Zail Singh and others vs Wasakha Singh and others

G.S. Sandhawalia, J.

Civil Misc. No.15109-C of 2010

Prayer made in this application is for grant of exemption from filing the certified copy of judgments and decrees of the Courts below.

The application is allowed in view of the averments made in the application, which are supported by affidavit.

Civil Misc. No.15105-C of 2010

For the reasons stated in the application, which are supported by affidavit, the delay of 44 days in re-filing the appeal is condoned.

The Civil Misc. Application is allowed.

Regular Second Appeal No.5125 of 2010

The present appeal has been filed by the plaintiffs who are aggrieved against the concurrent findings of the Courts below whereby their suit for joint possession had been dismissed. The plaintiffs filed the suit pleading that they were owners of 9 kanals 18 marlas out of total land 19 kanals 17 marlas as per Jamabandi for the year 1991-92 in village Kala Ghanupur, Tehsil and District Amritsar.

The case of the plaintiffs was that plaintiffs No.1 to 3 were the owners to the extent of 1/3rd share and plaintiff no.4 was the owner of 1/6th share out of the total land measuring 19 kanals 17 marlas and their share comes to 9 kanals 18 marlas. It was alleged that defendant no.1 was the owner to the extent of 1/3rd share but he had sold more than his share out of the suit land and he was only entitled to 1/3rd share out of the joint Khata. As far as share of defendants no.2 to 14, they had no right, title or interest in the suit land and the plaintiffs were the owners to the extent pleaded. Accordingly, it was prayed that the decree be passed in favour of the plaintiffs for joint possession.

The suit was contested by defendant no.1 on various grounds including maintainability, cause of action, non-joinder and mis-joinder of necessary parties as all the co-sharers and transferees had not been made party to the suit. The fact that the plaintiffs were estopped from their act and conduct from filing the suit and the suit was not within time was also pleaded. It was specifically submitted that plaintiffs No.1 to 3 had already sold their shares in the joint Khata to defendant no.7 vide registered sale deed dated 31.7.1968 for consideration and, therefore, they had been left with no right, title or interest in the suit land and the suit had been filed only to harass the defendants. Defendant No.1 pleaded that he had sold the suit land within his share and was still a co-sharer and in joint possession of the suit land. The replication was filed denying the averments of the written statement including the fact that the plaintiffs had sold their shares in the joint khata to defendant no.7 as alleged.

Defendant no.7 also filed his written statement wherein it was alleged that plaintiffs had sold 6 kanals 18 marlas of land vide registered sale deeds dated 1.8.68 and 28.11.68. It was pleaded that plaintiffs No.1 to 3 who are the sons of Sadha Singh had sold 1/3rd share of the total land measuring 19 kanals 18 malras to the deceased defendant no.7 for consideration vide sale deeds dated 31.7.1968/1.8.1968. Similarly plaintiff no.4 also sold her share in the land to deceased defendant no.7 vide sale deed dated 27.11.1968 for consideration and therefore, they had no right, title or interest in the suit property and defendant no.7 being the legal representative was absolute owner in possession of the land which had been purchased. Therefore, there was no question of defendants admitting claim of the plaintiffs and neither they were entitled to possession of the land. It was also claimed in the counter claim that the name of deceased defendant no.7 was missing in the column of ownership as well as cultivation in the Jamabandis for the years 1986-87, 1991-92 and 1996-97 though it had been mentioned in the earlier Jamabandis for the years 1976-77 and 1981-82 and accordingly, the relief was prayed for in the counter claim. In replication to the said written statement, sale deeds were alleged to be without consideration and it was alleged that plaintiffs had never appeared before the Sub Registrar. The existence and validity of the sale deeds was denied and pleaded that these were not binding upon the rights of the plaintiffs being without consideration and at the same time the possession continued with the plaintiffs and their right had matured into ownership being adverse to the rights of the deceased defendant no.7.

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

1) Whether the plaintiffs are entitled to relief of joint possession as prayed for? OPP

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

3) Whether the plaintiffs have no cause of action to file the present suit? OPD

4) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

5) Whether the suit is not property valued for the purposes of Court fee and jurisdiction? OPD

6) Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD

Whether the suit is not within time? OPD

7a)Whether the plaintiffs have no locus standi to file the present suit? OPD

Relief.

The trial Court came to the conclusion that shares of the plaintiffs had already been alienated by them by execution of sale deeds Ex. D1 and Ex. D2 which had been proved by the witnesses DW-2 Sohawa Singh, DW-3 Wasakha Singh and Avinash Chander, Deed Writer and the possession of the land had been delivered to defendant no.7 and the defendants were in possession of the same and cultivating the suit land. Accordingly, it was held that the presumption of truth attached to the revenue record had been rebutted and the entries in the Jamabandis were of no consequence. The claim of the defendant for correction of revenue record for the year 1976-77 and 1981-82 was also not allowed as the same was beyond limitation and accordingly, it was held that plaintiffs were not left with any right, title or interest in the suit property. Accordingly, the suit was dismissed vide judgment and decree dated 20.1.2006 and no relief was granted in the counter claim filed by defendant no.7.

The appeal filed by the plaintiffs also met the same fate on 13.3.2010. Resultantly, the present Regular Second Appeal has been filed.

Counsel for the appellants contended that the appellants were co-sharers as per revenue record and, therefore, they are entitled to the relief of joint possession of 9 kanals 18 marlas and the Lower Appellate Court was wrong in dismissing the application under Order 41 Rule 27 of the Code of Civil Procedure. Reliance has been placed upon a Full Bench judgment of this Court in Ram Chander Vs. Bhim Singh and others 2008 (3) PLR 747 to contend that the revenue entries reflected rights of the parties and co-sharer was entitled to joint possession. Reference has also been made to M/s Orient Craft Infrastructure Ltd. Vs. Smt. Subhadra and others 2011 (1) CCC 323 (P&H). The contention of the counsel for the appellants is without any basis. Admittedly in the present case it has been found that though revenue record was in favour of the plaintiffs but they had sold their shares to defendant no.7 vide registered sale deeds dated 31.7.1968/1.8.1968 and 28.11.1968 and thus, they were left with no share in the suit property. The said sale deeds were brought on record and duly proved and the Courts below have come to the conclusion that the plaintiffs had no share in the suit property in question. It is also pertinent to mention that the sale deeds pertained to year 1968 and present suit was filed on 9.2.1996. Therefore, at this belated stage, the Courts below had rightly declined the relief of joint possession keeping in view the fact that the plaintiffs had themselves transferred their shares. The precedent of the Full Bench judgment in Ram Chander''s case (supra) is not applicable to the facts of the present case as the plaintiffs'' title was in dispute and it is on that account they had themselves approached the Civil Court which has now held that they had been left with no share in the property. The right to get the property partitioned would have only been there if they had not any dispute with the title and only co-sharers in and out of possession of the land would be entitled to apply for partition. In the present case, it has been found that plaintiffs are not co-sharers any more having sold their shares. The Lower Appellate Court has rightly dismissed the application under Order 41 Rule 27 of the CPC whereby the appellants had sought to lead additional evidence that defendant no.1.Wasakha Singh had executed a registered sale deed dated 27.4.1959 in favour of defendant no.7 pertaining to the entire land. The said sale deed which is in favour of defendant no.7 is of no help since it only goes to show that Wasakha Singh had alienated more than his share in the suit property vide sale deed dated 27.4.1959 even though he was entitled only to sell his 1/3rd share. Defendant no.7 had subsequently purchased the balance land from the plaintiffs themselves which was concealed by the plaintiffs and they did not come to the Court with clean hands and the suit was liable to be dismissed on this account itself. In the pleadings themselves the plaintiffs had admitted the said sale deeds but took the plea that they were without any consideration. As mentioned above the sale deeds pertain to the year 1968 and after a period of almost 30 years, the present suit was filed on 9.2.1996 asking for joint possession and taking the plea that the sale deeds were without consideration in the replication. The Lower Appellate Court had rightly upheld the findings of the trial Court. Reliance upon M/s Orient Craft Infrastructure Ltd.''s case( supra) is also without any basis since in the present case it has come on record that defendant no.7 had firstly purchased the share of defendant no.1 and thereafter balance share was purchased from the plaintiffs and she was in possession of whole of 9 kanals 18 marlas of land. The case referred pertains to the purchaser of joint land and this Court had held that such a purchaser is entitled to possession after partition of the property by metes and bounds amicably and through mutual settlement or by a decree of the Court, whereas in the present case the defendant no.7 had purchased the whole share. There is no ground to interfere with the concurrent findings of the Courts below.

Keeping all these factors in mind, no question of law much less substantial question of law arises for consideration by this Court in the present Regular Second Appeal and the same is dismissed.