Ujagar Singh vs Shivraj Singh

R.L. Anand, J.—This is Defendant''s appeal and has been directed against the judgment and decree dated 30.5.1980 passed by the Court of Additional District Judge, Jullundur, who allowed the appeal of the Plaintiff and set aside the judgment and decree dated 23.7.1976 passed by the Court of Sub Judge Ist Class, Nawanshehar, District Jullundur, and the first appellate Court decreed the suit of the Plaintiffs (L.Rs. of original Plaintiff Harbans Singh) and granted a decree with costs throughout, for possession of the land measuring 12 marlas bearing khewat No. 292, Khatauni No. 468 and Khasra No. 2430 as entered in the Jamabandi for the year 1958-59 situated in the area of Nawanshehar. The Defendants-Appellants were allowed a period of four months to remove their Geri and Toka Machine and Malba of the construction as shown in red colour in the site plain (Exhibit P-2) prepared at the instance of the Plaintiffs-Respondents.

Brief facts of the case are that Harbans Singh deceased filed a suit for possession of the land measuring 12 Marlas bearing Khewat No. 292, Khatuni No. 468. and Khasra No. 2430 as entered in the Jamabandi for the yea 1958-59 situated in the area of Nawanshehar, with a consequential relief to the effect that the decree for mandatory injunction be passed in his favour and against Defendants Nos. 1 to 5 i.e. Ujagar Singh, Mohinder Singh, Harpal Singh, Jagtar Singh and Charan Singh, direction them to remove the Geri and Toka Machine and the construction shown in red colour in the site plan (Exhibit P-2) and restore the plot in its original condition to the Plaintiff.

The case set up by the Plaintiff was that the Central Government was owner of the plot bearing Khasra No. 2430 measuring 12 Marlas and it was purchased by the Plaintiff in auction on 7.7.1958 for a sum of Rs. 1250/-. He was declared purchaser on 8.8.1958 and a sale certificate was issued in his favour on 29.8.1958. On the basis of the sale certificate mutation was also sanctioned. About 2-1/2 years ago, before the institution of the suit and in the absence of the Plaintiff, Defendants Nos. 1 to 4 set up Geri and Toka machine and Defendant No. 5 constructed two rooms on this land. They had no right to do so. Hence, the suit for possession and injunction.

The suit was contested by the Defendants, who denied that the Plaintiff was the owner of the site in dispute. It was averred by them that they had purchased this site from the Rehabilitation Authorities of the Central Government in the year 1965 and were in possession of the same since then. The suit was also contested on various grounds such as that the Defendants had become the owners of the site in dispute and the Plaintiff was estopped by his acts and conduct from filing the suit; that the Civil Court had no jurisdiction to try the suit; that the suit was not within time and the same was not properly valued for the purpose of Court-fee and jurisdiction; that the suit was liable to be stayed till the decision of the revision before the Chief Settlement Commissioner, New Delhi.

On the pleadings of the parties, the trial Court framed the following issues:

Whether this Court has no jurisdiction to try the present suit? OPD

Whether the suit is liable to be stayed till the decision of the revision pending before the Chief Settlement Commissioner, New Delhi? OPD

Whether the plan produced by the Plaintiff is cprrect? OPP

Whether the suit is within time? OPP

Whether the Defendants have become owners of the suit land by adverse possession? OPD

Whether the Plaintiff is estopped by his acts and conduct from filing the present suit?

Whether the Plaintiff is owner of the suit property? OPP

Relief.

It may be mentioned here that during the pendency of the suit itself Harbans Singh Plaintiff died and his legal representatives were brought on the record.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the trial Court dismissed the suit of the L.R''s of Plaintiff Harbans Singh mainly on the ground as contained in para No. 26 of the judgment by holding that in the year 1955 Rehabilitation Authorities conveyed the land which bore Khasra No. 2430 to Ujagar Singh Defendant No. 1 and Charan Singh Defendant No. 5 in the form of House No. 500 and 497. That being so, the Rehabilitation Authorities were not left with any interest in the land of the Khasra number, which could be conveyed to the Plaintiff in the year 1958. In brief, the trial Court relied upon the conveyance deeds Exhibits DVV-3/A and D-5, which were operative from the year 1955, whereas the auction certificate relied upon by the Plaintiff Harbans Singh (Exhibit P-3) related to the year 1958.

Shivraj Singh and Ors. L.R''s of Harbans Singh filed first appeal in the Court of Additional District Judge, Jullundur, who vide the impugned judgment and decree dated 30.5.1980 set aside the judgment and decree of the trial Court and decreed the suit of the L.R''s of the Plaintiff and the discussion of the first appellate Court contained in para No. 7-A of the judgment, which I reproduce in order to appreciate the arguments, which have been raised now before me:

7-A. Admitted by the bearing Khasra No. 2430 having an area of 12 Marlas purchased by the deceased Plaintiff Harbans Singh from the Rehabilitation Department and the House No. 500 (A, B and C) and 497 conveyed to the Defendants Ujagar Singh and Charan Singh though conveyance deed Ex.DW-3/A and D-5 were all evacuee properties. The Local Commissioner Shri Wazir Singh vide his report Ex.D-6 mentioned that the land in dispute bore Khasra No. 2430 and consequently, it was the property of the Plaintiff Harbans Singh. This Khasra No. 2430 bears Khewat No. 292 and Khatauni No. 469 and it was banjar qadeem and had been so mentioned in the Jamabandi Ex.P-1 for the year 1958-59. It was the property of the Central Government. In the remarks column of this Jamabandi in red ink, it is incorporated that vide mutation No. 5254 Khasra No. 2430 measuring 12 marlas was mutated in favour of Harbans Singh son of Phuman Singh vendee from the Central Government. That property had been shown in the site plan ex.P-2, over which there is Geri and Chaff cutting machine and two rooms, all shown in red colour. The Defendants Charan Singh and Ujagar Singh, no doubt produced the valuation forms Ex.D-1 and D-2 in respect of the area and boundaries of their houses No. 500 (A, B and C) and 497 purchased by them from the Rehabilitation Department, but they did not get demarcation of their properties to ascertain the actual area in their possession in accordance with the aforesaid valuation forms. From the Rehabilitation Department and the Local Commissioner Wazir Singh, Office Kanungo, vide his report Ex.D-6 had clearly submitted that the land in dispute was bearing Khasra No. 2430 which has been established to be the exclusive ownership of Harbans Singh Plaintiff, by virtue of the entries in the Jamabandi Ex.P-1 for the year 1958-59. This property was purchased by Harbans Singh for Rs. 1250/-from the Rehabilitation Department in an open auction on 8.8.1958 and he was declared auction purchaser. The entries of ownership rights made in Ex.P3 and sanction of mutation of that property in favour of Harbans Singh Plaintiff, as entered in the Jamabandi Ex.P-1 conclusively establish the ownership of the Plaintiff to the property in dispute. The boundaries of all these three properties, Khasra No. 2430, H. No. 500 (A, B and C) and 497 as mentioned in all the three documents, sale certificate Ex.P-3 conveyance deed Ex.D-5 and DW-5 and DW-3/A when compared together, do not establish that the property in dispute 28-1/2x46-1/2'' as mentioned in the plan appended to the valuation form Ex.D-1, forms part of any of the House No. 500 (A, B and C) and 497 conveyed to the Defendants Ujagar Singh and Charan Singh. In para No. 24 of its judgment, the learned trial Court had also admitted that fact that the boundaries of the properties sold to Defendant No. 1, as given in the conveyance deed Ex.DW-3/A, Ex.D-5 did not show that the particular strip of the property in dispute was conveyed to Ujagar Singh Defendant but the boundaries to be given in the conveyance deed were to be those which represented the large chunk of the property and that chunk was obviously the property situated on the East of the land going towards North and that is why the boundaries of the house sold to Ujagar Singh Defendant No. 1, as given in the conveyance deed Ex.DW-3/A, were that of larger chunk. However, this fact was not cleared from J.S. Sahota (DW-1), who appeared along with the valuation record from the Rehabilitation Department. Simply because that there is a mention of 46-1/2 x 28-1/2'' area in column No 3 of valuation form Ex.D-1, relating to H. No. 500 (A, B and C) conveyed to Ujagar Singh Defendant No. l, it cannot be admitted that this strip of land is the same which was mentioned by the Plaintiff in the plaint, as Khasra No. 2430 an area of 12 Marlas. By virtue of Ex.D-5 and DW-3/A,both the Defendants Ujagar Singh and Charan Singh had purchased the house over an area of 30 Marias (24+6) Marias and naturally, it was different from those properties, transferred to the Defendants in the year 1956 by the Rehabilitation Authorities. From the conveyance deed Ex.P-3, it is clear that he was allotted agricultural plot No. 121 bearing Khasra No. 2430, an area of 12 Marias but the earlier suit filed by him against Gulwant Singh was a different plot No. 122, as also mentioned in the order Ex. AP1 dated 15.1.1971 by the Chief Settlement Commissioner, Punjab, Jullundur. Vide this order revision petition moved by Ujagar Singh Defendant was dismissed and he was found to have actually participated in the sale, about 12 years back when the aforesaid plot of 12 Marias in favour of Harbans Singh was auctioned and his bid was lower than the bid of Harbans Singh who was issued sale certificate P-3 in the year 1958 but at that time Ujagar Singh raised no objection that the property auctioned in favour of Harbans Singh was already conveyed to him by the Rehabilitation Department through conveyance deed Ex.DW-3/A. His participating in the auction along with Harbans Singh shows that Khasra No. 2430, an area of 12 Marias is quite a different property from the properties conveyed to the Defendant on 1.10.1955 vide conveyance deed Ex.DW-3/A.and Ex,D-5. Thus, from the entire evidence brought on the record the trial court was not justified in holding that the Plaintiff has failed to establish ownership of the property in dispute. Its findings on issue No. 8, are not tenable and they are therefore, set aside and it is held that the Plaintiff is the owner of Khasra No. 2430 measuring 12 Marias as entered in the Jamabandi Ex.P-1 for the year 1958-59 situated in the area of Nawanshehar.

During the pendency of this appeal the Defendants-Appellants moved applications under Order 41 Rule 27, Code of Civil Procedure, in order to place on record certified copies of the permanent allotment orders and the recovery schedule on the ground that the said documents are pat of the record, 30 years old and are necessary for the adjudication of the controversy involved in the appeal, Both the applications under Order 41, Rule 27, Code of Civil Procedure, filed by the Appellants, are hereby allowed. But I am of the considered opinion that even by allowing these applications, the Appellants are not going to improve their case, which I will depict in the later portion of this judgment. I also dispose of C.M. No. 249-C of 1990 under Order 22, Rule 9, Code of Civil Procedure. Ujagar Singh Appellant died on 22.12.1988 and his legal representatives are ordered to be brought on the record. Similarly Amrik Singh, party to the suit, has also died on 13.2.1986 and his legal representatives are also permitted to be brought on the record irrespective of the period of limitation.

C.M. No. 2173-C of 1980 is hereby dismissed. This applicant is bound by the rule of lis pendens.

I have heard Shri Viney Mittal, Senior Advocate, with Jahri Arvind Bansal, Advocate, on behalf of the Appellants and Shri I.P.S. Doabia, Advocate, on behalf of the Respondents, and with their assistance have gone through the record of this case.

It is the common case of the parties that the site in dispute is the subject-matter of Khasra No. 2430 measuring 12 Marias. The trial Court dismissed the suit of the Plaintiff mainly on the ground that this very property was earlier purchased by Defendants Nos. 1 and 5 vide two conveyance deeds with effect from 1.10.1955 and for this reason in the year 1958 no valid title could pass to the Plaintiff as this property ceases to be the part of the central pool, and that the parties have placed on reliance on Lila Krishan and Ors. v. Union of India and Ors. 1970 PLR 719, a judgment of this Court, in which it was held that the property sold and certificate issued, ceases to be evacuee property and goes out of the compensation pool and the Rehabilitation authorities ceased to have any jurisdiction. There is no quarrel with this proposition of law, but it has to be seen whether it is the same property which was transferred to Defendants Nos. l and 5 with effect from 1.10.1985 if the identity of the property remains separate and it becomes clear that the site in dispute, in fact, bears Khasra No. 2430 which has been sold to the Plaintiff, then it has to be held that the suit of the Plaintiffs had been rightly decreed by the first appellate Court. Exhibit P-1 is the Jamabandi for the year 1958-59, which shows that the land measuring 12 Marias forming Khasra No. 2430 was the property of the Central Government and as per mutation No. 5254 this entire Khasra No. 2430 was transferred in favour of Harbans Singh deceased, Exhibit P-3 is the sale certificate which has been issued by the Central Government in favour of the Plaintiff, which would show that plot No. 121 (Agricultural) situated in Nawanshehar bearing Khasra No. 2430 measuring 12 Marias was transferred. The boundaries of plot No. 121 and this khasra No. have admittedly not been shown in Exhibit P-3. Exhibit P-2 is the site plan prepared by the Plaintiff and a perusal of the same would show that the house of Harbans. Singh Plaintiff has been shown in the north in front of which there is a two karam wide Rasta and in the south of the house of Harbans Singh is the disputed site. Towards the south of this plot the house of Defendant No. 5 is there and the house of Defendant No. 1 Ujagar Singh has been shown towards the north and towards the east of the house of Harbans Singh. The oral evidence which has been led by the Plaintiff may not be very helpful to him because the material oral evidence which is on the record is that of Wazir Singh, Local Commissioner, appointed by the trial Court, who gave his report Exhibit D-6. Before I deal with that report, I would like to make a brief mention with regard to the conveyance deed issued in favour of the Defendants. Exhibit DW-3/ A is the conveyance deed in favour of Ujagar Singh Defendant No. l issued in the year 1971 with effect from 1.10.1955 with regard to House No. 500 (A, B and C). The boundaries of this house have been mentioned, i.e., on the north portion of H. No. 501 occupied by Ujagar Singh and on the south property belonging to Dalip Singh, on the east H. No. 522 and house of Sant Singh and on the West by Gali. The sale certificate in favour of Charan Singh (Exhibit D-5) is with respect to property No. 497 (B-II-739) and it is bounded on the north by H. No. 524 and on the west by Banga road. Thus the three sale certificates and the conveyance deeds would show that whereas the Plaintiff purchased the property bearing Khasra No. 2430 measuring 12 Marias, but the Defendants purchased the property in the shape of the house.

Learned Counsel for the Appellants submitted that the Plaintiffs-Respondents must stand on their own legs and they cannot reply upon the weakness of the Defendants-Appellants. The Plaintiffs must establish that property No. 2430 was independent or that it was encroached upon by the Defendants. If it is not established and it is held that property bearing Khasra No. 2430 was, in fact, forming part of the properties sold to the Defendants with effect from 1.1.1955, then in that eventuality the Plaintiff has to be non-suited.

There is no quarrel on the proposition of law as propounded by the learned Counsel for the Appellants but the evidence led by the parties itself established that Khasra No. 2430 purchased by the Plaintiff was independent from the properties purchased by Defendants Nos. 1 and 5 and the Local Commissioner Shri Wazir Singh has Categorically deposed that the property which was transferred by the Central Government to the Plaintiff Harbans Singh (deceased) has been encroached and forms pat of the properties purchased by Defendants Nos. 1 and 5. It has come in the statement of Wazir Singh, who is an independent witness, that the land in dispute (as shown in Exhibit D-2) bore Khasra No. 2430 and it was the property of the Plaintiff Harbans Singh deceased. Exhibits D-l and D-2 are the valuation forms in respect of the area and boundaries of house No. 500 (A, B and C) and 497 purchased by them from the Rehabilitation Department, but these Defendants did not get demarcation on their properties in order to ascertain the actual area in their possession in accordance with the aforesaid valuation forms. Had it been so done by the Defendants-Appellants, the things would have become crystal clear as to whether the property now claimed by the Plaintiffs was ever earlier sold to the Defendants with effect from 1.10.1955 or not. The first appellate Court has rightly held that the boundaries of all the three properties i.e. Khasra No. 2430 purchased by the Plaintiff. H. No. 500 (A, B and C) and H. No. 497 when compared together did not establish that the property in dispute measuring 28-1/2 x 46-1/2'' as mentioned in the valuation form (D-1) forms part of any of H. No. 500 (A, B and C) and H. No. 497 conveyed to Defendants Ujagar Singh and Charan Singh, respectively. There is no reason to disbelieve the statement of Shri Wazir Singh,

Realising this problem learned Counsel for the Defendants-Appellants submitted that the Plaintiff is estopped by his own act and conduct to file the suit because the earlier filed the suit against one Gulwant Singh and claimed the property purchased by him against that man. The Plaintiff is not sure about the identity of the property and he unnecessarily wants to lay land on the property of the Defendants purchased by them.

This argument cannot be accepted because earlier the Plaintiff filed a suit against Gulwant Singh and claimed a different plot No. 122 whereas the sale certificate (Exhibit P-3) shows that he purchased plot No. 121 forming part of the Khasra No. 2430 and for that reason the suit was dismissed. This does not mean that the Plaintiff has relinquished his interest in the property purchased by him vide Exhibit P-3. Moreover Ujagar Singh Defendant filed a revision before the Chief Settlement Commissioner, who vide order dated 15.7.1991 dismissed his revision and it was found that he actually participated in the sale held in favour of Harbans Singh deceased and at no point of time he ever objected that the property, which has been auctioned in favour of Harbans Singh, had already been transferred to him vide the conveyance deed (Exhibit DW-3/ A). His participation in the auction along with Harbans Singh shows that Khasra No. 2430 was a different and independent property from the one which was conveyed to Defendants Nos. 1 and 5 vide Exhibit DW-3/A and D-5. The Defendants have not led the best evidence in order to fix the identity of their property nor they have been able to show that the area in their possession corresponds with the valuation form on the basis of which the conveyance deeds were issued in their favour. The trial Court has not rightly appreciated all these aspects of this case and adopted a short method by holding that the property regarding which Harbans Singh was laying the claim was the same property which has already been sold and transferred to Defendants Nos. 1 and 5 with effect from 1.10.1955 and, therefore the Plaintiff, was not entitled to any relief. The area which was sold to the Plaintiff was 12 Marlas while the area which was sold to the Defendants was much more about 30 marlas and it has not been established by them that Khasra No. 2430 formed part of the property sold vide Exhibits DW-3/A and D-5.

Learned Counsel for the Appellants then submitted that the disputed site is in possession of the Defendants for more than 12 years and their possession is hostile to the Plaintiffs. They had clearly raised the construction to the knowledge of the Plaintiffs. Therefore, he submitted that the suit of the Plaintiffs should be dismissed.

The argument is devoid of any merit. The plea of adverse possession is destructive to the Appellants as they themselves claimed to be the owners of the property by virtue of Exhibit DW-3/A and D-5.

Mr. Viney Mittal, learned Counsel for the Appellants, has also relied upon the authorities reported as Smt. Vanajakshaamma and Ors. v. Gopala Krishna AIR 1970 Mys 305; Jage and Jugti v. Amar Singh and Ors. 1979 P.L.J. 24; K. Venkataramiah Vs. A. Seetharama Reddy and Others, and submitted that the additional evidence sought to be produced by the Appellants may be allowed to be placed on record as this evidence is necessary for the adjudication of this case.

I have already held above that the proposed additional evidence, even if taken on record, is not going to advance the case of the Appellants as from the statement of Mr. Wazir Singh coupled with his report (Exhibit D-6) it stands proved that Khasra No. 2430 was independent from the properties subject matter of the conveyance deeds (Exhibit DVV-3/A and D-5). Reliance was also placed on Mst. Ranjit Kaur and Ors. v. Harbel Singh 1963 PLR 123. These authorities will not help me in order to decide the controversy in favour of the Appellants because they have not been able to show that the disputed property was the same purchased by them earlier in time than that of the issuance of the sale certificate (Exhibit P-3) in favour of Plaintiff Harbans Singh (deceased) represented by his L.R''s.

Resultantly, I endorse the reasons adopted by the first appellate Court, who rightly came to the conclusion that the property of the Plaintiff has been illegally encroached by the Defendants. Thus, I see no merit in this appeal and dismiss the same, leaving the parties to bear their own costs.

All the Civil Misc. application stand disposed of.