Dismissed

Baljit Singh v. Mohinder Singh and Ors.

Punjab & Haryana HC21 Mar 2012RSA/2341/2008

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of ownership and injunction over disputed land, the High Court dismissed the appeal. The Court held that the lower appellate court, as the final court of fact, correctly appreciated evidence showing the suit land was allotted to the plaintiffs by the revenue department, noting discrepancies in the appellants' mortgage and redemption documents.

What did the court decide?

The second appeal is dismissed.

Baljit Singh Vs Mohinder Singh and Ors. — Partition | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No.2341 of 2008(O&M) Date of Decision: 21.3.2012.

Baljit Singh

--Appellant

Versus

Mohinder Singh (dead) through L.Rs & others

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--Respondents

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CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

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Present:Mr. G.P.S. Bal, Advocate for the appellant.

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Mr. R.S. Chauhan, Advocate for the respondents.

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TEJINDER SINGH DHINDSA.J

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Plaintiffs filed a suit for declaration to the effect that they along with defendants no.5 and 6 are the owners in possession of land measuring 8 kanals bearing khasra no.22-R/7 situated in village Purian Khurd, Tehsil Batala and further prayed for the consequential relief restraining defendants no.1 to 4 from interfering in their possession over such suit land. It was pleaded that plaintiff no.1 and his brother Dalip Singh (since deceased) as also their father Labh Singh were the co-sharers to the extent of ½ share with defendants no.1 to 4 prior to consolidation of holdings. During consolidation the said holding was partitioned and the plaintiffs as also deceased Dalip Singh were allotted separate chunks of land. Likewise, defendants no.1 to 4 as also Labh Singh were also allotted separate chunks. Upon the death of Dalip Singh, his estate had devolved on plaintiff no.2 as also his two sons i.e defendants no.5 and 6 and old khasra no.289 had been changed in settlement and the new khasra no. was bearing no.22-R/7 and had been allotted to plaintiff no.1 and Dalip Singh during consolidation

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RSA No.2341 of 2008(O&M) -2-

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proceedings. It was pleaded that on account of a clerical mistake the ownership in the revenue record pertaining to the suit land had been entered in favour of defendants no.1 to 4 and such entries were wrong and vested no right in favour of defendants no.1 to 4, who had tried to take advantage of the same and were threatening to interfere in their possession and accordingly, the suit had been filed.

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The defendants no.1 to 4 contested the suit and stated that it was their father Kesar Singh, who was the co-owner in exclusive possession of land measuring 83 kanals 6 marlas bearing khasra nos.322, 641, 643, 651, 374, 384, 574, 590, 586, 646, 634 and 656 out of which land was mortgaged by Kesar Singh in favour of Bhagat Singh and Amar Singh vide registered mortgage deed dated 3.7.1941. It was further stated that Bhagat Singh and Amar Singh were mortgagees in possession of the suit land even after the consolidation and settlement of holdings, wherein the suit land as also other land was allotted in lieu of the land mortgaged by Kesar Singh in favour of Bhagat Singh and Amar Singh. It is further stated that upon the death of Kesar Singh his estate devolved upon defendants no.1 to 4 including the suit land. Consequently, defendants no.1 to 4 had become the mortgagers and Bhagat Singh and Amar Singh became the mortgagers in possession under the defendants and subsequently, defendants no.1 to 4 had got redeemed the land mortgaged along with the suit land on 27.7.1966 and mutation no.39 was duly sanctioned in such respect. As such defendants no.1 to 4 prayed for dismissal of the suit claiming to be owners in possession of the suit land and stating the entries in the revenue record to be correct and valid.

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RSA No.2341 of 2008(O&M)

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-3-

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Upon the pleadings of the parties, the Trial Court framed the

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following issues:-

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“1. Whether the plaintiffs and the defendants no.5 and 6 are owners in possession of the property in dispute?OPP.

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If issue no.1 is proved, whether the plaintiffs are entitled to the declaration as prayed for?OPP.

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Whether defendants no.1 to 4 have become the owners of the suit land by lapse of time as alleged in para no.4 of the written statement?OPD.

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Relief.”

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The Trial Court vide judgement dated 24.5.1997 dismissed the

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suit filed by the plaintiffs. Aggrieved of the same, a civil appeal was preferred and vide impugned judgement dated 30.5.2008 passed by the Additional District Judge, Gurdaspur the appeal has been accepted, judgement of the Trial Court has been set aside and the suit of the plaintiffs has been ordered to be decreed. Resultantly, the defendants-appellants are in second appeal before this Court.

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I have heard Mr. G.P.S. Bal, Advocate for the appellants and Mr. R.S. Chauhan, Advocate for the respondents at length.

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Mr. Bal, appearing for the appellants has vehemently argued that it is a well settled proposition of law that a person in permissive possession cannot claim adverse possession and that the plaintiffsrespondents had failed to show that they had become owners by way of adverse possession and such aspect has not been considered by the Lower Appellate Court while reversing the findings of the Trial Court. Learned counsel would further contend that the present appellants had been duly recorded and shown as owners of the suit land in the record of rights continuously from the year 1961 till 1988-89 and such fact has not been

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RSA No.2341 of 2008(O&M) -4-

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appreciated by the Lower Appellate Court. Learned counsel would, accordingly, contend that the impugned judgement passed by the Lower Appellate Court suffers from a misreading and mis-appreciation of evidence.

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Per contra, Mr. R.S. Chauhan, learned counsel appearing for the respondents has argued that it was never the plea of the plaintiffsrespondents that they had become owners by way of adverse possession. Learned counsel on the basis of the Lower Court Records that had been requisitioned would vehemently argue that khasra no. 289 was not even reflected in the mortgage deed (Ex.D-1) upon which reliance had been placed by the defendants/present appellants and as such the findings returned by the Lower Appellate Court were based on due appreciation of evidence and do not call for any interference in second appeal by this Court.

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I have heard and considered the rival submissions made by respective counsel for the parties, perused the pleadings on record and have also gone through the records of the courts below with the assistance of learned counsel.

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The mortgage deed in question upon which reliance had been placed upon in defense by the defendants Ex.D-1 mentions entirely different khasra numbers and old khasra no.289 does not even find a mention therein. The entire case set up by the present appellants was that they had mortgaged certain land including the suit land to Bhagat Singh and Amar Singh and subsequently, the same had been redeemed. Neither the mortgage deed nor the document of redemption would reflect the relevant khasra number i.e. Khasra no.289. The Lower Appellate Court has also taken cognizance of the testimony of Patwari Baljeet Singh, who had been duly examined and

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RSA No.2341 of 2008(O&M)

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-5-

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had proved Jamabandi Ex.P-2 as also proved copies of Aks Shajra (Ex.P-4 & P-5). Such witness had categorically deposed that khasra no.22-R/7 (old khasra no.289) falls in the chunk of the plaintiffs. It is upon due appreciation of evidence adduced on record that the Lower Appellate Court which is a final court of fact has recorded a finding that Labh Singh and Dalip Singh had been allotted the suit land. No evidence had been adduced on record by the present appellants to establish that the suit land fell to their share and had been allotted to them in settlement at the time of consolidation proceedings. There is no basis for interference in second appeal by this Court in the findings recorded by the Lower Appellate Court in holding the plaintiffs-respondents to be owners in possession of the suit land and further as regards grant of discretionary relief of injunction restraining the defendants from interfering in the possession of the plaintiffs as regards the suit property.

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The Trial Court has returned a finding that the plaintiffs had failed to prove that they are owners of the suit land by way of adverse possession. The Trial Court had further proceeded to record that the possession of the plaintiffs-respondents was permissive and as such the plea of adverse possession could not have been entertained. Such findings do not flow from the pleadings on record as it had neither been pleaded in the plaint and nor was such a plea raised at the time of leading evidence that the plaintiffs-respondents had become owners of the suit property by way of adverse possession. Such lacunae has been correctly appreciated by the Lower Appellate Court in the impugned judgement.

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RSA No.2341 of 2008(O&M)

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-6-

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For the reasons recorded above, I find the present second appeal must fail as it does not raise any question of law much less a substantial question of law. The appeal, accordingly, is dismissed.

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Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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21.3.2012. lucky

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Whether to be reported? No.

Baljit Singh v. Mohinder Singh and Ors.

Case brief

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Baljit Singh v. Mohinder Singh and Ors.

Case brief

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