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2008 DIGILAW 2131 (PNJ)

Rajinder Singh v. Ram Avtar alias Hem Chand

2008-12-16

HARBANS LAL

body2008
JUDGMENT Harbans Lal, J.:-This appeal is directed against the judgment/ decree dated 7.3.2007 passed by the Court of learned District Judge, Gurgaon, whereby he dismissed the appeal preferred against the judgment/ decree dated 20.9.2006 vide which the Court of learned Civil Judge (Junior Division), Gurgaon decreed the suit for sanctioning the mutation in favour of the plaintiffs in terms of judgment and decree dated 10.3.1980 passed in case titled as Ram Avtar and others v. Shiv Lal in Civil Suit No.460 of 1.9.1978 and for recording the names of the plaintiffs as co-sharers to the extent of one-third share in the land comprised in Rectangle No.82, Killa Nos.11 (3 kanal 2 marlas), 19 (5 kanal 13 marlas) 22 (8 kanal 0 marla) and 45/312 share in the land comprised in Rectangle No.82, Killa No.20/1 (7 kanal 12 marlas), 21 kanal (8 kanal 0 marla) situated in the revenue estate of Village Sidhrawali, Tehsil and District Gurgaon. 2. The facts which form the backdrop of the suit are that the plaintiffs are the owners and in possession of the suit land to the extent of one-third share vide decree dated 10.3.1980 passed in civil suit bearing caption Ram Avtar and others v. Shiv Lal. The appeal preferred there against by the defendants was also dismissed vide judgment dated 9.10.1980. The aforesaid decree was executed and mutation No.744 was entered in favour of the plaintiffs. The defendants in collusion with revenue officials, illegally got cancelled the said mutation. The entries being erroneous in the revenue record and against the order of the Civil Court were liable to be set aside and the same were required to be corrected in favour of the plaintiffs. The defendants have no right to take an undue advantage of such wrong entries. They are threatening to dispossess the plaintiffs and to alienate the suit land. The defendants have no right to take an undue advantage of such wrong entries. They are threatening to dispossess the plaintiffs and to alienate the suit land. On these allegations, the suit has been filed for declaration to the effect that the plaintiffs are owners in possession to the extent of one-third share in agricultural land, comprised in Khewat No.176/194, Rectangle No.82, Killa No.11 (3 kanal 2 marlas), 19 (5 kanal 13 marlas), 22 (8 kanal 0 marla), 45/312 share in Rectangle No.82, Killa No.20/1 (7 kanal 12 marlas), 22 (8 kanal 0 marla) total measuring 32 kanal 7 marlas situated in the revenue estate of aforesaid Village and that the revenue entries showing defendants to be in possession of disputed property are wrong and illegal, with consequential relief of perpetual injunction restraining the defendants from interfering in the possession of the plaintiffs over the suit land apart from alienating the same. 3. In answer to this claim, the defendants in their joint written statement, have inter-alia pleaded that the suit is not maintainable and is barred by limitation. It has been denied that the plaintiffs are the owners in possession of the disputed property, rather the answering defendants are the absolute owners in peaceful possession of the same. It is further denied that the plaintiffs have become the owners in possession of the disputed property through the alleged judgment and decree. As alleged, the mutation No.744 has been rightly cancelled. 4. The following issues were framed by the learned trial Court:- 1. Whether plaintiffs are owners in possession of the suit land described in para no.1 of the plaint? OPP 2. Whether the entries in the revenue record of the suit land are wrong, illegal, void and liable to be set aside? OPP 3. Whether plaintiffs are entitled to claim as prayed ? OPP 4. Whether suit of the plaintiffs is not maintainable in the present form? OPD 5. Whether suit of the plaintiff is barred by their own act, conduct, acquiescence and latches? OPD 6. Whether suit of the plaintiff is time barred? OPD 7. Whether suit is not property valued for the purpose of court fee and jurisdiction? OPD 8. Relief. 5. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed at the outset. OPD 6. Whether suit of the plaintiff is time barred? OPD 7. Whether suit is not property valued for the purpose of court fee and jurisdiction? OPD 8. Relief. 5. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the defendants went up in appeal, which was dismissed by the First Appellate Court. Being undaunted and dissatisfied therewith, the defendants have preferred this appeal. 6. I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. 7. Mr. Sandeep Sharma, Advocate on behalf of the appellants urged with great eloquence that a combined reading of Ex.P.4, the certified copy of the judgment delivered by the Court of learned Additional District Judge, Gurgaon as well as Ex.P.10 Mutation No.744 would reveal that this mutation is discordant with the operative part of Ex.P.4 and it is because of this reason that it has been cancelled. He further puts that this mutation being in teeth with E.P.4, both the Courts below have gravely erred in decreeing the suit. 8. To tide over these submissions, Mr. P.R. Yadav, Advocate representing the respondents maintained that if it is assumed that Ex.P.10 is not in consonance with Ex.P.4, the remedy open to the defendants was to approach the concerned authorities for necessary correction. Ex.P.10 has been got cancelled at the back of the plaintiffs and that being so, no fault can be found with the findings returned by both the Courts below. 9. I have given a deep and thoughtful consideration to the rival contentions. 10. The substantial question of law which arises for determination is “as to whether a suit for simpliciter declaration is maintainable?” There is no dispute with the proposition of law that a simpliciter suit for declaration without seeking relief of possession is not maintainable. But here in this case, the facts are distinguishable. Vide Ex.P.2, the certified copy of the judgment dated 10.3.1980 delivered by the Court of learned Sub Judge Ist Class, Gurgaon, Ram Avtar alias Hem Chand, Kanwar Lal, Parbhu sons, Chandro daughter and Sarti widow of Hira Lal son of Nain Sukh were granted a decree for joint possession to the extent of one-third share in the disputed land. Vide Ex.P.2, the certified copy of the judgment dated 10.3.1980 delivered by the Court of learned Sub Judge Ist Class, Gurgaon, Ram Avtar alias Hem Chand, Kanwar Lal, Parbhu sons, Chandro daughter and Sarti widow of Hira Lal son of Nain Sukh were granted a decree for joint possession to the extent of one-third share in the disputed land. The appeal was preferred against this judgment. The learned Additional District Judge, Gurgaon vide his judgment/ decree dated 9.10.1980 Ex.P.4 held as under:- “For the reasons recorded above, there is no merit in the appeal. However, there is merit in the cross-objections. The decree dated 10.3.1980 under appeal passed by learned trial Judge, is hereby set aside. A decree for joint possession to the extent of 1/3 rd share in the land comprising in Rect. No.82, Killa Nos.11(3-2), 19(5-13), 22(8-0) and 45/312 share in the land comprising in Rect. No.82, Killa No.20/1 (7-12), 21(8-0), situated in the revenue estate of village Sidhrawali, Tehsil and District Gurgaon, is hereby passed in favour of the plaintiff respondents against the defendant.” The mutation Ex.P.10 was sanctioned on the basis of this decree. When the defendants started threatening to dispossess the plaintiffs and to alienate the land in dispute, the latter filed the present suit. Thus, this suit is maintainable as the plaintiffs being in possession were not required to seek the consequential relief of possession. So, the substantial question of law is determined accordingly. A glance through Ex.P.10 would reveal that no reason worth the name has been assigned with regards to the cancellation of this mutation. To add further to it, as would be apparent from the record, this mutation was cancelled without affording an opportunity of being heard to the plaintiffs. Even the doctrine of ‘Audi Alteram Partem’ contemplates that no one should be condemned unheard. If the correction is to be made in the entries existing in the revenue record, the concerned revenue authority is required to notify such change to the party to be effected thereby. In the instant case, the plaintiffs-respondents have been condemned unheard. The order cancelling this mutation is non-reasoned and laconic. Sequelly, the findings returned by both the Courts below warrant no interference. The plaintiffs- respondents are entitled to get the land as mentioned in the operative part of Ex.P.4 mutated in their names in the revenue record. In the instant case, the plaintiffs-respondents have been condemned unheard. The order cancelling this mutation is non-reasoned and laconic. Sequelly, the findings returned by both the Courts below warrant no interference. The plaintiffs- respondents are entitled to get the land as mentioned in the operative part of Ex.P.4 mutated in their names in the revenue record. As a sequel of the above discussion, this appeal being devoid of any merit is dismissed. ------------------