Dismissed

Sohan Singh v. Gurbachan Singh

Punjab & Haryana HC19 Feb 2014RSA/1613/1986

Case brief

AI extract

What is this about?

This second appeal concerned a suit for possession of ancestral property. The High Court upheld judgments by lower courts that decreed the suit in favor of plaintiffs who acquired ownership via the Punjab Occupancy Tenancy Act, 1952. The appeal by the defendant purchaser was dismissed as it failed to establish substantial question of law.

What did the court decide?

The instant regular second appeal was dismissed with no order as to costs.

Sohan Singh Vs Gurbachan Singh — Partition | Punjab & Haryana HC (2014)

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RSA No. 1613 of 1986 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 1613 of 1986 (O&M) Date of Decision:19.2.2014

Sohan Singh

.....Appellant.

Versus

Gurbachan Singh (dead) through Lrs and others

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.....Respondents

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CORAM: HON'BLE MR JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. M.L.Sarin, Sr. Advocate with Mr. Hemani Sarin, Advocate for the appellants.

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Mr. R.S.Sihota, Sr. Advocate with Mr. Ashok K. Sharma, Advocate for the respondents.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J

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Present appeal, at the instance of unsuccessful defendants,

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is directed against the impugned judgments and decrees based on concurrent findings of facts, recorded by both the learned courts below, whereby suit for possession on the basis of title, was decreed.

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Brief facts of the case are that plaintiff-Gurbachan Singh filed the suit for possession alleging that suit property was the ancestral property of the plaintiff. It was owned and possessed by Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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him till the year 1979, when defendant No.1 illegally occupied the same. Suit of the plaintiff was based on inheritance of occupancy rights. Suit land measuring 15 marlas was shown as ABCD in the site plan. It was the pleaded case of the plaintiff that suit land formed part of khasra No.3/734 measuring 1 kanal 17 marlas, as entered in the jamabandi for the year 1914-15. Towards North of it, there was khasra No. 678 shown in the jamabandi for the year 1914.-15. It was subsequently converted into khasra No. 909 and then to khasra No. 527, as per jamabandi for the year 1977-78. Thereafter, the premises in dispute came in the Abadi land of the village. Taking unde benefit of absence of the plaintiff, defendant No.1 in connivance with defendants No. 2 and 3 encroached upon the suit premises. When defendant No.1 started claiming himself to be owner of the suit property, on the basis of alleged sale deed dated 14.10.1979, allegedly executed by defendants No.2 and 3, plaintiff was left with no other option except to file the present suit.

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Having been put to notice, defendants No.1 and 3 contested the suit and filed their written statement raising preliminary objections that suit was not maintainable in the present form. Defendants were owners in possession of the suit property and the plaintiff was debarred from filing the suit. On merits, it was stated that Rattan Singh through whom the present suit has been filed, was not lawful attorney of the plaintiff. Plaintiff had no right or title in the suit land. Suit land was sold by defendants No.2 and 3 to defendant No.1, by way of registered sale deed dated 24.10.1979. Defendants also took the plea of adverse possession. Denying all other averments, Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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dismissal of the suit was prayed for.

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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1. Whether the plaintiff is entitled to the possession of the suit property?OPP

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2. Whether defendant No.1 is in possession of the suit property as owner on the basis of sale deed dated 24.10.1979 executed for consideration by Phuman Singh and Sohan Singh s/o Gurdit Singh?OPD

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3. Whether the suit is not maintainable in the present form?OPD

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4. Whether the plaintiff is barred by his act and conduct to file the present suit?OPD

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5. Whether the suit is not properly valued for the purpose of court fee?OPD

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6. Relief”

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In order to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has duly proved his case. Consequently, suit was decreed vide impugned judgment and decree dated 18.5.1984. Feeling aggrieved, defendant-Sohan Singh filed his first appeal which also came to be dismissed by the learned Additional District Judge, vide impugned judgment and decree dated 4.4.1986. Hence this appeal.

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Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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Learned senior counsel for the appellant submits that plaintiff-respondent did not take any plea nor led any evidence qua occupancy rights. Plaintiff was claiming ownership and that too without any evidence. Ajit Singh, Kanungo never appeared in the witness box. He further submits that learned lower appellate court illegally dismissed the application under Order 41 Rule 27 CPC for leading additional evidence. Perusal of Ex.P13 shows that only khasra No. 3/734 was shown but min of khasra No. 734 was not shown. Hira would be at the most co-sharer and suit by the plaintiff alone would not be maintainable. In support of his arguments, he relies upon a judgment of the Hon'ble Supreme Court in Haryana Waqf Board Vs. Shanit Sarup and others, (2008) 8 SCC 671 . Finally, he prays for setting aside the impugned judgments, by allowing the present appeal.

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Per contra, learned senior counsel for the respondentplaintiff submits that Hira was admittedly an occupancy tenant. He became owner by operation of law, i.e. Punjab Occupancy Tenancy (Vesting of Proprietary Right) Act 1952 ('Act of 1952' for short), because Section 3 thereof was crystal clear with regard to conferring title on the occupancy tenant. He further submits that plaintiff rightly filed suit on the basis of title. Sale deed suffered by defendants No. 2 and 3 in favour of defendant No.1-appellant will not be binding qua right of the plaintiff. He would next contend that since vendors of defendant No.1 were not having any title after coming into force the Act of 1952, they were not competent to alienate the suit property. Kumar AmitPW2 appeared and duly proved the demarcation report as Ex.PW3/A 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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because Ajit Singh had expired. He concluded by submitting that neither the defendants pleaded any fraud nor they led by evidence in that regard. Since the learned courts below have recorded the concurrent findings of facts, there was no scope for interference at the hands of this Court. Finally, he prays for dismissal of the appeal.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is called for at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are than one, which are being recorded hereinafter.

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A combined reading of both the impugned judgments and decrees passed by the learned courts below, as well as documentary and oral evidence available on record, would show that plaintiffrespondent have duly proved his case by leading sufficient, cogent and convincing evidence. It was a matter of record and not in dispute that Hira Singh was the occupancy tenant. His tenancy was never terminated. In the meantime, Act of 1952 came into force and by operation of law, Hira and others became owners of the suit property. In such a situation, sale deed dated 24.10.1979, suffered by defendants No. 2 and 3 in favour of defendant No.1 would be of no consequence. It is so said, because defendants No. 2 and 3 were not having any right to alienate the suit property. Once they themselves were not having any title, they were not in a position to Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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pass any better title in favour of defendant No.1. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error law, while passing the impugned judgments and decrees and the same deserve to be upheld.

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Before arriving at a judicious conclusion, learned Additional District Judge recorded cogent findings. In this regard, observations made in para 7 and 8 of the impugned judgment, read as under:-

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“ Coming to the merits of the appeal, the learned Sub Judge has dealt with issues 1 and 2 together and I find it convenient to deal with the two issues jointly. As already stated that the case of the plaintiff is based on the assertion that the suit property formed part of khasra No. 3/734 whereas stand of the defendants is that this land was previously owned by defendants 2 and 3 and the present appellant has purchased the same through sale deed dated 24.10.1979. So the first point requiring determination is whether the property in dispute formed a part of khasra No.3/734 and if so, whether this is the ownership of the plaintiff. As far that part, it may be stated here at the costs of repetition that in para 3 of the plaintiff the plaintiff-respondent has specifically asserted that the land in dispute formed part of khasra No.3/734 and this assertion was never controverted by the defendant-appellant in the

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Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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written statement. It will obviously be deemed to have been admitted by the present appellant. Otherwise too, the evidence on record shows that the property in dispute formed part of khasra No. 3/734. In this behalf the document which requires reference is the report Ex.PW3/A which is demarcation report and it was dated 5.11.1981 prepared by Ajit Singh Kanungo. The learned counsel for the appellant tried to assail this document by saying that this report is not duly proved because Ajit Singh, Kanungo, has not been produced in the witness box and there is no evidence on record to show that he was not available to the court. To my mind, this argument is without any force. The plaintiff-respondent examined Santokh Singh Patwari (PW3) who hd accompanied Ajit Singh, Kanungo, at the time of demarcation and this witness clearly identified his signatures on the report and has proved the correctness of the report. So no fault could be found with regard to the report for non-examination of Ajit Singh Patwari. A reference to the report would show that the land in dispute formed part of khasra No.3/734 and was in possession of the present appellant. Santokh Singh Patwari (PW3) was put to thorough cross-examination but the

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Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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present appellant was unable to bring forth anything therein which could in any way show that the land in dispute was not a part of khasra No.3/734. Then again there are other documents such as Ex.P4, P10 and P13, Ex.P13 is the Aks Shajra of village Boparai indicating khasra No.3/734 and showing khasra No.678 on the southern side therein Ex.P4 and P10 are the copies of the other revenue record showing that previously that land bore khasra No. 678 and now it has been converted into 528 as per Misal Haqiat, at P10 khasra No.528 still exists on the spot towards the Northern side of khasra No.3/734 and is owned by Bhagta and others. Then Ex.P14 is the copy of khewat Khatoni of village Boparai for the year 1985 showing killa No.3/734 to be ownership of Nihala whereas Ram Singh alongwith Hira Singh and Wazira are shown to be in possession thereof as occupancy tenants. Occupancy rights came and end by virtue of the Occupancy Tenants (vesting of Proprietaries Right) Act, 1952. That means Hira Singh and others became the owners of the land. The pedigree table Ex.P8 shows the present appellant to be successor in interest of said Hira. This therefore leads to the clear cut inference that it is

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Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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the present appellant who is one of the co-sharers of khasra No.3/734 and its owner thereof. So from the tacit admission of the defendant-appellant and the evidence on record it is proved that the plaintiff-respondent is the owner of khasra No.3/734 and the present suit land formed part thereof.

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Of course the present defendantappellant claimed to have purchased the land from defendants 2 and 3 through the sale deed dated 24.11.1979 but defendants 2 and 3 having no right to alienate the same, the sale by them would confer no right on the present appellant. Now referring to the ground of appeal curiously enough it would show that even in the said ground of appeal, no such plea has been taken that the present appellant was owner of the property by way of adverse possession. So even during the course of arguments, no such plea was raised before me. Consequently there seems to be no scope to interfere with the findings of the learned Sub Judge on these two issues.”

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Demarcation report Ex.PW3/A was duly proved on record by Santokh Singh-Patwari, who appeared as PW3. It was deposed by this witness that he accompanied Ajit Singh, Kanungo, at the time of demarcation and he identified signature of Ajit Singh on the report. Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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Ajit Singh, Kanungo could not be produced because he had died. In such a situation, Santokh Singh-Patwari was rightly examined by the plaintiff as PW3 and he was competent to prove the demarcation report, which was duly proved by him as Ex.PW3/A. There was voluminous and convincing evidence available on record, which clearly proves the case of the plaintiff-respondent. In view of the foregoing discussion, it can be safely concluded that arguments raised by the learned senior counsel for the appellant were misconceived and without any force. The impugned judgment have not been found suffering from any infirmity and the same deserve to be upheld.

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So far as the judgment relied upon by the learned counsel for the appellant is concerned, there is no dispute about the law laid down therein, but the same is of no help to the appellant, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.

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Section 53 of the Act of 1952, has proved as clincher in favour of the plaintiff-respondent and against the appellantdefendant. As noticed hereinabove, Hira, being occupancy tenant at the relevant point of time and fulfilling all the requirement of law Kumar Amitunder the Act of 1952, had become owner of the suit property by 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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operation of law. Defendant-appellant failed to produce any contrary evidence. The abovesaid view taken by this Court also finds support from the judgments of this Court in Partap Kaur Vs. Harchand Singh etc, 1970 PLJ 383; Nasib Singh Vs. State of Haryana,1991 PLJ 387; State of Haryana Vs. Smt. Reshma and others, 1999(2) PLJ 224; Dharam Singh (deceased) Lrs and others Vs. Bhagwan Singh and others; 2005 (2) RCR (civil) 439; Jodh Singh and another Vs. Smt. Shanti Bai, 2009 (1) RCR (civil) 208 and Dhani Ram Vs. State of Haryana and others, 2013 (1) PLR 583.

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During the course of hearing, learned counsel for the appellant failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned trial court as well as learned first appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its appellate jurisdiction under Section 100 CPC. In this view of the matter, it is held that learned courts below arrived at a judicious conclusion and the impugned judgments and decrees deserve to be upheld, for this reasons as well.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this

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Kumar AmitCourt is of the considered view that the present appeal is 2014.05.13 13:08 I attest to the accuracy and integrity of this document

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RSA No. 1613 of 1986 (O&M)

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misconcieved, bereft of merit and without any substance, thus, it must fail. No case for interference has been made.

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