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2012 DIGILAW 1666 (PNJ)

Gurcharan Kaur v. Sukhwant Singh

2012-12-01

L.N.MITTAL

body2012
Judgment 1. By this common judgment, I am disposing of three regular second appeals i.e. RSA No.4743 of 2011 and RSA No.4745 of 2011, both titled as “Smt. Gurcharan Kaur and others Vs. Sewa Singh and others” and RSA No.4744 of 2011, titled as “Mukhtiar Singh and others Vs. Sukhwant Singh and others” being interconnected. These appeals have arisen out of two suits and counter claim in one suit. 2. Suit No.270 of 2000 was filed by Darshan Singh and Sardool Singh plaintiffs sons of Kapoor Singh. Darshan Singh has since died and is represented by appellants No.1 to 3 as his legal representatives whereas Sardool Singh- plaintiff No.2 is appellant No.4 in and 4745 of 2011 having arisen out of the said suit and counter claim made therein. The said suit was filed against Sewa Singh, Bal Kaur, Niranjan Singh, Vachittar Singh, Narender Kaur and general public as defendants. Defendants No.1 and 2 are son and daughter of Dewan Singh. Defendant No.3 is son of Dayal Kaur daughter of Dewan Singh. Defendants No.4 and 5 are son and wife respectively of late Lakhwinder Singh son of Dayal Kaur daughter of Dewan Singh. Defendants No.1 to 5 were impleaded as legal heirs of Dewan Singh (since deceased). Sukhwant Singh, Jaswant Singh, Narender Singh and Nirmal Singh respondents No.1 to 4, who are sons of Sewa Singh-defendant No.1, got themselves impleaded as party in view of general public being defendant No.6 in the suit. Respondents No.1 to 4 herein contested the suit and also made counter claim. 3. Suit No.249 of 2001 was filed by Sukhwant Singh, Jaswant Singh, Narender Singh, Nirmal Singh and their father Sewa Singh (plaintiffs/respondents in RSA No.4744 of 2011 arising out of the said suit) against legal heirs of Kehar Singh as defendants (appellants including legal heirs of some of the original deceased defendants in the aforesaid appeal). 4. Case of the plaintiffs in suit No.270 of 2000 is that they had purchased the suit land measuring 62 kanals 8 marlas from Dewan Singh and entire sale consideration was paid to Dewan Singh who also delivered actual physical possession of the suit land to the plaintiffs in the year 1972. Entry in this regard was also made in the revenue record. However, sale deed was not executed by Dewan Singh. Entry in this regard was also made in the revenue record. However, sale deed was not executed by Dewan Singh. Possession of plaintiffs was recorded as “Bila Lagan Ba Vajah Leney Bai” i.e. without payment of rent on account of purchase. Plaintiffs in this suit sought declaration that they have become owners in possession of the suit land by adverse possession and entries in column of ownership in the revenue record depicting Dewan Singh to be owner of the suit land are null and void etc. and not binding on the rights of the plaintiffs. 5. Respondents No.1 to 4 herein broadly denied the plaint averments and pleaded that the suit land was given to the plaintiffs as tenants. However, since the plaintiffs have denied their tenancy and have also denied ownership of respondents No.1 to 4 as well as their predecessor Dewan Singh (respondents No.1 to 4 having inherited the suit land from their grand father Dewan Singh by way of Will), respondents No.1 to 4 made counter claim for possession of the suit land. 6. Learned trial court dismissed the suit of the plaintiffs as well as counter claim of respondents No.1 to 4. However, the lower appellate court disposed of first appeals filed by both the parties by a common judgment and maintained the dismissal of the suit and decreed the counter claim of respondents No.1 to 4 and passed decree for possession over the suit land on the basis of their title. Feeling aggrieved plaintiffs (including legal representatives of plaintiff No.1) have filed RSA Nos.4743 and 4745 of 2011. 7. In suit No.249 of 2001, Sukwant Singh etc. respondents/plaintiffs made similar claim for possession of the suit land measuring 65 kanals 14 marls on the ground that suit land was given to Kehar Singh as tenant and defendants/appellants, who are his legal heirs, having since denied their tenancy as well as ownership of plaintiffs and their predecessor, plaintiffs are entitled to possession of the suit land. 8. Defendants in the said suit raised similar defence that Kehar Singh had purchased the suit land from Dewan Singh in the year 1972 and paid the entire sale consideration to vendor Dewan Singh who put Kehar Singh in possession of the suit land. Defendants also set up claim of ownership by adverse possession. 9. 8. Defendants in the said suit raised similar defence that Kehar Singh had purchased the suit land from Dewan Singh in the year 1972 and paid the entire sale consideration to vendor Dewan Singh who put Kehar Singh in possession of the suit land. Defendants also set up claim of ownership by adverse possession. 9. Trial Court dismissed the aforesaid suit, but lower appellate court has allowed the first appeal preferred by plaintiffs and has decreed the suit for possession of the suit land. 10. Feeling aggrieved, defendants of the said suit (including legal representatives of some of the deceased defendants) have filed RSA No.4744 of 2011. 11. I have heard counsel for the parties and with their assistance perused the case files. 12. Counsel for the appellants vehemently contended that vide document dated 20.11.1965 Ex.PW1/A, Sardool Singh son of Labh Singh, Shisha Singh and Baja Singh (not party to these cases), Kehar Singh and Kapoor Singh (their heirs being appellants of these appeals) and Dewan Singh (his heirs being respondents in these appeals) agreed among themselves to purchase land in shares mentioned in the said document i.e. Sardool Singh son of Labh Singh 1/9th share, Kehar Singh and Kapoor Singh 1/3rd share, Baja Singh and Shisha Singh 1/3rd share and Dewan Singh 2/9th share and pursuant thereto, sale deeds were executed in favour of Baja Singh and Shisha Singh (including their nominees/family members), but sale deeds were not executed in favour of Kehar Singh and Kapoor Singh although they had also paid the entire sale consideration to vendor Dewan Singh and possession of suit land was also delivered to them. It was contended that in fact Dewan Singh had pre-empted sale of 392 kanals land (including suit land of both the present suits), out of which the aforesaid persons were to get different shares. The pre-emption suit was decreed on 06.02.1970 and possession was delivered to Dewan Singh on 03.06.1970 and thereafter possession of the suit land of the present two suits was given by Dewan Singh to Kapoor Singh and Kehar Singh (predecessors of the present appellants) in the year 1972. Counsel for the appellants referred to revenue record which depicted possession of Kapoor Singh and Kehar Singh since the year 1972 on account of purchase by them without payment of any Lagan or rent. Counsel for the appellants referred to revenue record which depicted possession of Kapoor Singh and Kehar Singh since the year 1972 on account of purchase by them without payment of any Lagan or rent. It was thus argued that plea of adverse possession taken by the appellants in defence (defence of counter claim in one suit and defence in the other suit) is proved because their adverse possession including possession of their predecessor is established since the year 1972 and the suits were filed in the years 2000 and 2001. It was pointed out that Dewan Singh predecessor of respondents had died in the year 1984 and for almost 12 years, he did not challenge the aforesaid entries in the revenue record and even after his death, respondents did not challenge the said entries for another 16 years. 13. On the other hand, counsel for contesting respondents pointed out that document dated 20.11.1965 Ex.PW1/A was not even referred to in Suit No.270 of 2000 in the plaint. It was also pointed out that the said document has no description of the land to be purchased. It was also canvassed that the said document pertained to intended purchase of some land and does not refer to pre-emption suit which was filed by Dewan Singh regarding 392 kanals land including suit land of the present two suits. It was also submitted that according to document Ex.PW1/A, Baja Singh and Shisha Singh were to get 1/3rd share in the land (measuring 392 kanals which was pre-empted if the said land was intended to be referred to in the document), but sale deeds Exs.D8 to D11 in favour of Baja Singh, Shisha Singh and their family members pertain to 263 kanals 14 marlas land i.e. for more than 2/3rd share of 392 kanals land and there is no sale deed in favour of Sardool Singh son of Labh Singh (prospective purchaser of 1/9th share) and he has also not filed any suit although he has explained that he got executed sale deed of his share also in favor of Baja Singh, Shisha Singh and their family members being his relatives. Counsel for the respondents also argued that there is also no evidence regarding payment of any sale consideration by Kehar Singh and Kapoor Singh-predecessors of present appellants whereas Baja Singh etc. Counsel for the respondents also argued that there is also no evidence regarding payment of any sale consideration by Kehar Singh and Kapoor Singh-predecessors of present appellants whereas Baja Singh etc. vendees of sale deeds Exs.D8 to D11 paid the sale consideration to Dewan Singh, major part thereof having been paid before the Sub-Registrar at the time of registration of the sale deeds in the years 1976 and 1977 and, therefore, no sale consideration was paid by the alleged prospective vendees (including predecessors of present appellants) in the year 1972. Appellants have not produced any document regarding payment of any sale consideration by them to Dewan Singh. It was also argued that even according to appellants' own pleading and evidence, their possession was permissive being consequent to alleged sale in their favour and, therefore, their possession was not adverse and consequently respondents No.1 to 5 being owners of the suit land are entitled to possession thereof on the basis of title, even if the plea of tenancy raised by them is not proved as sought to be canvassed by the counsel for the appellants. 14. I have carefully considered the rival contentions. Document Ex.PW1/A heavily relied on by counsel for the appellants does not serve the purpose of appellants in any manner. This document does not contain the description of any land much less of the suit land. This document refers to intended purchase of some land jointly by all the persons mentioned therein in respective shares. It does not refer to any pre-emption suit filed or to be filed by Dewan Singh. Moreover, even according to this document, sale consideration was to be contributed proportionately to the share of the prospective vendees. However, appellants have not produced any document whatsoever regarding payment of any sale consideration either to Dewan Singh-pre-emptor or to anybody else. On the contrary, Baja Singh and Shisha Singh etc., in whose favour sale deeds Exs.D8 to D11 were executed, paid the sale consideration partly by way of separate receipts and substantially before the Sub-Registrar in the years 1976 and 1977. It cannot be said that appellants or their predecessors had paid sale consideration in the year 1972. It is also significant to note that prospective purchaser as per document Ex.PW1/A was Kapoor Singh in so far as the appellants in RSA Nos.4743 and 4745 of 2011 are concerned. It cannot be said that appellants or their predecessors had paid sale consideration in the year 1972. It is also significant to note that prospective purchaser as per document Ex.PW1/A was Kapoor Singh in so far as the appellants in RSA Nos.4743 and 4745 of 2011 are concerned. However, the revenue entries since the year 1972 depicted possession of sons of Kapoor Singh although Kapoor Singh himself remained alive till the year 1987 as submitted by counsel for the appellants after seeking instructions. Moreover, sale deeds in favour of Baja Singh and Shisha Singh are for more than 2/3rd share of the land measuring 392 kanals whereas according to document PW1/A, they had to get 1/3rd share only. This document was also not referred to in plaint of civil suit No.270 of 2000. For all these reasons, this document does not help the appellants in any manner. 15. As regards revenue entries, the same depicted possession of the appellants including their predecessors over the suit land since the year 1972. However, these entries do not depict that possession of the appellants over the suit land was adverse. On the contrary, these documents rather depict that their alleged possession was permissive on account of alleged purchase although purchase of suit land by appellants or their predecessors is not proved. However, tenancy in favour of appellants or their predecessors pleaded by respondents No.1 to 5 has also not been proved because there is no document worth the name on record to depict the alleged tenancy or payment of any rent or Batai by the alleged tenants. Appellants have not claimed relief of specific performance of the alleged agreement vide document Ex.PW1/A nor they have pleaded that they have always been ready and willing to perform their part of the alleged contract nor payment of sale consideration by them is proved. In these circumstances, their possession is also not protected by Section 53-A of the Transfer of Property Act. Possession of the appellants has also not proved to be adverse. Rather their possession was permissive. Consequently, respondents No.1 to 5 being owners of the suit land are entitled to possession thereof on the basis of their title. Their claim cannot be defeated because adverse possession of the appellants within parameters of Article 65 of the Schedule to the Limitation Act is not established at all. 16. Rather their possession was permissive. Consequently, respondents No.1 to 5 being owners of the suit land are entitled to possession thereof on the basis of their title. Their claim cannot be defeated because adverse possession of the appellants within parameters of Article 65 of the Schedule to the Limitation Act is not established at all. 16. In the aforesaid circumstances, counter claim of respondents No.1 to 4 in suit No.270 of 2000 and also claim of plaintiffs in suit No.249 of 2001 has been rightly decreed by the lower appellate court. In view of almost admitted factual position including facts based on documentary evidence relied on by the appellants themselves, no other conclusion could be arrived at. Whole claim of the appellants is based on their plea of adverse possession, but according to their own pleadings and documents, their possession was permissive on account of alleged sale and not adverse. Appellants have failed to establish alleged sale in their favour. No registered sale deed was ever executed in favour of appellants or their predecessors and so the question of a valid sale in their favour did not arise. 17. For the reasons aforesaid, I find no merit in these second appeals. No question of law, much less substantial question of law, arises for determination in these second appeals. Accordingly, all the three appeals are dismissed.