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Judgment
Raj Mohan Singh, J.—1. Plaintiff-society is in regular second appeal against the judgments and decrees passed by the Courts below dismissing the suit for declaration and permanent injunction.
Plaintiff filed a suit alleging that the suit property was purchased by it from defendant No. 2 vide sale deed dated 4.3.1958. Defendant No. 1 sold the suit land in favour of defendant No. 3 vide sale deed No. 1540 dated 29.10.1957. Plaintiff also alleged that the sale deed executed by defendant No. 2 in favour of defendant No. 3 in respect of khasra No. 434 (15 Bigha 6 Biswa) is wrong, illegal and liable to be set aside. Entries in favour of defendant No. 3 in the revenue record were also claimed to be wrong and liable to be corrected in favour of the plaintiff. Plaintiff further alleged that the possession was duly delivered to it at the time of execution of sale deed and plaintiff-society is continuing as owner of the suit land. Defendant No. 3, on the basis of wrong entries in the revenue record, is bent upon to alienate and to create charge over the suit property and has also threatened to oust the plaintiff from the suit land.
Defendants contested the suit on all counts. The nomenclature of the society was denied nor Ram Chander was admitted to be President of the same. Defendants alleged that society never came into existence nor it was renewed under Indian Societies Act. President of the society Ram Chander has no right to file the suit. The resolution of the society for filing the suit was claimed to be forged. Defendants further alleged that defendant No. 1 was owner in possession of the land measuring 73 Bigha 8 Biswa. Factum of execution of sale deed dated 4.3.1958 was denied. Mutation No. 369 in respect of suit land was also denied in favour of the plaintiff-society. Defendants also alleged that the land measuring 15 Bigha 6 Biswa bearing khasra No. 434 was sold to defendant No. 3 by defendant No. 1 vide sale deed No. 1540 dated 29.10.1957, therefore question of alienating the same vide sale deed dated 4.3.1958 in favour of plaintiff-society does not arise. Defendants No. 1 and 2 were not entitled to alienate the property in favour of plaintiff. Defendant No. 3 has been continuing as owner in possession of the land bearing khasra No. 434.
Defendant No. 3 also filed counter claim under Order 8 Rule 6-A of CPC, claiming that he is owner in possession of the land measuring 91 Bigha 3 Biswa on the basis of sale deed No. 1540 dated 29.10.1957. In the aforesaid sale deed, khasra No. 434 measuring 15 Bigha 6 Biswa was also included. Defendant No. 3 also alleged that the plaintiff-society has no concern with the ownership and possession of the said khasra number and mutation No. 335 dated 5.7.1958 in respect of the land measuring 91 Bigha 3 Biswa which had already been sanctioned in favour of defendant No. 3. Khasra No. 434 measuring 15 Bigha 6 Biswa became 76 kanals after consolidation. Plaintiff in collusion with Halqa Patwari illegally got entered its name in the column of cultivation without notice to defendant No. 3, therefore the counter claim for correction of entries in the revenue record has been made.
Counter claim was resisted by the plaintiff on the ground of maintainability and on the ground that the same was not filed by authorised person and also it was not properly valued and the same was time barred and Civil Court has got no jurisdiction to try the counter claim. It was denied that defendant No. 3 was owner of 91 Bigha 3 Biswa on the basis of sale deed No. 1540 dated 29.10.1957. The aforesaid sale deed was claimed to be fabricated document. The alleged mutation No. 335 was also claimed to be wrong and illegal. Sale deed No. 183 dated 4.3.1958 was claimed to be lawful vide which land was sold to the plaintiff.
After filing replication, following issues were framed by the trial Court:-
"1. Whether the plaintiff is also owner and in possession of the land measuring 76 kanal having old khasra No. 434 and new khasra No. 3, 4, 5, 6, 7, 8, 13, 14, 15 and 18/1 of Rect. No. 133 of village Dharuhera, Tehsil and District Rewari? OPP
If issue No. 1 is proved in affirmative whether the plaintiff is entitled for rectification of revenue record in his favour? OPP
Whether the defendant No. 3 is owner in possession over the suit land? OPD
Whether the suit of the plaintiff is not maintainable in the present form? OPD
Relief."
Parties led their respective evidence in support of their case on the aforesaid issues.
Trial Court dismissed the suit vide judgment and decree dated 31.5.2010 after recording findings on issue No. 1 against the plaintiff. Issue No. 2 was also decided on the basis of findings recorded under issue No. 1. Issues No. 3 and 4 were jointly taken up and were decided on the basis of findings recorded under issues No. 1 and 2 and defendant No. 3 was held owner in possession and the suit of the plaintiff was held to be not maintainable in the present form.
A perusal of the judgment and decree of the trial Court reveals that except findings recorded under issues No. 3 and 4 that too on the basis of findings of issues No. 1 and 2, no decision was given on the counter claim, nor any issue of counter claim was framed. Relief of counter claim was not incorporated in the relief clause as well.
Plaintiff filed appeal before the lower Appellate Court against the judgment and decree of the trial Court. The lower Appellate Court, vide judgment and decree dated 6.2.2012, dismissed the appeal with costs and also gave findings on counter claim to the effect that since the trial Court has not given any findings regarding decree of the counter claim of defendant No. 3, therefore in view of findings given by the trial Court on all the issues and particularly on issue No. 3, the counter claim filed by defendant No. 3 was allowed for correction in the revenue record, thereby declaring defendant No. 3 as owner in possession of the land bearing khasra No. 434 measuring 15 Bigha 6 Biswa.
In the present appeal, following question of law have been framed by learned counsel for the appellant:-
"1. Whether on the facts and circumstances of the case appellant Society is the owner in possession of 73 Bigha 8 Biswa of land including land of khasra No. 434 measuring 15 Bigha 6 Biswa purchased way back in the year 1958?
Whether defendant No. 3 can claim her title to the land of khasra No. 434 on the strength of her own sale deed registered on 29.10.1957?
Whether the suit filed by the appellant Society was beyond the period of limitation and in case if it was so, then as to whether the counter claim put forth by defendant No. 3 could be said to be within the prescribed period of limitation?
Whether an adverse inference is liable to be drawn against the defendants, particularly defendant No. 3 for not either stepping in to the witness box nor producing the original sale deed No. 1540 dated 29.10.1957 executed in her favour by defendant No. 1?
Whether on the facts and circumstances of the case the judgments and decrees passed by the courts below are legally sustainable?
Whether the judgments and decrees passed by the Courts below are liable to be set aside being based upon non reading and mis-reading of oral as well as documentary evidence?"
I have heard learned counsel for the parties and have perused the record with their assistance.
There was a common vendor of both the parties. Prior to 1957, land situated in village Dharuhera including the suit land was owned and possessed by Vikram Singh (minor) son of Bhoop Singh. Said Bhoop Singh executed sale deed No. 1540 dated 29.10.1957 (Ex.P-3) in favour of his daughter Nirmala Devi. Same vendor i.e. Bhoop Singh also executed sale deed No. 183 dated 4.3.1958 (Ex.P-4) in respect of 73 Bigha 8 Biswa of land situated in village Dharuhera including khasra No. 434 (15 Bigha 6 Biswa) in favour of plaintiff-society. Mutation No. 335 dated 5.9.1958 (Ex.P-15) was entered and sanctioned in respect of 91 Bigha 3 Biswa in favour of defendant No. 3 including khasra No. 434 (15 Bigha 6 Biswa). This mutation is a padat patwar in which in column No. 13, it was entered on the basis of registered sale deed No. 1050 dated 29.10.1957 for a total consideration of Rs. 4,000/-. Mutation No. 369 dated 28.8.1959 (Ex.P-17) was entered and sanctioned in favour of the plaintiff-appellant in respect of 78 Bigha of land including khasra No. 434 (15 Bigha 6 Biswa) on the basis of sale deed No. 183 dated 4.3.1958. Mutation No. 335 was sanctioned in favour of defendant No. 3 in jalsa-e-aam on 5.9.1958. Padat Sarkar of mutation No. 335 in favour of defendant No. 3 is Ex.P-27.
Padat Sarkar of mutation No. 369 in favour of plaintiff Ex.D-2 is on record. In this Padat Sarkar in column No. 11, khasra No. 434 (15 Bigha 6 Biswa) was shown cut and endorsement was made to the following effect:-
"Sir, khasra No. 434 measuring 15 Bigha 6 Biswa is bhood and sale has already been effected vide sale deed No. 235, therefore........."
While computing total area in column No. 11, deduction to the tune of 15 Bigha 6 Biswa was made from total land of 73 Bigha 8 Biswa, thereby reducing the area (tally) to 58 Bigha 2 Biswa.
The sale deed in favour of plaintiff is bearing No. 183 dated 4.3.1958 (Ex.P-4) in which khasra No. 434 measuring 15 Bigha 6 Biswa is depicted along with other khasra numbers. Sale deed No. 1540 dated 29.10.1957 (Ex.P-3) recited khasra No. 234 (15 Bigha 6 Biswa). Ex.P-1 is the Urdu transcript of the sale deed wherein khasra No. 234 (15 Bigha 6 Biswa) is fully discernable along with other khasra numbers.
Learned senior counsel for the appellant contends that khasra No. 434 (15 Bigha 6 Biswa) was never the subject matter of sale deed No. 1540 dated 29.10.1957. Mutation No. 335 was sanctioned in favour of defendant No. 3 in respect of khasra No. 434 (15 Bigha 6 Biswa) on the basis of some sale deed No. 1050 dated 29.10.1957, which was never produced on record. Apparently, mutation No. 335 (Ex.P-15) was never sanctioned on the basis of sale deed No. 1540 dated 29.10.1957. The padat sarkar of mutation of the defendants Ex.P-27 also depicted the same position inasmuch as that the mutation No. 335 was never sanctioned on the basis of sale deed No. 1540 dated 29.10.1957, rather it was sanctioned on the basis of sale deed No. 1050 dated 29.10.1957. Padat sarkar of the mutation of the plaintiff i.e. No. 369 wrongly recited a non existent fact that khasra No. 434 (15 Bigha 6 Biswa) had already been sold vide sale deed No. 235, therefore, it was deducted from the entitlement of the plaintiff.
The revenue record in terms of jamabandi for the year 1963-64 (Ex.P-18) recorded defendant No. 3 in column of ownership but the plaintiff in column of possession has been shown as gair morusi. The recital is in the following manner:-
"The Gurgaon Scheduled Caste and Malkiat jati gair morusi."
In column No. 9, entry of bila lagan bawaja bai was recorded. The same entry continued in jamabandis for the year 1968-69 (Ex.P-19), 1973-74 (Ex.P-20), 1978-79 (Ex.P-21), 1983-84 (Ex.P- 22), 1988-89 (Ex.P-23), 1998-99(Ex.P-24).
Learned senior counsel for the appellant has submitted that before sanctioning mutation No. 335 on 14.9.1959 in favour of defendant No. 3 as padat sarkar (Ex.P-27), sale deed No. 183 dated 4.3.1958 had already came into existence, therefore the case of the defendants has been illegally appreciated by misreading of evidence on record. Learned counsel has further submitted that the appellant-society was registered in the year 1957 with an objective to rehabilitate Harijan families by purchasing land for them and as such the society with the help of erstwhile State of Punjab had purchased the land of about 260 acres including the suit land, which was part of land measuring 73 Bigha 8 Biswa purchased by the plaintiff-society from respondents No. 1 and 2 vide sale deed No. 183 dated 4.3.1958 (Ex.P-4). This sale was inclusive of khasra No. 434 measuring 15 Bigha 6 Biswa. The Urdu version of sale deed is already on record as Ex.P-2, which is in consonance with the recital in Ex.P-4. In the sale deed No. 1540 dated 29.10.1958, defendant No. 3 purchased 91 Bigha 3 Biswa of land but the recital of sale deed did not show khasra No. 434 measuring 15 Bigha 6 Biswa to be part of area purchased by defendant No. 3, rather the area of khasra No. 234 (15 Bigha 6 Biswa) was shown to have been purchased by defendant No. 3.
While sanctioning mutation on the basis of sale deed Ex.P-4, the revenue authorities did not sanction mutation in favour of plaintiff-appellant for total area of 73 Bigha 8 Biswa and only sanctioned mutation of 58 Bigha 2 Biswa by deleting khasra No. 434 on the ground that alienation of this khasra number had already been made in favour of defendant No. 3 vide mutation No. 335 (Ex.P-15 and Ex.P-27). Perusal of both the documents revealed that neither khasra No. 434 was included in the sale deed No. 1540 dated 29.10.1957 (Ex.P-3) nor the mutation No. 335 was sanctioned in favour of defendant No. 3 on the basis of said sale deed, rather it was sanctioned on the basis of sale deed No. 1050 dated 29.10.1957 of different revenue estate of village Khatawali.
Learned senior counsel for the appellant has further submitted that on positive threat of dis-possession from the land comprised in khasra No. 434 (15 Bigha 6 Biswa) on 10.1.2003, the suit for declaration and injunction came to be filed at the instance of the plaintiff on the ground that plaintiff is in possession of the suit land and mutation has been entered and sanctioned in its favour. Khasra No. 434 cannot be sold to defendant No. 3 and it has been wrongly mutated in her favour. Plaintiff came to know about this change of mutation on 25.11.2002.
PW-1 Bhateri Devi, Head Registration Clerk, has proved both the sale deed numbers i.e. 1540 dated 29.10.1957 and 183 dated 4.3.1958 (Ex.P-1/P-3 and Ex.P-2/P-4 respectively). The translated version Ex.P-3 and Ex.P-4 of aforesaid sale deeds have also been proved by Narender Kumar, while appearing as PW-2. Plaintiff has adduced voluminous record to prove its case and the case is squarely based on documentary evidence. The defendants neither produced any witness in their oral evidence nor themselves stepped into the witness box in documentary evidence. Mutation No. 335 has been tendered as Ex.D-1 and Ex.D-1/T and similarly mutation No. 369 has been tendered as Ex.D-2and Ex.D-2/T. Learned senior counsel further contended that the ownership/title of the land can only be proved by the sale deed and not from the mutation, therefore, mutation did not confer any title in favour of either of the parties. The sale deed of defendant No. 3 did not contain any recital of khasra No. 434, no tatima sale deed was ever prepared nor any rectification was ever done by defendant No. 3 in the recital of sale deed Ex.P-3, therefore the area of khasra No. 434 has been illegally deducted from the mutation of plaintiff Ex.D-2 by the revenue authorities.
Learned senior counsel for the appellant further contended that mutation No. 369 was wrongly sanctioned without presence of the plaintiff-society or its members and the possession over the suit property has not been verified and the facts were verified from Dalip Singh, Lambardar, who is none-else but real brother of defendant No. 2.
Learned senior counsel further submitted that both the Courts below have misread the evidence, therefore, the findings recorded by the Courts below are perverse. As per learned counsel, there cannot be any isolated reading of the pleadings of the plaint particularly of para No. 4 of the plaint. It is not an admission of fact. Plaint as a whole should have been read and it cannot be read in isolation. Admission, if any, has to be put to the plaintiff and the circumstances in which it has been pleaded are required to be brought on record. No such effort has been made by the defendants, therefore, it does not lie to their mouth to contend that there was an admission in respect of purchase of khasra No. 434 by defendant No. 3 in terms of para No. 4 of the plaint. Para No. 4 of the plaint has to be read as a whole as in the plaint itself the subsequent para of para No. 4 has recited that khasra No. 434 measuring 15 Bigha 6 Biswa has been illegally sold in favour of defendant No. 3 for which plaintiff is not bound. The case should have been decided on the basis of title arisen from sale deed and not on the basis of mutation because genesis of the right are the sale deeds. Wrong entry incorporated in the sale deed should have been rectified from the Sub Registrar by defendant No. 3, In the event of not doing the said exercise, the recital of sale deed cannot be misread beyond the recital made therein.
Learned senior counsel for the appellant further highlighted that the entry in column No. 9 in the revenue record has to be read in conjunction with entry in column No. 5. The status of cultivator is shown till filing of the suit in column No. 5 of the jamabandi and column No. 9 carries the recital of bashra malkan bawaja bai i.e. on the basis of sale deed, therefore, column No. 5 has been duly explained. Moreover, column No. 5 gives reading of malkiat jati gair morusi as well. According to learned counsel, column No. 9 is relatable to column No. 5. Possession of the plaintiff-appellant was threatened in the year 2002 and thereafter, suit came to be filed as cause of action accrued to the plaintiff only when its possession was threatened and not from the date of incorporation of wrong entries in the mutation. Learned senior counsel cites Ibrahim @ Dharam Vir vs. Smt. Sharifan @ Shanti 1979 PLJ 469.
Learned senior counsel for the appellant further sought to argue the glaring facts in terms of counter claim. Learned counsel attacked the findings recorded by the trial Court under issue No. 3 only to the extent of recording the following recital:-
"22. Issues No. 3 and 4:- Both these issues inter linked and inter connected, hence taken up together for discussion. Keeping in view the above discussion and finding on issues No. 1 and 2 defendant No. 3 is owner in possession over the suit land and the suit filed by the plaintiff is not maintainable in the present form. Hence, these issues are hereby decided in favour of defendant."
No issue of counter claim was framed. Trial Court did not decide the counter claim on merits, rather recorded findings on issue No. 3. Issue No. 3 should have been framed on the basis of stand taken in the written statement as well as stand taken in the counter claim. Since the relief clause did not contain any relief qua counter claim, therefore, it has to be concluded that counter claim has not been decided by the trial Court. Even if, a decree has been drawn, relief of counter claim should have been incorporated in the relief clause by the trial Court.
Learned senior counsel further contended that the lower Appellate Court has recorded the facts by admitting that the trial Court has not recorded specific finding regarding decree of counter claim of defendant No. 3 but in view of findings given by the trial Court on all issues, particularly issue No. 3, lower Appellate Court came to the conclusion that counter claim is proved and allowed the same, thereby allowing the correction in the revenue record in favour of defendant No. 3. Learned counsel pointed out that the observations of the lower Appellate Court are in view of findings given by the trial Court. Since the trial Court has not given findings under issues No. 3 and 4 in any manner except the one which has been reproduced in the preceding para, therefore once the trial Court has not recorded any finding on the counter claim, lower Appellate Court cannot be held to be justified in presuming that the findings were recorded by the trial Court.
Learned counsel further contended that prior to 1976, there was no concept of counter claim. Thereafter, Rule 6-A has been introduced in Order 8 of CPC and therefore, two appeals were not required to be filed even if counter claim was not decided by the trial Court. Since there was no decision on the counter claim, therefore, only findings recorded by the trial Court were challenged in the appeal. No independent findings have been recorded by the lower Appellate Court on the counter claim, therefore, in the absence of any finding recorded by the trial Court, no such presumption can be made by the lower Appellate Court and the findings need to be reversed as it cannot be an act of consequence. The consequence of presumed decision of counter claim has given undue benefit to defendant No. 3 in seeking correction of revenue entries since 1957 onwards till date. Once defendant No. 3 is not proved to be in possession, the plea of limitation is fully applicable on counter claim as defendant No. 3 cannot take plea of her possession being threatened and thereafter counter claim came to be filed. Trial Court did not order correction of revenue entry in the findings recorded under issues No. 3 and 4. No appeal was filed by the defendants against such decision, therefore, lower Appellate Court has exceeded its jurisdiction on the aforesaid premise. At last learned counsel contended that this case needs to be remanded to the trial Court on this front for decision of counter claim on merits.
As against this, learned senior counsel for respondent No. 3 has vehemently argued that it is an admitted case of both the parties in terms of para 4 of the plaint that defendant No. 3 had purchased khasra No. 434. It was only a clerical error in sale deed on the basis of which khasra number was rightly recorded in the mutation. The padat sarkar Ex.D-2 duly shows the necessary cutting thereby deducting the area so purchased by the plaintiff. That was the lawful exercise undertaken by the revenue authorities. Learned counsel further contended that in the revenue record viz. jamabandis, column No. 4 depicted the name of the defendant. Both the courts have considered the evidence of both the parties in lawful percepts, therefore, impugned judgments and decrees need no interference. Plaintiff cannot take advantage of counter claim. Failure and success of counter claim does not make the plaintiff entitled to the relief made in the suit. Plaintiff having participated in jalsa-e-aam cannot take plea that he can maintain the suit after such a long time, having acquired the knowledge of cutting of khasra No. 434 in padat sarkar. There is nothing wrong in not incorporating the relief of counter claim by the trial Court and such findings are only explanatory in nature.
Learned counsel for respondents No. 1 and 2 also argued in the context of admission made by the plaintiff in para No. 4 of the plaint. The possession of khasra No. 434 was not mentioned in Ex.D-2 i.e. padat sarkar of mutation No. 369 of the plaintiff. The possession of the plaintiff in the revenue record has been shown to be gair morusi. Learned counsel further contended that the plaintiff has claimed adverse possession as alternate relief in the suit. Once the plea of adverse possession has been taken, it precedes ownership of the defendants. Plaintiff is estopped from making prayer qua khasra No. 434 in view of deletion of the same having been made in Ex.D-2. At the last learned counsel for respondents No. 1 and 2 argued that it is not a case of plaintiff that the defendants are having sale deed of khasra No. 234, therefore, the case set up by the plaintiff is beyond pleadings.
I have considered the rival submissions made at the bar.
At this stage, without embarking upon merits of this case, lest it may prejudice anybody''s case at the relevant stage, it can be appreciated that the trial Court has adverted only to the findings under issues No. 1 and 2 and such findings have been made subject matter of decision of issues No. 3 and 4. Issue No. 3 could have been framed on the basis of stand taken in the written statement as well as on the basis of pleadings of the counter claim. No specific issue of counter claim was framed though the onus of issue No. 3 was fastened upon the defendants. Even, if, it is taken to be an issue framed on counter claim, the findings were required to be returned by the trial Court independently. As mentioned in para No. 22 of the judgment of the trial Court, the findings under issue No. 3 have been returned on the basis of findings recorded on issue No. 1 and 2. No decision has been given on the counter claim in the concluding part of the judgment nor the relief of counter claim was incorporated in the relief clause. Even the defendants did not consider themselves to be aggrieved by the decision of the trial Court giving no decision on counter claim. The lower Appellate Court in para No. 27 of the judgment has recorded a fact that in view of findings given by the trial Court on all the issues, particularly on issue No. 3, counter claim in favour of defendant No. 3 can be presumed to have been allowed. Once there is no finding under issue No. 3 by the trial Court, there was no occasion for the lower Appellate Court to give such a finding, which is claimed to be totally misreading of evidence. Since the counter claim has not been adverted to by the trial Court nor the same was incorporated in the relief clause, nor any proper issue was based upon counter claim, therefore, the requirement of Order 8 Rule 6-A of CPC has not been complied with.
At this stage, this Court feels that in the absence of decision on counter claim, any finding given on merits may prejudice the case of either party, therefore, it will be just and expedient to call upon the trial Court to advert to the counter claim and give necessary findings after framing proper issue on the counter claim. Since the plea of counter claim may affect findings under other issues as well, therefore, while remanding the case to the trial Court, the findings on other issues are necessary to be reversed. Ordered accordingly. However, trial Court shall decide all the necessary issues afresh without being influenced by anything recorded here-in-above. Trial Court would make every endeavour to decide the suit expeditiously by giving short adjournments to the parties.
With these observations, this case is remanded to the trial Court for giving decision on merits including counter claim with reference to pleadings and evidence of the parties. Both the parties are directed to appear before the trial Court on 29.2.2016.
Appeal stands disposed of accordingly.