Harcharan v. Jaswant

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Anil Chawla, Advocate, for the appellant Mr. VK Jain, Senior Advocate with Mr. Prashant Vashisth, Advocate, for the respondents L.N. Mittal, J. (Oral) Harcharan Singh defendant has instituted the instant second appeal, having remained unsuccessful in both the courts below. Plaintiffs Jaswant Singh and Rajinder Singh filed suit for permanent injunction alleging that they purchased suit land measuring 1 kanal 3 marlas comprising of khasra no. 38/4 min. being a haveli situated in village Pandori Warraich, Tehsil and District Amritsar as described by boundaries, vide sale deed dated 4.9.1990 from Jhirmal Singh and Hira Singh for Rs 8000/- and since then plaintiffs are owners in possession of the suit property. Demarcation thereof was also obtained on 12.6.1991. However, defendant is owner of 1 kanal land comprised of khasra no. 38/6 Regular Second Appeal No. 3484 of 2008 -2- min. and the defendant has no right, title or interest in the suit property but the defendant was threatening to encroach upon the suit property and to raise construction thereon. So the plaintiffs sought permanent injunction restraining the defendant from encroaching upon the suit property and interfering in lawful possession of the plaintiffs thereon and from interfering in raising construction by the plaintiffs over the suit property. The defendant, interalia, pleaded that he purchased the suit property from Ramesh Kumar vide sale deed dated 29.6.1990. Ramesh Kumar had purchased the suit property from Jhirmal Singh and Chanchal Singh vide sale deed dated 3.10.1975. Inadvertently in the aforesaid sale deeds, khasra number of the suit land was mentioned to be 38/6 but the same has been corrected vide correction deed dated 19.2.1991 executed by Jhirmal Singh and correction deed dated 20.2.1991 executed by Ramesh Kumar and thus, defendant is owner in possession of the suit property. Learned Civil Judge (Junior Division), Amritsar vide judgment and decree dated 21.3.2005 decreed the suit of the plaintiffs. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Amritsar vide judgment dated

11.10.2008. Feeling still aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that sale deed in favour of defendant has since been corrected and sale deed in favour of defendant's vendor has also since been corrected and therefore, defendant is owner of 1 kanal land in khasra no. 38/4 min. However, this Regular Second Appeal No. 3484 of 2008 -3- contention cannot be accepted because Jhirmal Singh had sold land in khasra no. 38/6 to Ramesh Kumar who sold the same to defendant. Thereafter Jhirmal Singh and Hira Singh sold land in khasra no. 38/4 min. to the plaintiffs vide sale deed dated 4.9.1990. The correction deeds were executed by Jhirmal Singh and Ramesh Kumar in February, 1991. The same could not be done at the back of the plaintiffs. Moreover, Jhirmal Singh and Chanchal Singh had both executed sale deed dated 3.10.1975 in favour of Ramesh Kumar. However, correction deed 19.2.1991 was executed by Jhirmal Singh alone and not along with heirs of Chanchal Singh since deceased who was co-vendor with Jhirmal Singh. In addition to the aforesaid defendant's vendor Ramesh Kumar was examined as witness by defendant himself. Ramesh Kumar stated that he never came in possession of land of khasra no. 38/4 nor he delivered possession of land of khasra no. 38/4 to the vendee i.e. to the defendant. On the other hand, Ramesh Kumar stated that khasra no. 38/4 was previously in possession of Jhirmal Singh and now plaintiffs are in possession thereof. Thus, defendant's case is fully demolished by defendant's own vendor and witness. Even Jhirmal Singh DW3 original owner examined by the defendant has demolished whole case of the defendant. Jhirmal Singh has admitted that he had sold 1 kanal 3 marlas land to the plaintiffs. Thus, the plaintiffs are owners in possession of 1 kanal 3 marlas suit land claimed by them. Learned counsel for the appellant also contended that only share in khasra no. 38/4 min. was sold to the plaintiffs by Jhirmal Singh and Hira Singh. However, no such plea was even taken in the written Regular Second Appeal No. 3484 of 2008 -4- statement. On the other hand, in the sale deed the property sold to the plaintiffs has been described by area, khasra number and boundaries. The plaintiffs have claimed the same suit property in the suit as described in the sale deed itself. The suit has also been decreed qua the said property. It may also be noticed that sale in favour of defendant as well as in favour of his vendor was of the land of khasra no. 38/6. The correction deeds of February, 1991 have no effect against the plaintiffs. Consequently, the defendant cannot claim any right, title or interest in the suit property of khasra no. 38/4 min. purchased by the plaintiffs. Learned counsel for the appellant contended that in fact khasra no. 38/4 min. measures 2 kanals 7 marlas and the suit could not have been decreed for entire khasra no. 38/4 min. measuring 2 kanals 7 marlas as the plaintiffs themselves claimed 1 kanal 3 marlas land only. This contention is also misconceived and devoid of merit because the suit has also been decreed only regarding 1 kanal 3 marlas land and the suit property for which the suit has been decreed has also been described by boundaries in addition to area and khasra number. For the reasons mentioned hereinabove, I find no merit in the instant second appeal. There is no perversity or illegality in the concurrent finding of fact recorded by the courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed. January 18, 2010 'tiwana' ( L.N. Mittal ) Judge