AT CHANDIGARH v. Partap Singh & Anr.

One of the defendants,namely, Ajit Singh (since deceased and now represented by his legal representatives) preferred this Regular Second Appeal against the judgments and decrees dated 18.1.1999 and 7.6.2002 passed respectively by the Civil Judge (Junior Division), Kapurthala (hereinafter described as `the trial Court') and the Additional District Judge,Kapurthala (referred to hereinafter as `the first appellate Court'). Plaintiff-Partap Singh had filed a suit for permanent injunction seeking to restrain the defendants, i.e., Piara Lal and Ajit Singh, from taking R.S.A.No.3908 of 2002 -2- .... forcible possession of a house measuring 2 kanals and 16 marlas consisting of three rooms, a kitchen, vacant plot with a boundary wall and door installed in it, situated at Harijan Colony, Jalandhar Road, Kapurthala (called hereinafter as `the suit property'). The plaintiff had claimed that he was owner in possession of the suit property for the last about twenty years. It was pleaded that that a sale certificate dated 28.6.1971 was issued qua Nazul land including the suit property by the competent authority and a mutation was also sanctioned in favour of the beneficiaries; that partition proceedings were initiated by the allottees before the Assistant Collector Ist Grade, Kapurthala; that feeling aggrieved by the order of partition, some of the parties to the proceedings including the plaintiff had filed appeals and cross objections before the Collector, Kapurthala which were disposed of vide orders dated 12.10.1982/ 31.3.1983; and that against the orders of the Collector, the various affected parties filed revision petitions before the Commissioner, Jalandhar Division wherein a compromise was arrived at on

15.5.1989 and pursuant to that, land measuring 6 kanals 16 marlas including the suit property was given to the plaintiff because he had constructed a house therein and rapat no.572 dated 20.2.1990 was entered in that regard. The defendants, upon notice, had appeared and contested the suit by filing separate written statements. Defendant no.1 had pleaded that the suit property was situated in khasra no.28//1/2-16, but this number was intentionally withheld by the plaintiff, who was not owner in possession of the same. It was further pleaded that when the partition proceedings took place, the suit property fell to the share of Sher Singh, brother of the R.S.A.No.3908 of 2002 -3- .... plaintiff and out of the same, he had sold 16 marlas of land to Rattan Chand son of Piare Lal vide sale deed dated 20.10.1983 and the remaining area of 2 kanals was alienated by Sher Singh in favour of defendant no.2 vide another sale deed of the same date; that the plaintiff had received compensation for the construction, malba and bricks etc. to the tune of Rs.18000/- vide rapat dated 26.2.1997 and the defendants were put in possession of the suit property. The compromise as pleaded by the plaintiff was denied. Defendant no.2 had also filed his written statement taking the pleas on the similar lines. On the pleadings of the parties, as many as five issues were framed and after appraisal of the evidence on record, the trial Court decreed the suit of the plaintiff. Feeling aggrieved, the defendants filed two separate appeals which were dismissed by the first appellate Court. Hence, this Regular Second appeal. The appellant moved two applications being C.M.Nos. 9668-C of 2002 & 11022-C of 2004 under Order 41 Rule 27 read with Section 151 of the C.P.C. for placing on record copies of orders of the various revenue authorities by way of additional evidence. The plaintiff has opposed the prayer of the appellant by filing a reply to C.M.No.11022-C of 2004. Learned counsel for the appellant has contended that the findings recorded by the Courts below are perverse and erroneous and are liable to be set aside. He further contended that the same are totally R.S.A.No.3908 of 2002 -4- .... contrary to the evidence on record, whereas learned counsel for the plaintiff-respondent has defended the findings contained in the impugned judgments and prayed that the appeal may be dismissed. I have thoughtfully considered the rival contentions and have perused the material on record. As noticed above, the defendants had claimed the suit property on the basis of sale deeds dated 20.10.1983 which were executed during the pendency of the partition proceedings. It is their case that this land had fallen to the share of Sher Singh during the partition proceedings before the Assistant Collector Ist Grade. The Courts below have found, as a matter of fact, that when the appeals were pending before the Commissioner, the parties to the litigation arrived at a compromise and the suit property was given to the plaintiff as he had already constructed a house thereon. The revenue entries were accordingly changed in his favour. Therefore, the sale deeds dated 20.10.1983 cannot be given any legitimate effect. Moreover, the same are shown to have been executed by the attorney of Sher Singh, whose ownership thereon on the date of sale had not been crystalised because of the partition proceedings. It is also in evidence that Sher Singh's legal representatives had settled the matter before the Commissioner on

15.5.1989 and they were parties to the compromise, a copy of which has been placed on the record of this appeal as Annexure P11 and the relevant portion of the same is extracted below:- “Respected Sir – A compromise has been effected between the parties of the case and that the area which was given to Sher R.S.A.No.3908 of 2002 -5- .... Singh, Respondent by the Lower Court, that 6 kanals – 16 marlas comprised in khasra No.28//1 (2-16) and 27//13/1 (4-0). This 6 K-16 M is given toi Partap Singh because Partap Singh has constructed his house on it. Whatever area has been received by Partap Singh, he will give same area to Sher Singh. Expenditure shall be borne by the parties. Decision be given according to his – we shall be grateful.” Accordingly, the appeal of the plaintiff was dismissed as compromised vide order dated 15.5.1989 passed by the Commissioner, Jalandhar Division, Jalandhar, a copy of which has been placed on record as Annexure P12. The sale deeds in favour of the defendants are also hit by the principle of lis pendens as the proceedings for partition of the land between the co-sharers were pending when the same were executed by Sher Singh in the year 1983. Admittedly, the partition proceedings were started in the year 1980. The Courts below were, therefore, right in holding that the sale deeds, even if accepted, were hit by the principle of lis pendens. The compromise stood acted upon before the Commissioner and, therefore, the possession of the plaintiff over the suit property cannot be doubted, more-so when there was clear evidence to that effect. The trial Court had allowed the plaintiff to lead additional evidence to bring on record the proceedings conducted by the Sub Divisional Officer (Civil), Kapurthala which established the factum of delivery of possession qua the suit property in his favour. Exhibit P10 is the testimony to this effect. R.S.A.No.3908 of 2002 -6- .... Consequently, as a cumulative effect of the reasons given above, the findings recorded by the Courts below regarding ownership and possession of the plaintiff over the suit property cannot be held to be erroneous so as to warrant any interference in the Regular Second Appeal, more-so when no substantial question of law has been shown to have arisen for determination by this Court. Accordingly, the instant appeal is held to be without any merit and is dismissed. As a consequence of the above, the applications made by the appellant for permission to lead additional evidence are also dismissed. April 27,2010 “SCM” ( Mahesh Grover ) Judge