Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1152 (PNJ)

Tarsem Kumar v. Panchayat Samiti, Dabwali

2003-08-14

VINEY MITTAL

body2003
JUDGMENT Viney Mittal, J. - The plaintiffs are in appeal. The plaintiffs originally filed a suit for permanent injunction to the effect that they are owners in possession of the suit land measuring 6 kanals 11 marlas as detailed in the plaint. It was claimed that Tarsem Kumar and Om Parkash plaintiffs are real brothers. They purchased 2 kanals 12 marlas of land vide registered sale deed dated March 21, 1972 from Hari Singh. Similarly, another piece of land measuring 2 kanals 10 marlas, comprised in the suit land was purchased by them from Santa Singh vide registered sale deed dated March 15, 1972. The 3rd piece of land measuring 9 marlas was purchased by them from Hari Singh vide registered sale deed dated July 16, 1972 and again the 4th piece of land measuring 17 marlas was purchased by them from Hari Singh through another registered sale deed dated June 16, 1972. In this manner, the plaintiffs claimed that they the owners in possession of the total land measuring 6 kanals 8 marlas. Mutations were duly entered in their names and they were also delivered the possession. After the sanction of the mutation, their names were duly reflected as owners in possession and the aforesaid fact was recorded in the jamabandi (Ex.P7). The plaintiffs claimed that since defendant-Panchayat Samiti was trying to forcibly encroach upon an area which was owned by the plaintiffs and wanted to raise construction of a boundary wall on their land, therefore, the suit was filed. 2. The plaintiffs claimed ad-interim injunction during the pendency of the suit restraining the defendants not to raise the construction. However, the ad-interim injunction was not granted to them and, therefore, they raised the construction of the boundary wall on the said land. 3. The matter was even taken before this court where the defendants undertook to forego the construction made by them in case the suit of the plaintiffs succeeded. On such construction by the defendants, the plaintiffs amended their suit and claimed the possession of the suit land by removal of the boundary wall constructed by the defendants during the pendency of the suit. 4. The defendants contested the suit. It was claimed by them that vide notification issued under section 4 of the Land Acquisition Act on December 6, 1966, land measuring 18 kanals 16 marlas comprised in khasra Nos. 4. The defendants contested the suit. It was claimed by them that vide notification issued under section 4 of the Land Acquisition Act on December 6, 1966, land measuring 18 kanals 16 marlas comprised in khasra Nos. 679/1, 679/2 and 679/3 measuring 18 kanals 16 marlas was intended to be acquired. Consequently a notification under section 6 of the Act was issued on March 24, 1969 and the land was actually acquired. An award dated August 8, 1969 was passed by the learned Land Acquisition Collector whereby the original owners Hari Singh and Santa Singh had received the compensation and, therefore, the defendants were in possession of the land which had been acquired and the plaintiffs had no right to claim the ownership or the possession of the suit land. 5. The learned trial Court on the pleadings of the parties framed the following issues : 1. Whether the plaintiffs are owners of the suit land ? OPP 2. Whether the plaintiffs are entitled to possession from the defendants as alleged ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether this court has no jurisdiction to try this suit ? OPD. 5. Whether the suit is bad for want of notice under section 80 CPC ? OPD. 6. Whether the suit is not maintainable in view of section 18 of the Land Acquisition Act ? OPD. 7. Whether the suit is time barred ? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? OPD 9. Whether the defendants are entitled to special costs ? OPD 10. Relief. 6. On the basis of the evidence led by the parties, the learned trial Court came to the conclusion that the plaintiffs had purchased the suit land vide registered sale deed Exs. D2 to D5 (also reflected in the mutation Ex.P13 to Ex.16). On the basis of the said purchase, the plaintiffs were held to be the owners of the area purchased by them. The learned trial Court further found that the aforesaid area purchased by the plaintiffs had been encroached upon by the defendants. The learned trial Judge himself inspected the spot and got the same measured. The site plan and field book were prepared accordingly. The learned trial Court further found that the aforesaid area purchased by the plaintiffs had been encroached upon by the defendants. The learned trial Judge himself inspected the spot and got the same measured. The site plan and field book were prepared accordingly. On the basis of the said spot inspection and the other evidence led by the parties, the learned trial Court came to the conclusion that the defendants were in possession of the land measuring 6 kanals 8 marlas belonging to the plaintiffs. On that basis, the suit filed by the plaintiffs was decreed. 7. The matter was taken up in appeal by the defendants. The learned first appellate Court reappraised the evidence. On such reappraisal, the learned first appellant Court came to the conclusion that the plaintiffs had failed to prove that at the time of sale both by Hari Singh and Santa Singh, the sellers were left with any alienable interest and as such the sale transactions made by them in favour of the plaintiffs were meaningless documents which did not confer any rights upon the plaintiffs. It was further held by the learned first appellate Court that the plaintiffs had not been able to prove that the land which was stated to be their ownership had been encroached upon by the defendants. On the basis of the aforesaid findings, the learned first appellate Court reversed the judgment of the learned trial Court and accepted the appeal of the defendants. Accordingly the suit filed by the plaintiffs was dismissed. 8. I have heard Shri Arun Jain, Advocate, the learned counsel appearing for the appellants and Shri H.N. Mehtani, Advocate, the learned counsel appearing for the respondents and with their assistance have also gone through the record of the case. 9. After hearing the learned counsel for the parties, I find that the following substantial questions of law arise in the appeal : (a) as to whether the judgment of the learned first appellate court is based upon mis-reading or non-reading of the important evidence and as such the findings recorded by the learned first appellate Court are vitiated ? (b) as to whether the learned first appellate Court has mis-read the pleadings of the parties to return a finding with regard to the rights and interests of the predecessors-in-interest of the present plaintiffs ? (b) as to whether the learned first appellate Court has mis-read the pleadings of the parties to return a finding with regard to the rights and interests of the predecessors-in-interest of the present plaintiffs ? (c) as to whether the findings recorded by the learned first appellate Court can be held to be perverse and as such not sustainable ? 10. Shri Arun Jain, the learned counsel for the appellants has submitted that the learned first appellate Court has completely mis-read the evidence led by the parties and, therefore, the conclusions arrived at by the learned first appellate court were contrary to the record. A pointed grievance has been made against the findings recorded by the learned first appellate Court in para 17 of its judgment whereby the learned first appellate Court has observed that in view of the sale transaction reflected in the mutations Ex. D41 to Ex.D56 produced by the defendants attested in respect of the sale made by Hari Singh etc. of different portion of land comprised in survey No. 56, the aforesaid Hari Singh and Santa Singh did not have any alienable interest in the said survey number at the time of the execution of the sale deed in the year 1972. Shri Jain has submitted that in fact a perusal of the said mutations Ex.D41 to Ex.D56 would clearly show that the said mutations were with regard to the sale transaction which had taken place much after the sale deeds in favour of the present plaintiffs. The sale deeds in favour of the present plaintiffs were admittedly executed by Hari Singh and Santa Singh on March 15, 1972, March 21, 1972, June 16, 1972 and June 17, 1972. According to the learned counsel since the said sale deeds were executed after the sale deeds in favour of the present plaintiffs had been executed, therefore, the same had no effect upon the sale deeds in their favour. 11. I have gone through the documents Ex.D41 to Ex.D56. Except for the mutations Exs.D41, D48, D50, D53 and D54, all the other mutations reflect the sale deeds which had been executed by the aforesaid owners Hari Singh and Santa Singh after the four sale deeds in favour of the plaintiffs. Ex.D1 is a mutation with regard to the sale deed March 26, 1972 when an area of 10 marlas was sold by the original owner. Ex.D1 is a mutation with regard to the sale deed March 26, 1972 when an area of 10 marlas was sold by the original owner. At that point of time, the original owners were shown to be the owners of 29 kanals 3 marlas of land. Similarly the mutation Ex.D48 pertains to 15 marlas of land which was sold on May 6, 1972. Similar is the mutation qua sale deed Ex.D50 pertaining to one kanal of land sold on May 6, 1972. Mutation Ex.D53 reflects the sale of 15 marlas of land on May 16, 1972 whereas Ex.D54 is the mutation with regard to the sale deed dated March 11, 1960 whereby 10 marlas of land was sold. All the other mutations reflect such sale deeds in favour of the plaintiffs. It is apparent that the learned first appellate Court has completely mis-read the aforesaid documents and, therefore, has arrived at such findings which are contrary to the record. 12. As noticed above, Ex.D41 is the mutation with regard to 10 marlas of land which was sold on March 26, 1972. In the aforesaid mutation it is clearly shown that the original owners had 29 kanals 3 marlas of and out of which 10 marlas was sold. Thus it is proved from the record that the original owners Hari Singh and Santa Singh had an alienable interest in the survey No. 579 at the time of the execution of the four sale deeds in favour of the plaintiffs. 13. The matter may be examined from another angle as well. DW7 is Jagan Nath Patwari who was Halqa Patwari at the relevant time. He was produced by the defendants. After perusing the record, aforesaid Jagan Nath had stated that Hari Singh was having 1/8th share in the total land as per jamabandi for the year 1965-66. The witness had further deposed that Hari Singh had three brothers and one uncle and they had all a joint khata. As per Jamabandi for the year 1965-66 all the joint owners had a total holding 828 kanals. Thus, from the statement of aforesaid witness also it is apparent that Hari Singh and Santa Singh did have a subsisting and alienable interest on the date of the sale deeds executed by them in favour o the plaintiffs. As per Jamabandi for the year 1965-66 all the joint owners had a total holding 828 kanals. Thus, from the statement of aforesaid witness also it is apparent that Hari Singh and Santa Singh did have a subsisting and alienable interest on the date of the sale deeds executed by them in favour o the plaintiffs. In fact these details have been noticed by the learned trial court to come to a finding that the sale deeds in favour of the plaintiffs were legal and valid and they had become the owners of the land purchased by them through the sale deeds but because of the fact that the learned first appellate court mis-read the evidence on the record including the documents produced by the defendants, it came to an erroneous conclusion. 14. At this stage, it may be relevant to notice the pleading of the parties. The plaintiffs had in their plaint categorically stated that they had become the owners of the suit land having purchased the same from the original owners Santa Singh and Hari Singh vide the aforesaid four sale deeds and that their ownership was duly reflected in the jamabandi for the year 1974-75. The defendants contested the ownership of the plaintiffs merely by taking a plea that the land which was sold by Hari Singh and Santa Singh had already been acquitted and the aforesaid Hari Singh and Santa Singh had duly received the compensation for the same. It was claimed that if the aforesaid Hari Singh and Santa Singh had sold the land to the plaintiffs which had already been acquired, then the same would not affect the rights of the defendants at all. 15. It is apparent from the respective stand taken by the parties in the pleadings that the defendants had merely taken a stand that the land sold by aforesaid Hari Singh and Santa Singh to the plaintiffs had already been acquired. It was nowhere stated by them that Hari Singh and Santa Singh having sold the land already to various purchasers did not have any alienable interest on the date of the sales in favour of the plaintiffs. It was nowhere stated by them that Hari Singh and Santa Singh having sold the land already to various purchasers did not have any alienable interest on the date of the sales in favour of the plaintiffs. Accordingly, the observations made by the learned first appellate Court that the sellers Hari Singh and Santa Singh did not have any alienable interest having sold a large portion of the land vide various sale deeds reflected in the mutations Ex.D41 to Ex.D56 and other mutations was even beyond the plea taken by the defendant in their written statement. 16. This brings me to the next question involved in the case as to whether the land in question is a part of the land measuring 18 kanals 16 marlas which was acquired by the State Government for the construction of the office of the Panchayat Samiti. 17. The learned trial Judge inspected the spot himself. He got the land measured. The site plan and the field book were got prepared accordingly. On the basis of the aforesaid site plan and field book it was found that the area in possession of the Panchayat Samiti was 20 kanals 19 marlas. Apparently it was more than the acquired area of 18 kanals 16 marlas. The plaintiffs produced Amar Singh, Patwari as PW2. He deposed that the boundary walls had been constructed by the defendant leaving space on all the four sides. The aforesaid patwari Amar Singh had deposed that khasra No. 679/2 was in possession of one Parkash Devi wife of Sham Lal and Bhajan Lal son of Devi Lal. He produced the mutation Ex. D5 whereby the aforesaid khasra number 679/2 was sold to those persons. He also produced the document Ex.P7 to show that khasra No. 679/3 which had been acquired by the State Government was in possession of the aforesaid Parkash Devi and Bhajan Lal. According to the said witness, the defendants were not in possession of the aforesaid Khasra Numbers 679/2 and 679/3. It is not in dispute that the aforesaid two khasra numbers 679/2 and 679/3 were also acquired by the State Government and formed a part of the total acquired land measuring 18 kanals 16 marlas. 18. Another Patwari Om Parkash was produced by the plaintiffs as PW4. It is not in dispute that the aforesaid two khasra numbers 679/2 and 679/3 were also acquired by the State Government and formed a part of the total acquired land measuring 18 kanals 16 marlas. 18. Another Patwari Om Parkash was produced by the plaintiffs as PW4. He also deposed that the defendants had raised the boundary walls and the total area in their possession including the boundary walls was 21 kanals and 1 marla. It was further deposed by the said witness that 5 marlas of land had been left on southern side whereas 1 kanals 2 marlas of land has been left towards the western side. Further, on the basis of the aforesaid evidence, the learned trial court came to the conclusion that the defendants had left 1 kanals 7 marlas of land on the northern side as well. On the basis of the spot inspection and the site plan prepared at that time, the learned trial court came to the conclusion that there was a triangular area left out side the boundary walls on the south-west corner of the boundary walls and the aforesaid portion measured 2 kanals 1 marla. Thus in view of the entire evidence, the learned trial court came to the conclusion that taking into consideration the area left by the defendants outside the boundary walls and taking into consideration the area in their possession, the total area in possession of the defendants was some to 29 kanals 4 marlas meaning thereby that the defendants were in possession of 6 kanals 8 marlas of area in excess of the area acquired for them by the State Government. 19. After having come to the aforesaid conclusion the learned trial court found that the said area was no other area than the area which was the area belonging to the plaintiffs. 20. Both the parties also produced site plans. The plaintiffs relied upon the site plan Ex.P1. They also produced another site plan Ex.P2 which the plaintiffs claimed was a forged and fictitious documents and did not reflect the true position with regard to the acquired land. The defendants relied upon the said plan and produced the same as Ex.D1. 21. Ex.P9/1 is a communication written by the Block Development and Panchayat Officer to the Land Acquisition Officer. The defendants relied upon the said plan and produced the same as Ex.D1. 21. Ex.P9/1 is a communication written by the Block Development and Panchayat Officer to the Land Acquisition Officer. It was stated in the aforesaid communication that the revenue officials had shown their inability to demarcate the land on the basis of the already supplied copy of the blue print and a request was made to the land acquisition authorities to supply the copy of aks-shajra bearing the signatures of their Kanungo and Patwari so that the demarcation could be done. The aforesaid communication it was reported by the office of the Land Acquisition officer that no such aks-shajra or plan was available in their office except the one already supplied. This report was made by the Land Acquisition Officer on September 18, 1976. Ex. P2 (Ex.D1) site plan is shown to be dated May 12, 1969. When a report was submitted by the Land Acquisition Officer on September, 18, 1976 that no such aks-shajra or site plan was available in their record, then it is not understandable as to under what circumstances, the site plan was taken to be duly authenticated and approved showing the position of acquired land. In fact the learned trial court also inspected the original acquisition file and found that original of the said document found in the land acquisition file was undated plan. On that basis, the learned trial court rightly came to the conclusion that the copy produced on the record by the defendants did not show that it was a true copy of the original plan in the file of the land acquisition office. Since the original did not even bear the date and did not even bear the signatures of the Kanungo or Patwari, therefore, it was held that the said document could not be taken to be an authenticated document reflecting the correct position with regard to the demarcation of the acquired land. Accordingly, the learned trial court came to the conclusion that the said site plan Ex.D1 (Ex. P2) was not a genuine site plan. 22. Another site plan Ex. P8 was produced by the plaintiffs. The aforesaid site plan gave khasra numbers and was prepared by PW4 Om Parkash, Patwari with the help of the Kanungo when they had gone to make the demarcation on March 5, 1979. P2) was not a genuine site plan. 22. Another site plan Ex. P8 was produced by the plaintiffs. The aforesaid site plan gave khasra numbers and was prepared by PW4 Om Parkash, Patwari with the help of the Kanungo when they had gone to make the demarcation on March 5, 1979. The said site plan Ex.P8 was duly comparable with the site plan Ex.P1. On that basis the learned trial Court rightly came to the conclusion that site plan Ex.P1 was shown to be a genuine document whereas the site plan Ex.P2 (Ex.D1) was not proved to be a genuine site plan. The learned first appellate Court also examined this aspect of the matter but merely brushed aside all the observations made by the learned trial Court by holding that nothing has been shown that the site plan Ex.P2 was not an authenticated document. It was further observed by the learned first appellate Court that the site plan Ex.P2 had been rejected by the learned trial Court merely on the basis of the conjectures and surmises. The learned first appellate Court while making these observations seems to have clearly lost sight of the fact that detailed reasoning has been given by the learned trial court in rejecting the aforesaid document. The original file of the land acquisition proceedings had been examined. The site plan produced on the judicial record had been duly compared with the "original" available in the aforesaid file. It was found that the aforesaid "original" site plan did not contain any date nor the signatures of any Patwari or Kanungo whereas the documents produced on the judicial file was having a date as well as the signatures. The learned trial Court had taken into consideration the communication by the Block Development and Panchayat Officer Ex.P9/1 to the Land Acquisition Officer seeking the aks-shajra and the site plan wherein it was replied that there was no such document available in the acquisition file. It is not understandable as to how and in what circumstances the detailed reasoning given by the learned trial Court has been brushed aside by the learned first appellate Court. 23. It is not understandable as to how and in what circumstances the detailed reasoning given by the learned trial Court has been brushed aside by the learned first appellate Court. 23. Thus, I have no hesitation in holding that the learned first appellate court has not read the material evidence available on the record, misread the important documents produced by the parties and has returned such conclusions which are not supported by any material on the record. 24. In view of the above discussion, I answer the questions (a) and (b) in favour of the appellants and hold that the judgment of the learned first appellate Court is based upon mis-reading and non-reading of important evidence and, therefore, the findings recorded by the learned first appellate Court are not only contrary to the record but are judicially perversed. 25. With regard to question (c) also, it is also apparent that the findings recorded by the learned trial Court have been set aside by the learned first appellate Court by holding that the same were based upon mere conjectures and surmises. In fact the detailed reasoning given by the learned trial Court had not been reversed or upset by the learned first appellate court and, therefore, the findings recorded by the learned appellate Court are preverse and as such cannot be sustained. Accordingly question (c) is also answered in favour of the appellants. 26. In view of the detailed discussion above, I accept the present appeal. The judgment and decree of the learned first appellate court are set aside and that of the learned trial court are restored and consequently the suit filed by the plaintiffs shall stand decreed with no order as to costs. Appeal allowed.