question of mortgage was set aside and the matter was left open to be decided in future litigation if any. It is common case of the parties that on the application made by Kunta Wanti, proceedings under Section 145 of the Code of Criminal Procedure were initiated by the SubDivisional Magistrate, Thanesar, and vide his order, dated December 31, 1975 Naib Tehsildar was appointed as Superdar (Receiver) of the suit land. It was argued by the learned counsel for the appellant that both the Courts below have found the appellant to be the owner of the suit land and till date the Khasra Girdawari entries are in his favour showing him to be in actual physical possession of the suit land. Therefore according to the learned counsel, the approach of the learned first appellate Court in dismissing the suit of the plaintiffappellant for permanent injunction and to upset the findings recorded by the trial Court granting relief of permanent injunction in favour of the plaintiff was not correct. It was submitted that the learned first appellate Court has committed grave error of law in dismissing the suit for permanent injunction. The contentions raised are devoid of any force.

It cannot be disputed that the plaintiff seeking the relief of permanent injunction against the defendants is required to prove that on the date of institution of the suit, he was in possession of the suit property. In the instant case, suit was instituted on February 4, 1976. Therefore in order to secure the relief of injunction, it was for the plaintiffappellant to show that on February 4, 1976 he was in actual physical possession of the suit property. Concededly, on the application of Kunta Wanti, proceedings under Section 145 of the Code of Criminal Procedure were initiated by the SubDivisional Magistrate, Thanesar, in respect of the suit land. In those proceedings, the suit land was attached vide his order, dated December 31, 1975 and Naib Tehsildar was appointed as Superdar (Receiver). That goes to show that long before the institution of the suit, the possession of the suit land was with the Receiver. On July 26, 1976 during the pendency of the suit it was conceded by the counsel for the parties that Receiver appointed by the SubDivisional Magistrate had auctioned the land till Rabi 1977 and the possession was delivered to the auction purchaser. It was also conceded that all that the Receiver will have to do is to auction the land and deposit the amount in question in the Treasury. It was also agreed between the parties that the rights and liabilities, as existing at that stage, of the Receiver appointed by the SubDivisional Magistrate, the auction purchaser and the parties shall continue to be so till Rabi 1977. The learned Subordinate Judge vide his order dated July 26, 1976, as agreed between the parties, appointed Shri Bhagwat Saroop, Advocate as Receiver. Naib Tehsildar was directed to hand over all the documents to Shri Bhagwat Saroop who shall honour the commitments made by the former till 1977 and shall thereafter auction the land and deposit the amount thereof in the Treasury. It is, therefore, clear that on the appointment of Shri Bhagwat Saroop Aggarwal as Receiver, after the appointment of Naib Tehsildar as such by the SubDivisional Magistrate, he (Shri Aggarwal) came to be in possession of the suit land and had the right to lease out the same by auction. Viewed from any angle, the possession of the suit land remained with the Receiver and it was not restored to him till the date of filing of suit. Therefore, I am of the view that the learned Additional District Judge has rightly come to the conclusion that plaintiff was not found to be in possession of the suit land and, as such, he rightly dismissed the suit for permanent injunction. The firm finding recorded to that effect, is affirmed.

The appeal being without any substance is dismissed. No costs.