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2018 DIGILAW 1748 (PNJ)

Gajjan Singh v. Roop Singh

2018-04-17

AMIT RAWAL

body2018
JUDGMENT : Amit Rawal, J. The appellants-plaintiffs are aggrieved of the concurrent findings of fact, whereby the suit claiming declaration that the plaintiffs are co-sharer in equal share to the extent of 1/6th share in the suit land referred to in the plaint measuring 165B-7B, as per entries of khewat No.45 of jamabandi 1955-56 of Village Ucha Gaon, Tehsil and District Patiala by challenging the mutation of exchange No.486 sanctioned on 23.01.1959 allegedly showing the exchange of half share of 37 bighas by Chamel Singh, Hazara Singh and Hamel Singh sons of Jai Singh and the resultant entries of subsequent jamabandies from 1959-60 to 1999-2000, to be declared as illegal, null and void having no effect on the half share of the plaintiffs in the suit land with consequential relief of permanent injunction restraining defendant Nos.1 to 4 from claiming/continuing partition of the land on the basis of the entries in the jamabandies from 1959-60 to 1999-2000 (Khewat No.112) as well as mandatory injunction directing the State of Punjab to delete wrong entry showing exchange of 1/2 share of 37 bighas, had been dismissed by the trial Court vide judgment and decree dated 25.07.2008 and affirmed by the lower Appellate Court vide judgment and decree dated 21.01.2011. 2. Succinctly, the facts as enumerated from the pleadings of the parties to the suit are that the plaintiffs instituted the suit on the premise that the suit land was jointly owned by Bachan Singh son of Shyam Singh to the extent of half share on one side and Chamel Singh, Hazara Singh, Hamel Singh sons of Jai Singh in equal shares to the extent of half share on the other hand, as per jamabandi for the year 1955-56 situated in the aforementioned village. Bachan Singh son of Shyam Singh, co-sharer, had died and left behind his widow Gurdial Kaur/defendant No.1, Roop Singh defendant No.2, Harpal Singh and Kulwinder Singh/defendant Nos.3 and 4-Grandsons. Chamel Singh, co-sharer also died and left behind two sons, namely, Gurdev Singh and Ishar Singh/plaintiff Nos.8 & 9. Hazara Singh had died and left behind three sons, namely, Gajjan Singh, Labh Singh, Chhaju Singh/plaintiff Nos.1 to 3. Hamel Singh had died and left behind two daughters, namely, Amar Kaur, Jangir Kaur and two sons, Jangir Singh and Raghbir Singh/plaintiff Nos.4 to 7, but the name of Hamel Singh was wrongly written as Chamel Singh. 3. Hazara Singh had died and left behind three sons, namely, Gajjan Singh, Labh Singh, Chhaju Singh/plaintiff Nos.1 to 3. Hamel Singh had died and left behind two daughters, namely, Amar Kaur, Jangir Kaur and two sons, Jangir Singh and Raghbir Singh/plaintiff Nos.4 to 7, but the name of Hamel Singh was wrongly written as Chamel Singh. 3. Bachan Singh co-sharer was in possession of Khasra Nos.252, 253, 254, 255, 256 and 257 measuring 37 bighas. Vide report No.155 dated 20.01.1958 as recorded in the Roznamcha Wakiati of the Patwari Halqa, Bachan co-sharer alone exchanged the said 37 bighas with Gurcharan Singh and Harnek Singh sons of Phuman Singh and in lieu thereof, both Gurcharan and Harnek Singh gave khasra Nos.528(7-4), 529(4-5) measuring 11B-10B, situated in Village Ucha Gaon in exchange to Bachan Singh. Chamel Singh and other set of co-sharers were not party to the exchange, but mutation bearing No.486 was, thus, illegally sanctioned at the behind of the plaintiffs on 23.01.1958 showing the exchange of half share of 37 bighas, therefore, the same was illegal, null and void, much less, nonest and could not effect the right of other set of co-sharers and the successors-in-interest of the plaintiff, who are the plaintiffs and in possession of the suit land. The entry in the jamabandis post mutation was also incorrect and liable to be corrected. The exchange of khasra numbers ibid should have been entered form the share of Bachan Singh/co-sharer in the names of Gurcharan Singh and Harnek Singh in the cultivation column in the joint Khewat. In other words, it was averred that the land could not be taken out of the joint khewat and to reduce the area of the joint khewat from 165B-7B to 139B-17B and then to 132B-12B without any valid reason or taking recourse to legal process as per the procedure prescribed in the Punjab Land Records Manual and Punjab Land Revenue Act. The predecessors-in-interest of the plaintiffs were illiterate and could not detect the such wrong entries and the aforementioned fact about the wrong entries came to the knowledge of successors-in-interest in April/May 2001, when defendant Nos.1 to 4 submitted an application for partition of land measuring 132B-17B and entered into khewat No. 112. The plaintiffs requested the defendants to admit their claim and to get the revenue record corrected, but they refused to do so. The plaintiffs requested the defendants to admit their claim and to get the revenue record corrected, but they refused to do so. It is, in that aspect of the matter, the suit, aforementioned, was filed on 22.08.2001. 4. In response to the aforementioned suit, defendant Nos.2 to 4 filed the written statement by denying the claim of the plaintiffs. It was alleged that Bachan Singh was alive at the time of filing of the suit as he died on 05.05.2003, whereas the present suit was filed in August 2001, despite that he was shown to be dead in the plaint. Defendant No.1-Gurdial Kaur had died on 21.12.2003 and her property was inherited by defendant Nos.3 and 4, who are sons of Roop Singh on the basis of the Will. The defendant No.2 son of Bachan Singh had not inherited any property from Bachan Singh and Gurdial Kaur. The mutation of inheritance of Bachan Singh and Gurdian Kaur was sanctified on the basis of the Will. Gurdial Kaur. stepped into the shoes of her husband-Bachan Singh regarding his half share of Bachan Singh in the suit land after the land of 1/2 share of Bachan Singh was sold to Smt. Gurdial Kaur by Bachan Singh vide sale deed dated 23.02.1970 and mutation bearing No. 550, in this regard, was sanctioned in her favour. Mutation No.486 to be illegal, null and void was emphatically denied. It was averred that the factum of oral exchange and the consequent mutation was very much in the knowledge of predecessors-in-interest of the plaintiffs and even after their death to the knowledge of the plaintiffs, but they failed to take any remedy. The suit was hopelessly barred by law of limitation, therefore, there was no cause of action in favour of the plaintiffs to institute the suit. 5. Defendant Nos.5 to 9 and 10 appeared, but did not file written statement. Thereafter, none appeared and they were proceeded ex parte. 6. Since the parties are at variance, the trial Court framed the following issues:- 1. Whether the plaintiffs No.1 to 3 are co-sharers to the extent of 1/6th share and plaintiffs No.4 to 7 are co-sharers to the extent of 1/6th share and plaintiffs No.8 and 9 are co-sharer to the extent of 1/6th share in the suit property? OPP 2. Whether the plaintiffs are entitled to declaration, as prayed for? OPP 3. Whether the plaintiffs No.1 to 3 are co-sharers to the extent of 1/6th share and plaintiffs No.4 to 7 are co-sharers to the extent of 1/6th share and plaintiffs No.8 and 9 are co-sharer to the extent of 1/6th share in the suit property? OPP 2. Whether the plaintiffs are entitled to declaration, as prayed for? OPP 3. Whether the plaintiffs are entitled to permanent injunction, as prayed for? OPP 4. Whether the plaintiffs are entitled to mandatory injunction, as prayed for? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaintiffs have no cause of action, to file the present suit? OPD 7. Whether the plaintiffs are estopped from filing the suit by their own acts and conduct? OPD 8. Whether the plaintiffs have no locus standi to file the present suit? OPD 9. Whether the suit is not maintainable in the present form? OPD 10. Whether the suit is not properly verified and signed? OPD 11. Whether the suit is bad for mis-joinder of necessary parties? OPP 12. Relief. 7. The plaintiffs in support of their case, examined PW-1 Raghbir Singh, PW-2 Hari Singh, Incharge NSK, PW3 Harbans Singh, Halqa Patwari and brought on record the documents (Ex.P21 and Ex.P22) and on the other hand, defendants examined DW-1 Harpal Singh and closed the evidence after tendering certain documents in evidence. 8. The trial Court on the basis of the preponderance of oral and documentary evidence dismissed the suit and the appeal preferred thereto was also met with the same fate. 9. Mr. Amarjit Markan, learned counsel appearing on behalf of the appellants-plaintiffs in support of the memorandum of appeal raised the following submissions:- (i) In the land measuring 165B-7B, Bachan Singh was having half share, whereas Chamel Singh, Hazara Singh, Hamel Singh sons of Jai Singh were having half share. Bachan Singh could not have exchanged the land measuring 37 bighas of the specific khasra numbers in the absence of the partition with Gurcharan Singh and Harnek Singh and in lieu thereof, got 11B-10B as the said share-holding could not have reduced viz-a-viz half share of remaining share-holders i.e. predecessors-in-interest of plaintiffs. Bachan Singh could not have exchanged the land measuring 37 bighas of the specific khasra numbers in the absence of the partition with Gurcharan Singh and Harnek Singh and in lieu thereof, got 11B-10B as the said share-holding could not have reduced viz-a-viz half share of remaining share-holders i.e. predecessors-in-interest of plaintiffs. (ii) The findings of the lower Appellate Court as well as of the trial Court in not addressing the issues by referring to the revenue record are not sustainable in the eyes of law as there was no evidence on record that the land measuring 37 bighas was berani, whereas the land measuring 11B-10B received in exchange was chahi. (iii) The suit could not have been dismissed on the account of law of limitation as there is no limitation for claiming the right and title in the property. The aforementioned fact was not in the knowledge of the predecessors-in-interest, much less, plaintiffs and cause of action accrued in the month of August 2001. (iv) The finding of lower Appellate Court that land 11B-10B in lieu of exchange of 37 bighas became joint holding, is wholly erroneous and fallacious as one of the co-sharers could not take away the right of other co-sharer in the manner and mode, as indicated above. (v) The revenue entries were not only fraudulent, but was not backed by any cogent reasons of reducing the share-holding of the predecessors-in-interest of the plaintiffs. 10. All these factors have not been noticed by both the Courts below, therefore, there is a gross illegality and perversity, thus, urges this Court for setting aside the concurrent findings, under challenge. 11. On the contrary, Mr. Jagdish Manchanda, learned counsel appearing on behalf of the respondents-defendants submitted that there is no illegality and perversity in the findings rendered by the both the Courts below, for, the Courts below have addressed the issues against the plaintiffs and in favour of the defendants as the factum of mutation and entry in the revenue record was found to be in the knowledge of the plaintiffs and the suit was ex facie barred by law of limitation. It has been proved that the land given in exchange was cultivable and having more value than the one received i.e. 37 bighas, which was uncultivable i.e. barani, therefore, all the co-sharers were put to be in the joint khewat. It has been proved that the land given in exchange was cultivable and having more value than the one received i.e. 37 bighas, which was uncultivable i.e. barani, therefore, all the co-sharers were put to be in the joint khewat. The plaintiffs did not object to the aforementioned exchange. They became co-sharers in the joint khewat as the land of exchange became the part of the khewat. Nothing was retained by the defendants. The plaintiffs admitted the land in exchange came to be in joint khewat. Mutation was also effected in the name of all the persons. It was not a mutation only in favour of Bachan Singh, thus, urges this Court for dismissal of the present regular second appeal by upholding the findings, under challenge. 12. I have heard learned counsel for the parties, appraised the paper-book as well as the record of the Courts below and of the view that there is no merit and force in the submissions of Mr. Markan, for, revenue entries in the jamabandi brought on record shows that mutation was effected long time back in the year 1958 in the joint khewat in view of land received 11B-10B in lieu of land measuring 37 bighas. It was having high potential and more value. Bachan Singh died only in the year 2003 after filing of the suit. The factum of the exchange was in the knowledge of all the aforementioned persons, much less, successors-in-interest i.e. plaintiffs. No explanation has come forth in not challenging the aforementioned findings. 13. The filing of the application for partition would not give a cause of action to the plaintiffs for filing the suit by challenging the exchange as effected in 1958. No sane person cannot be said to have any knowledge with regard to the exchange and mutation. All the persons were in cultivable possession as it was a joint khewat. Ex.P-4 copy of the jambandi for the year 1955-56 recorded the ownership of the land in favour of Bachan Singh, Chamel Singh, Hazara Singh, Hamel Singh, all the co-sharers, Ex.P-5 and Ex.P-6 copies of jamabandi for the year 1959-60 and 1963-64 and thereafter from Ex.P7 to Ex.P-13, copies of jamabandies for the years 1969-70, 1974-75, 1979-80, 1984-85, 1989-90, 1994-95, 1999- 2000, showed the joint khewat. Ex.P14 copy of mutation No.577 dated 21.04.1973 showed that the share of Teja Singh was mutated in favour of Didar Singh on the basis of Will dated 22.10.1972. Similarly, Ex.P-15 copy of mutation No.836 was sanctioned on the basis of the sale deed dated 01.06.1984, whereby Didar Singh had sold land out of suit land in favour of Bhajan Singh etc. All the subsequent mutations with regard to exchanges of the land and also in favour of Gurdial Kaur widow of Bachan Singh were in the knowledge of the plaintiffs. The entries continued in the revenue record. It cannot be believed that exchange was effected at their back and they did not have knowledge. The suit was filed after 43 years of the aforementioned exchange. No contrary evidence has been proved on record to belie the assertion of the defendants that the land received in exchange was having high value and cultivable than the one given in the exchange. The findings recorded by both the Courts below holding the suit to be barred by law of limitation for the fact that it was in the knowledge are perfectly legal and justified, thus, the argument of Mr. Markan has not been able to bring the case within the realm of illegality and perversity or enable this Court to render a different finding than the one arrived at by both the Courts below. 14. No ground is made out for interference, much less, no substantial question of law arises for determination and accordingly, the present regular second appeal is dismissed.