In a second appeal regarding a property dispute, the High Court dismissed the appellants' petition. Noting the absence of appellant appearance and lack of highlighted legal points, the Court held that there was no basis to interfere with the lower courts' decree which had favored the respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 3045 of 1986
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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RSA No. 3045 of 1986 Date of decision : 10.1.2014
Sardar Singh and another ........Appellants Vs. Gurcharan Singh and others ....Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Present:None for the appellants Mr. Nitin Sarin Advocate and Ms. Ankita Sambyal, Advocate, for the respondents
Jasbir Singh, J. (Oral)
The respondents filed a suit seeking declaration that the Exchange Deed dated 9.4.1982, entered into between the appellants on one side and defendants No.1 and 2 on the other side, and mutation sanctioned on the basis of said Exchange Deed, be declared null and void. They also sought decree of permanent injunction, claiming that they were in possession of 8 kanals of land, falling in Killa No. 6, Rectangle No. 71, which is in dispute.
It was case of the respondents/plaintiffs that they have purchased that land vide sale deed dated 10.11.1981 against consideration from Udham Singh son of Kesar Singh i.e. brother of the appellants. It was their further case that they are in possession of the said piece of land. Their suit was contested by the appellants.
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RSA No. 3045 of 1986
As per pleadings of the parties, following issues were framed
by the trial Court :-
Thereafter, the parties led evidence.
Taking note of the same, the trial Court came to a conclusion that the respondents are co-owners in land in dispute. In the said land, on the basis of sale deed projected by them, their exclusive possession was declined, stating that Udham Singh was a co-sharer. The respondents have failed to prove partition between the parties, on the basis of which they can claim exclusive ownership/possession of the land in dispute.
Relevant portion of the judgment dated 1.10.1985 reads thus :-
“The learned counsel for the plaintiffs took me through sale deed (Ex.P1) and the entries in the fard jamabandi (Ex.P2). The learned counsel for the plaintiffs after relying upon the entries in fard jamabandi (Ex.P2) submitted that Udham Singh was a co-sharer in the suit land according to the entries in Ex.P2. The learned counsel for the plaintiffs further contended that suit land comprising in khasra No. 6 fell to the
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RSA No. 3045 of 1986
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share of Udham Singh in the family partition and Udham Singh became the exclusive owner in possession of the suit land. Udham Singh was in exclusive possession of the suit land as owner and he was competent to alienate the suit land. The learned counsel for the plaintiffs further contended that Udham Singh executed sale deed (Ex.P1) in favour of the plaintiffs for consideration and delivered the possession of the suit land to the plaintiffs. The learned counsel for the plaintiffs after relying upon the recitals contained in the sale deed (Ex.P1) further submitted that the plaintiffs became the owners in possession of the suit land since execution of the sale deed in their favour by Udham Singh vendor. The learned counsel for the plaintiffs also raised contention that mutation, if any, sanctioned on the basis of exchange deed between the defendants is not binding upon the plaintiffs as sanction of mutation does not create any title. At the end, the learned counsel for the plaintiffs vehemently stressed that the plaintiffs are in possession of the suit land as owners and their suit be decreed. I do not find myself in agreement with the arguments advanced by the learned counsel for the plaintiffs. Plaintiffs have miserably failed to prove that any family partition had taken place among Udham Singh and his brothers. Entries in the fard jamabandi Ex.P2 go to reveal that Udham Singh was a mere co-sharer in Killa No.6 and he was in joint possession of the said killa along with the other cosharers. So it cannot be said that Udham Singh was in exclusive possession of the entire killa measuring 8 kanals. I have also gone through the entries in the khasra girdawaries for the year 1983-84, 1984-85 and the entries in the khasra girdawaries also show that the plaintiffs are in possession of land measuring 4 kanals out of Killa No. 6 measuring 8 kanals. I am further of the view that Udham Singh as a cosharer in the joint khata was not competent to alienate the specific khasra number when he was not in exclusive
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RSA No. 3045 of 1986
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possession of the specific khasra number which he had sold to the plaintiffs. As the plaintiffs have failed to prove the factum of family partition, so I am of the views that the suit land did not fall to the share of Udham Singh as alleged by the plaintiffs. Plaintiffs have purchased land measuring 8 kanals comprising in Khasra No. 6. So, I am of the view that the plaintiffs have purchased the land measuring 8 Kanals from Udham Singh. But I am also further of the view that Udham Singh was not competent to alienate the entire Khasra No. 6, as Udham Singh was not in exclusive possession of land comprising in Khasra No. 6, so he was not in a position to deliver the possession of land comprising in Khasra No. 6. Entries in the revenue record go to reveal that the plaintiffs are in possession of land measuring 4 kanals out of Khasra No. 6. I accordingly, clinch Issue No.1 against the plaintiffs and in favour of the defendants. I decide Issue No. 2 and 3 partly in favour of the plaintiffs and partly against the plaintiffs. I am further of the views that the plaintiffs are not entitled to injunction relating to entire land comprising in Khasra No. 6. Issue No. 4 is partly decided in favour of the plaintiffs and partly against the plaintiffs.”
The appellants were satisfied with the above said decree. However, the respondents, feeling aggrieved, went in appeal, which was allowed vide judgment and decree dated 29.8.1986. Hence, this regular second appeal.
The finding given, regarding ownership of the land, in favour of the respondents, was affirmed by the Appellate Court. It was noted that as per documentary evidence on record, Udham Singh-predecessor in interest of the respondents, was co-sharer in 16 kanals of land, which includes 8 kanals of land sold by him, falling in Khasra No. 71//6. It was
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RSA No. 3045 of 1986
further noted that there is nothing on record to prove that there was proper partition between the co-sharers. However, it was rightly said that a cosharer is competent to sell land in the joint khewat falling to his share. Noting plea, taken by appellant No.2 that his share was separated from the joint khewat, it was rightly said that then Udham Singh was competent to sell 8 kanals of land in favour of the respondents. It was rightly found that purchaser/respondents are in possession of the said land and if there is any dispute qua share in the joint khewat, that can be settled through partition.
By opining, that the respondents/plaintiffs are the owners in possession of the land in dispute, appeal was accepted. Suit was decreed in toto.
None has put in appearance on behalf of the appellants. Reading of the file do not show that any law point is involved to interfere in this case.
Dismissed.
(Jasbir Singh) Judge
10.1.2014 Ashwani
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3 issues framed by the court
Whether the second appeal filed by the respondents has any arguable ground for modification of the lower courts' decree.
Whether the High Court should interfere with the findings of fact regarding exclusive possession and ownership of the plotted land.
Whether sufficient legal issue has been raised to warrant the setting aside of the appellate court's decree in toto.
Sardar Singh and another
Gurcharan Singh and others
Jasbir Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
