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2010 DIGILAW 627 (PNJ)

Sher Singh v. Sarti

2010-01-25

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. Defendant no.1 and legal representatives of defendant no.2 have preferred the instant second appeal. 2. Hari Singh and Jhabar filed suit. They have since died and are now represented by respondents Sarti and Santra daughters of Hari Singh. Bhiwa was common ancestor of the parties. He had four sons namely Gordhan, Harnarain, sadhu and Lekha. Defendants Sher Singh and Hoshiar Singh are sons of Lekha alias Lekh Ram. Plaintiffs Hari Singh and Jhabar were sons of Sadhu. Gordhan had a son namely Surja who died issueless. Harnarain has two sons namely Roshan and Rameshwar who are said to have shifted to Rajasthan. 3. The plaintiffs alleged that they are in cultivating possession of half share of the suit land measuring 27 kanals 9 marlas but on the basis of revenue entries, the defendants threatened to interfere in the possession of the plaintiffs. Accordingly, the plaintiffs sought declaration that they are in possession of half share of the suit land as tenants and the revenue entries in favour of Surja and Lekha since deceased are null and void and do not affect the rights of the plaintiffs. Permanent injunction restraining defendants from interfering in the possession of the plaintiffs over the half share of the suit land was also claimed. 4. The defendants, interalia, pleaded that they are in possession of the entire suit land and plaintiffs are not in possession of any part thereof. Entries in the revenue record were claimed to be correct. Learned Additional civil Judge (Senior Division), Narnaul vide judgment and decree dated 27.3.1997 dismissed the suit of the plaintiffs. However, first appeal preferred by the plaintiffs has been allowed partly by learned Additional District Judge, narnaul vide judgment and decree dated 3.4.2001 and the suit of the plaintiffs has been decreed partly holding plaintiffs to be in joint possession of the suit land to the extent of 11/27 share along with defendants. Defendants have been restrained from ousting the plaintiffs from joint possession of the suit land. I have heard learned counsel for the parties and perused the case file. 5. Perusal of the trial court file reveals that in jamabandi for 1961-62 Ex. Defendants have been restrained from ousting the plaintiffs from joint possession of the suit land. I have heard learned counsel for the parties and perused the case file. 5. Perusal of the trial court file reveals that in jamabandi for 1961-62 Ex. P2, Gordhan, Lekha and Harnarain sons of Bhiwa were recorded in possession of 2/3rd share of the suit land whereas plaintiffs Hari Singh and jhabar sons of Sadhu son of Bhiwa were recorded to be in possession of 1/3rd share of the suit land. However, in all subsequent jamabandies since 1965-66 till 1985-86 i. e. till before the filing of the suit, only Lekha son of Bhiwa and Surja son of Gordhan son of bhiwa were recorded to be in possession of suit land to the extent half share each. Admittedly Lekha and Surja have since died but the revenue entries continue in their favour. Learned counsel for the appellants vehemently contended that there is only stray entry in favour of the plaintiffs to the extent of their possession over 1/3rd share of the suit land in jamabandi for 1961-62 but in subsequent jamabandi till filing of the suit plaintiffs were never recorded to be in possession of any part of the suit land. The suit was instituted on 15.11.1991 i. e. almost 30 years after jamabandi for 1961-62 or after 25 years since jamabandi for 1965-66 since when plaintiffs were never recorded in possession of the suit land and therefore, the plaintiffs cannot be said to be in possession of any part of the suit land. On the other hand, learned counsel for the respondents contended that plaintiffs were recorded in possession of 1/3rd share of the suit land in jamabandi for 1961-62 and therefore, entries in subsequent jamabandis not depicting possession of the plaintiffs over any part of the suit land are incorrect. It was also contended that Surja was recorded to be in possession of half share of the suit land in revenue record since 1965-66 but Surja has since died issueless and therefore, his possessory rights would be inherited by sons of Surjas three uncles i. e. Harnarain, Sadhu (represented by plaintiffs) and Lekha (represented by defendants) and therefore, in this view of the matter also the plaintiffs were in joint possession of the suit land to the extent of 1/6 (1/2 x 1/3 share of the suit land ). 6. 6. I have carefully considered the rival contentions. The following substantial question of law arises for determination in the instant second appeal:- "whether the courts below have misread the documentary evidence in the form of revenue record and arrived at perverse finding ?" 7. In so far as entry in jamabandi for 1961-62 Ex. P2 depicting possession of plaintiffs over 1/3rd share of the suit land is concerned, the same has been wrongly relied upon by lower appellate court because for almost 30 years thereafter till filing of the suit the plaintiffs were never depicted to be in possession of the said share in the suit land in the revenue record. The plaintiffs never challenged the said entries during long period of almost 30 years. Consequently, on the basis of bald, solitary and stray entry in jamabandi for 1961-62 in favour of the plaintiffs, they cannot be held to be in possession of 1/3rd share of the suit land when all the subsequent revenue entries for almost 30 years till filing of the suit did not depict the possession of the plaintiffs over any part of the suit land. However, as indicated hereinabove, Surja was recorded to be in possession of half share of the suit land. Surja has since died issueless. His possessory rights would, therefore, be inherited by branches of his three uncles namely Harnarain Sadhu and Lekha. Consequently, the plaintiffs (being sons of Sadhu one of three uncles of Surja) got 1/3rd share in half share of Surja in the suit land. Accordingly, the plaintiffs are held to be in joint possession of the suit land to the extent of 1/6 share only and not to the extent of 11/27 share as held by the lower appellate court. The finding of the lower appellate court is liable to be modified to this extent as same is perverse to that extent. 8. Accordingly, substantial question of law framed hereinabove is answered in the affirmative to the aforesaid extent. For the reasons recorded hereinabove, the appeal is allowed partly and impugned judgment and decree of the lower appellate court are modified and the suit of the plaintiffs/respondents shall be deemed to have been decreed to the extent of their joint possession over 1/6 share (instead of 11/27 share as directed by lower appellate court) in suit land measuring 27 kanals 9 marlas. 9. 9. The parties shall suffer their respective costs throughout in view of divided success.