Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 181 (PNJ)

Ram Chand v. Mallu

2005-02-02

V.M.JAIN

body2005
Judgment V.M.Jain, J. 1. This Regular Second Appeal has been filed by Ram Chand, defendant No. 1 against, the judgment and decree dated 30.4.1979, passed by the Additional District Judge, Hissar, whereby the appeal filed by the plaintiff was partly allowed, judgment and decree dated 8.2.1979, passed by the trial Court were modified and the suit of the plaintiff was decreed, declaring the plaintiff to be owner to the extent of 82 Kanals 1 Maria, in the total land measuring 205 Kanals 11 Marias, instead of being the owner to the extent of 71 Kanals 3 Marias, out of the aforesaid total land measuring 205 Kanals 11 Marias, as decreed by the Trial Court. 2. The facts in brief are that Mallu, plaintiff (respondent No. 1) filed a suit for declaration that the entries made in the jamabandis were incorrect and required correction with regard to the share in the total land owned by the plaintiff and the other defendants. The said suit was contested by defendant No. 1 Ram Chand. Various issues were framed including issue No. 1 with regard to the ownership of the parties in the total land and the shares held by them. 3. After hearing both sides and perusing the record, the learned trial Court, vide judgment and decree dated 8.2.1979, decreed the suit of the plaintiff and held the plaintiff to be owner to be extent of 71 Kanals 3 Marias in the total land measuring 205 Kanals 11 Marias. Dis-satisfied with the judgment and decree passed by the trial Court, Mallu, plaintiff filed appeal in which Ram Chand, defendant No. 1 was proceeded against ex parte and learned Additional District Judge, vide judgment and decree dated 30.4.1979 partly accepted the appeal, modified the judgment and decree of the trial Court and declared the plaintiff to be owner to the extent of 82 Kanals 1 Maria (instead of 71 Kanals 3 Marias) out of the total land measuring 205 Kanals 11 Marias. Aggrieved against the same, defendant No. 1, Ram Chand filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. Aggrieved against the same, defendant No. 1, Ram Chand filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned counsel appearing for the defendant appellant has submitted that the lower Appellate Court has erred in Saw in modifying the judgment and decree of the trial Court and declaring the plaintiff to be owner to the extent of 82 Kanals 1 Marias instead of 71 Kanals 3 Marias as allowed by the trial Court. It has been submitted that during the course of the arguments, the counsel for both the parties had agreed before the trial Court that the plaintiff was owner only to the extent of 71 Kanals 3 Marias out of total suit land. It has been submitted that in view of the admission made by the counsel for both the parties, no case was made out for the Additional District Judge to have declared the plaintiff to be owner to the extent of 82 Kanals 1 Maria instead of 71 Kanals 3 Marlas. It has further been submitted that while modifying the judgment and decree of the trial Court, the learned Additional District Judge had not even referred to the aforesaid admission made by the counsel for the parties before the trial Court to the effect that the plaintiff was owner to the extent of 71 Kanals 3 Marias. Reliance has been placed on the law laid down by the Hon ble Supreme court in Banarsi Dass V/s. Kanshi Ram, AIR 1963 SC 1165. 6. After hearing the learned counsel for the parties and perusing the record, in my opinion, the following substantial question of law arises for consideration in this appeal:- "Whether the lower Appellate Court could have ignored the admission made by the counsel for the parties before the trial Court with regard to the ownership of the plaintiff in the suit land?" 7. The learned trial Court had discussed issues 1, 2 and 3 together. The learned trial Court had discussed issues 1, 2 and 3 together. In Para 9 of the judgment the learned trial Court after considering the entire evidence found that the plaintiff had purchased land measuring 81 Kanals 1 Marias out of total suit land from Sarsan, Manphul, Udayvir and Sheo Nath Singh and that the purchase of the said land to the extent of 71 Kanals 3 Marias by the plaintiff had not been disputed by the defendants counsel. It was further stated that both the counsel during arguments had agreed that the plaintiff was owner to the extent of 71 Kanals 3 Marias out of the suit land. The learned trial Court after noticing aforesaid admission made by the counsel for both the parties proceeded to consider the share of defendants in Para 10 of the judgment, noticing that the ownership of defendant No. 1 to the extent of 133 Kanals 4 Marias was also not disputed by the counsel for the parties. Accordingly, learned trial Court held that the plaintiff was owner to the extent of 71 Kanals 3 Marias, defendants 5 to 13 being L.Rs. of Sheo Nath Singh were owners to the extent of 1 Kanal 5 Marias whereas defendant No. 1 Ram Chand was owner to the extent of 133 Kanals 5 Marias, out of total land measuring 205 Kahals 11 Marias and directed that the jamabandis were liable to be corrected accordingly. 8. In the appeal the learned Additional District Judge without noticing aforesaid admissions made by the counsel for the parties with regard to the extent of ownership of the plaintiff over the suit land to the extent of 71 Kanals 3 Marias and the ownership of the defendant No. 1 Ram Chand to the extent of 133 Kanals 4 Marias, proceeded to decide the appeal ex parte and held the plaintiff to be owner of the land measuring 82 Kanals 1 Maria out of total land measuring 205 Kanals 11 Marias, thereby reducing the share of defendant No. 1 Ram Chand from 133 Kanals 4 Marias to 122 Kanals 8 Marias whereas defendants No. 5 to 13 were held to be owners to the extent of 1 Karial 4 Marias. 9. In (supra), it has been held by the Hon ble Supreme Court that an admission in so far as facts are concerned would bind the maker. 9. In (supra), it has been held by the Hon ble Supreme Court that an admission in so far as facts are concerned would bind the maker. In the present case as referred to above, the counsel for plaintiff had not only admitted that the plaintiff was owner only to the extent of 71 Kanals 3 Marias in the total land but had also admitted that defendant No. 1 was owner to the extent of 133 Kanals 4 Marias. In view of the aforesaid admission made by the counsel for the plaintiff before the trial court during the course of arguments, in my opinion, the learned Additional District Judge could not have increased the share of the plaintiff and reduced the share of defendant No. 1 Ram Chand in the total land measuring 205 Kanals 11 Marias, ignoring the aforesaid admission made by the counsel for the plaintiff before the trial Court, and that too without even noticing the said admission made by the counsel for the plaintiff before the trial Court. 10. In view of my detailed discussion above, in my opinion, the substantial question of law, referred to above, is to be decided in favour of the defendant appellant. Ordered accordingly. 11. In view of the above, present appeal is allowed judgment and decree dated 30.4.1979, passed by the Additional District Judge are set aside and that of the trial Court are restored and suit of the plaintiff is decreed only to the extent of 71 Kanals 3 Marias (instead of 82 Kanals 1 Maria) as decreed by the trial Court. No costs.