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2015 DIGILAW 152 (HP)

Karnail Singh v. Gian Chand (died) through LRs.

2015-03-09

RAJIV SHARMA

body2015
JUDGMENT Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 10.12.2002 rendered by the District Judge, Una in Civil Appeal No. 116 of 1998. 2. Key facts necessary for the adjudication of this appeal are that appellants-plaintiffs (hereinafter referred to as the “plaintiffs” for convenience sake) instituted a suit for declaration with permanent injunction and in the alternative suit for possession against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake). According to the plaintiffs, land comprised in Khewat No.221, Khatauni No.632 and 636 measuring 28-15 kanals was owned and possessed by Gian Chand (deceased) to the extent of 0-7 kanals being 403/35280 shares out of suit land. One Smt. Tulsi widow of late Sh. Raghbir Singh was owner in possession of land measuring 7-4 kanals being 8820/35280 shares out of the suit land comprised in Khewat No.221. Shiv Saran, predecessor-in-interest of plaintiffs, alongwith his sisters and brothers, was owner in possession of land to the extent of 7-4 kanals being 8820/35280 shares in the aforesaid khewat No. 221. Tulsi had gifted through gift deed dated 20.5.1961 her entire share to Gian Chand, predecessor-in-interest of Kuldip Singh and Satpal Singh. Gian Chand became owner in possession of the land measuring 7-11 kanals. Gian Chand thereafter sold four kanals of land being 80/575 shares out of the land to Shiv Saran through registered sale deed Ext. PW-2/A dated 26.6.1976 and also delivered the possession. Thereafter, Gian Chand again sold 3-11 kanals of land being 71/575 shares out of land measuring 28-15 kanals to plaintiff Karnail Singh vide registered sale deed 4.5.1971 Ext. PW1/A. However, in subsequent Jamabandi for the year 1976-77, the revenue authorities wrongly described the share of plaintiffs to be 71 and 80 respectively out of 35280 shares, whereas out of total shares 35280, shares should have been 4323 and 4900 respectively. The name of Gian Chand was to be deleted since he had sold whole of his share in the khewat and, as such, revenue entries in the name of Gian Chand in the Jamabandi for the year 1976-77 in the column of ownership are wrong and illegal, whereas plaintiff remained in possession of the land purchased from Gian Chand. The same entries were carried forward in the Jamabandi for the year 1980-81. Gian Chand wrongly and illegally sold land measuring 5-18 kanals comprised in Khasra Nos. The same entries were carried forward in the Jamabandi for the year 1980-81. Gian Chand wrongly and illegally sold land measuring 5-18 kanals comprised in Khasra Nos. 2403, 2407, 2408, 2402 and 2425 vide two separate registered sale deeds dated 19.4.1982 and 21.4.1982 to defendants No. 2 to 4, namely Ranjit Singh, Satpal and Gurdyal Singh. The sale deed made in favour of defendants Nos. 2 to 4 and subsequent mutations as vendees in the revenue record were wrong illegal, void and baseless. Shri Gian Chand has died during the pendency of this regular second appeal and his legal heirs were brought on record vide order dated 21.9.2011 in CMP (M) No. 1436 of 2010. 3. The suit was contested by the defendants. According to them, they were in possession of the suit land and plaintiffs never obtained possession of the suit land at any time. 4. Issues were framed by the Sub Judge 1st Class on 26.11.1992. He decreed the suit on 20.6.1998. Defendants No. 2 to 4, namely Ranjit Singh, Satpal and Gurdyal preferred an appeal against the judgment and decree dated 20.6.1996 before the District Judge, Una. He allowed the appeal on 10.12.2002. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 26.12.2003. “Whether the findings recorded by the learned first Appellate Authority, that respondent No. 1 had subsisted interest in the property in dispute, are dehors the evidence on record and based on conjectures and surmises? 5. Mr. Sanjeev Kuthiala, learned counsel for the appellant has supported the judgment and decree passed by the Sub Judge, 1st Class. He has vehemently argued that the first Appellate Court has not correctly appreciated the oral as well as documentary evidence led by the parties. According to him, once Gian Chand has already sold his entire land in favour of the plaintiffs, he could not sell the land to contesting defendants, namely Ranjit Singh, Satpal and Gurdial Singh by way of sale deeds dated 19.4.1982 and 21.4.1982. 6. Mr. N.K. Thakur, learned Senior counsel for the respondents has supported the judgment and decree passed by first appellate Court. 7. Defendants No.3 and 4 Satpal and Gurdial Singh were proceeded ex parte. One of the plaintiffs Kashmir Singh died during the pendency of the appeal. His legal heirs were brought on record on 20.12.2007 in CMP No. 1023 of 2007. 8. 7. Defendants No.3 and 4 Satpal and Gurdial Singh were proceeded ex parte. One of the plaintiffs Kashmir Singh died during the pendency of the appeal. His legal heirs were brought on record on 20.12.2007 in CMP No. 1023 of 2007. 8. I have heard the learned counsel for the parties and have gone through the records carefully. 9. Precise case of the plaintiffs is that Gian Chand has sold 4 kanals of land out of land measuring 28-15 kanals comprised in khewat No.221 in favour of plaintiff Shiv Saran vide registered sale deed Ex.PW-2/A dated 26.3.1976 and thereafter again sold land measuring 3-11 kanals out of land comprised in Khewat No.221 to plaintiff Karnail Singh vide registered sale deed Ex.PW-1/A dated 4.5.1976. According to the plaintiffs, mutations were also attested vide Ex.P-7 and Ex.P-8, respectively. Plaintiffs have also placed on record copy of Jamabandi for the year 1976-77 describing the share of plaintiffs to be 71 and 80, respectively out of 35280 shares. According to them, out of shares 35280, their shares should have been 4323 and 4900, respectively and the name of Gian Chand was to be deleted since he had sold his entire share in Khewat No.221. Gian Chand has sold 5-18 kanals of land comprised in Khasra Nos. 2403, 2407, 2408, 2402 and 2425 vide separate registered sale deeds Ex.DW-1/A and Ex.DW-2/A dated 19.4.1982 and 21.4.1982, respectively in favour of defendants No.2 to 4, namely, Ranjeet Singh, Sat Pal and Gurdial Singh. In this case no partition has taken place. In Ex.PW-1/A and Ex.PW-2/A executed by Gian Chand, land has been sold in favour of plaintiffs Karnail Singh and Shiv Saran on 4.5.1976 and 26.3.1976. The land has been sold as a share out of the total land of khewat No. 221 measuring 28-15 kanals as per copy of Jamabandi for the year 1970-71. Subsequently, land has been sold vide registered sale deeds Ext. DW1/A and DW1/B executed by Gian Chand in favour of contesting defendants on 19.4.1982 and 21.4.1982 in respect of shares of Gian Chand in the land of khewat No. 292 as per Jamabandi for the year 1976-77. Specific Khasra numbers have been mentioned in the sale deed. The possession was also delivered to the contesting defendants. Khasra Nos. which have been sold vide sale deeds Ext. DW1/A and Ext. Specific Khasra numbers have been mentioned in the sale deed. The possession was also delivered to the contesting defendants. Khasra Nos. which have been sold vide sale deeds Ext. DW1/A and Ext. DW1/B are specifically recorded as Hissadari possession of Gian Chand, as per copy of Jamabandi for the year 1976-77 Ext. P4. Plaintiff Karnail Singh in his cross-examination has admitted that the sales were made as per Hissadari possession. He has also admitted that Gian Chand was in Hissadari possession of the lands of Khasra No. 2193 to 2195 with Khasra Nos. 2402, 2403, 2407, 2408 and 2425 sold by Gian Chand in favour of contesting defendants Ranjit Singh, Satpal and Gurdyal Singh. He has also admitted that these defendants are still in possession of the land measuring 5 kanals 18 marlas as hissadari kawiz. Gian Chand has also deposed that he has given the possession of the land to defendant Ranjit Sigh and others and prior to sale, he was in possession. The defendants have never been dispossessed from the suit land. The entries recorded by the revenue authorities were strictly as per law. It has also come on record that Gian Chand was having more joint land with other co-sharer, as is evident from the copy of Jamabandi for the year 1976-77 Ext. P4, for the year 1980-81 Ext. P-3 and for the year 1983-84 Ext. P1. Plaintiff Karnail Singh has not denied that Gian Chand was having more joint land with his co-owners apart from the land sold by him in favour of plaintiffs. The defendants have purchased Hissedari possession with specific Khasra numbers and they were also in possession of the land as noticed earlier. Land sold to the defendants has not been specifically connected with the land sold in favour of the plaintiffs as the sales have been made on the basis of different jamabandis and different Khasra numbers. 10. Learned First Appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment and decree passed by the first appellate court. 11. In view of the analysis and discussion made hereinabove, no substantial question of law much less to say substantial question of law is involved in the present Regular Second Appeal and the same is dismissed. Pending applications, if any, also stands disposed of. 11. In view of the analysis and discussion made hereinabove, no substantial question of law much less to say substantial question of law is involved in the present Regular Second Appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.