Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 450 (PNJ)

Ishar Kaur v. Collector

2005-03-29

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. The appellant filed suit for declaration to the effect that she was owner in possession of the house property in dispute and the defendants be restrained from selling the same in open auction by treating the same as evacuee property. Claim of the appellant is based on sale deed dated 24.1.1941, Ex.P-4, executed by Shadi, son of Nathu, caste Teli Muslim. The property was assessed to house tax and a house number had been allotted but the revenue officials wrongly recorded the same as evacuee property. An auction warrant of property was issued on 24.8.1990. 2. The respondents contested the suit and claimed that suit property belonged to the Central Government as per entry in Jamabandi for the year 1982-83 and sale deed relied upon by the plaintiff did not relate to the suit property. It was further stated that the suit property stood allotted to defendant Nos. 3 and 4 vide order dated 12.8.1993 in lieu of their claim. Defendant Nos. 3 and 4 also took the same stand as defendant Nos. 1 and 2. they stated that the Central Government transferred the suit property in their favour under the Punjab Package Deal Properties (Disposal) Act, 1976 and, therefore, the suit property was validly allotted to them. 3. The trial Court dismissed the suit. Reliance was placed on jamabandi for the year 1992-93 recording the property as evacuee property and further entry dated 18.8.1993 in favour of the defendants. Ex.D-5, Jamabandi for the year 1962-63 also recorded the title of the property in favour of the Custodian department. In jamabandi Ex.D7 for the year 1982-83, possession of the plaintiff was recorded but it was observed that no basis for the same was shown. It was also observed that no document was produced to show that previous owner owned the property in the year 1941. It was also observed that identification of the property by Khasra number etc. was, not proved and oral evidence led by the plaintiff was not enough to prove the identity of the suit property. The lower appellate Court affirmed the findings of the trial Court. Hence this appeal. 4. It was also observed that identification of the property by Khasra number etc. was, not proved and oral evidence led by the plaintiff was not enough to prove the identity of the suit property. The lower appellate Court affirmed the findings of the trial Court. Hence this appeal. 4. Learned counsel for the appellant submitted that a substantial question of law arises for consideration: Whether the findings recorded by the Courts below holding the suit property to be evacuee property, are perverse, having been recorded by ignoring evidence of possession of the plaintiff for more than 50 years and sale deed Ex.P-4 in the year 1941 ? 5. He relies upon a judgment of the Apex Court in Hafazat Hussain V/s. Abdul Majeed, to the effect that even in a second appeal, interference is permissible in exceptional cases on the ground of perversity. 6. Learned counsel for the private respondents relied upon decisions of the Apex Court in Sheel Chand V/s. Prakash Chand, (1999-1)121 P.L.R. 409 (S.C.), Thimmaiah v. Ningamma, 2000(4) R.C.R. (Civil) 609 and Navaneethammal V/s. Arjuna Chetty, in support of his submission that finding of fact concurrently recorded by the Courts below was not open to be challenged in second appeal. 7. I have considered the rival submissions and perused the record. 8. Learned counsel for the appellant relied upon evidence referred to in para 8 of the trial Court judgment, comprising of sale deed Ex.P-4 and oral evidence of PW-2 Joga Singh to the effect that prior to 1947, he did the wood work in the house which was constructed in the year 1943. PW-2 Joga Singh and PW-3 Milkhi Ram proved the sale deed. PW-4 Mohan Singh, Senior Clerk of the office of Municipal Committee proved that House No. 798 was assessed to house tax and one Gaindu Ram (husband of the plaintiff) was recorded as owner. PW-5 Darbara Singh son and attorney of the plaintiff proved the averments in the plaint. Learned counsel for the private respondents also submitted that there could be no dispute about the identity of the suit property as boundaries are mentioned in the sale deed and possession of the plaintiff and construction of house on the property purchased in duly proved. PW-5 Darbara Singh son and attorney of the plaintiff proved the averments in the plaint. Learned counsel for the private respondents also submitted that there could be no dispute about the identity of the suit property as boundaries are mentioned in the sale deed and possession of the plaintiff and construction of house on the property purchased in duly proved. He submitted that the suit property being in abadi area, there could be no documentary evidence and the defendants were also not able to establish that suit property in the year 1941-42 was owned by some one else other than the persons from whom the plaintiff purchased the same. The respondents did not produce any documentary evidence of the period prior to 1947. He also submitted that even in the revenue record, possession of the plaintiff was recorded as tenant which proved that the plaintiff was in possession and nature of possession as tenant was without any basis. 9. The above evidence referred to by the learned counsel for the appellant proves beyond any doubt that plaintiff purchased the suit property in the year 1941 and constructed a house of which she is in possession. The respondents have not been able to show that in the year 1941, suit property was owned by someone else and on what basis, the property is claimed to be evacuee property. No record has been produced to this effect. It cannot, thus be said that the property purchased by the plaintiff was some other property and property in possession of the plaintiff is evacuee property. There is no basis for this finding. Thus, finding recorded by both the Courts below on this question is perverse. 10. In view of the above, answer to the question posed above has to be in favour of the appellant. 11. For the above reasons, this appeal is allowed. Decree of the Courts below is set aside and the suit of the appellant is decreed. No costs.