Upon appeal against the dismissal of a regular second appeal challenging a suit where plaintiffs claimed land ownership via 交换 (exchange), the single judge held no substantial question of law arose.
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.1548 of 2015
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1548 of 2015 Date of Decision : 22.05.2018
Surinder Singh and another
......Appellants
Versus
Binder Singh and others
...... Respondents
CORAM: HON’BLE MR. JUSTICE ARUN PALLI
Present: Mr. Gautam Pathania, Advocate for the appellants. ARUN PALLI, J. (Oral)
Suit filed by the appellants/plaintiffs was partly decreed by the trial Court vide judgment and decree dated 24.01.2012. For, even the appeal preferred against the said decree failed and was dismissed by the appellate Court on 7.8.2014, they are in Regular Second Appeal. Parties to the lis, hereinafter, shall be referred to by their original positions in the suit.
The plaintiffs prayed for a declaration that they were owners in possession of a land measuring 61 kanals 19 marlas, situated in the revenue estate of village Kaile Wander, Tehsil Talwandi Sabo, District Bathinda, on the basis of a khangi exchange dated 7.7.1986, executed between the plaintifs and defendants No.1, 2 and Angrej Kaur (now deceased), mother of defendants No.1, 3 and 4 and mother-in-law of defendant No.2. However, in the mutation No.6650 dated 10.03.1987, sanctioned by the revenue authorities in this regard, share of the
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defendants was wrongly recorded, which was liable to be corrected in the name of the plaintiffs.
In brief, the suit filed by the plaintiffs was that originally, as per the jamabandi for the year 1983-84, deceased Angrej Kaur was the owner of 3/10 share, Binder Singh, Gursewak Singh and Jaskaran Singh of 3/5 and Sukhpal Kaur of 1/10 share out of the land measuring 143 kanals 2 marlas. Angrej Kaur was thus, owner of 42 kanals 18 marlas, Binder Singh of 28 kanals 12 marlas, Gursewak Singh of 28 kanals 12 marlas, Jaskaran Singh of 28 kanals 12 marlas and Sukhpal Kaur of 14 kanals 6 marlas. However, the land measuring 17 kanals 12 marlas was in possession of the provincial Government out of the total land. Plaintiffs and defendants No.1 and 2 along with Angrej Kaur agreed to exchange their lands. Keeping in view the quality of the suit land, defendants No.1, 2 and Angrej Kaur gave the land measuring 61 kanals 19 marlas to the plaintiffs. The said land was not fertile and was less valuable being 2 Km. away from the village. Whereas a land measuring 21 kanals 19 marlas owned by the plaintiffs was near abadi and was more fertile than the suit land. The khangi exchange was reduced into writing between the parties on 7.7.1986, on the basis whereof rapat No.325 was entered on 10.02.1987 and mutation No.6650 was sanctioned in the name of the plaintiffs. The plaintiffs were put in possession of the suit property, and likewise possession of the land measuring 21 kanals 19 marlas was delivered to defendants No. 1, 2 and Angrej Kaur. However, owing to an accidental error, the revenue officials sanctioned the mutation only as
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regards 3/5th share in the land measuring 61 Kanals – 19 Marlas, in favour of the plaintiffs. Whereas plaintiffs were owner in possession of land 61 kanals 19 marlas as mentioned in rapat No.325 dated 10.02.1987. Thus, plaintiffs were recorded to be the owners of an area which was deficient and this error continued in the jamabandi for the year 1983-84 and even in the subsequent jamabandis which were liable to be corrected. Further, the mutation of an inheritance of Angrej Kaur sanctioned in favour of defendants was also liable to be corrected and a land measuring 48 kanals mortgaged by Gursewak Singh and Binder Singh in favour of defendant No.5, was also illegal, null and void.
In the written statement filed on behalf of defendants No.1 to 3, it was pleaded that plaintiffs had no right title or interest in the 2/5 share in the land measuring 61 kanals 19 marlas as they were only owners to the extent of 3/5 share which was given in exchange by defendants No.1, 2 and Angrej Kaur qua which mutation No.6650 was rightly sanctioned. It was denied that any khangi exchange regarding 61 kanals 19 marlas was ever reduced into writing. Rapat No.325 was illegal, null and void.
In a separate written statement filed on behalf of defendant No.5, it was maintained that after verifying the revenue record a mortgage deed was executed between Gursewak Singh, Binder Singh and respondent No.5. Further the suit filed by the plaintiffs was barred by limitation.
On a consideration of the matter in issue and the evidence on
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record both the Courts concurrently concluded that plaintiffs to prove their claim examined Gurjit Singh Patwari (PW3), who proved rapat No.325 dated 10.02.1987 (Ex.P1), on the basis whereof the factum as regards khangi exchange, entered into between the parties, was reflected in the revenue record. However, this witness conceded in his crossexamination he did not know the parties who got the rapat (Ex. P1) entered personally. He deposed that parties were identified by Mukhtiar Singh Namberdar but plaintiffs failed to examine Mukhtiar Singh. He conceded that he had not seen the jamabandi when the said rapat was entered. Further, he had entered the rapat on the basis of a writing dated 7.7.1986, which was produced by Binder Singh and Surinder Singh (plaintiffs). However, the basis of the rapat (Ex.P1), i.e. khangi exchange dated 7.7.1986, remained unproved on record. No reason was assigned either for withholding such a vital document. Therefore, adverse inference was required to be drawn against the plaintiffs. Even otherwise, it was proved on record from the jamabandi for the year 1983-84, that Angrej Kaur was the owner to the extent of 3/10 share, Binder Singh, Gursewak Singh and Jaskaran Singh to the extent of 3/5 share, Sukhpal Kaur to the extent of 1/10 share. Thus, mutation No.6650 was sanctioned strictly in terms of the shares Angrej Kaur, Binder Singh and Sukhpal Kaur had in a land measuring 61 kanals 19 marlas. The mutation No.6650 was sanctioned on 11.02.1980, on the basis of writing dated 7.7.1986, entered through rapat No.325. Meaning thereby, the rapat and mutation though based on the same document i.e. khangi exchange but
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reflected at a different picture. That being so, the onus to prove khangi exchange dated 7.7.1986, heavily laid upon the plaintiffs, and in the absence thereof, the plaintiffs could not claim to have been given the land measuring 61 kanals 19 marlas in exchange. Even otherwise, Binder Singh, Sukhpal Kaur and Angrej Kaur were not the owners in exclusive possession of the suit land, for even Gursewak Singh and Jaskaran Singh were the co-sharers therein. Further, mutation No.6650 was sanctioned on 11.02.1980, and the revenue record continued as such for nearly 24 years, whereafter the plaintiffs filed the suit in March, 2010. Further, it was quite improbable that defendants No.1, 2 and Angrej Kaur had given three times more land in exchange to the plaintiffs. No evidence was brought on record by the plaintiffs to show that the suit land was not as valuable as the land given by the plaintiffs in exchange. Although, the plaintiffs had proved on record the copy of warabandi (Ex.PW1/8), entered in their names qua land measuring 82 kanals 19 marlas, but the said document would not show the khasra numbers that were being irrigated so as to connect those with the land measuring 61 kanals 19 marlas. Thus, the plaintiffs had failed to prove that they were given land measuring 61 kanals 19 marlas in exchange, but only 3/5 share therefrom. Resultantly, suit of the plaintiffs was partly decreed and they were declared to be the owners in possession of 3/5 share out of land measuring 61 kanals 19 marlas. Accordingly, defendants No.1 to 4 were restrained form alienating the share of the plaintiffs in the joint khata.
On being pointedly asked, learned counsel for the plaintiffs
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could not refer to anything on the record to show if the conclusion arrived at by both the Courts were either contrary to the record or suffered from any material illegality. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The same being devoid of merit is accordingly, dismissed.
22.05.2018 ( ARUN PALLI ) Manoj Bhutani /Pkapoor JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No
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Surinder Singh
Binder Singh
ARUN PALLI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
