Makhan Singh v. Sukhdev Singh

CM stands disposed of. RSA No.3997 of 2008 This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiff- respondent for declaration to the effect that he was the owner in possession of the suit land along with LRs of Gurmit Singh (Baldev Singh, Harbhajan Kaur) and Amrik Singh son of Teja Singh, village Fateh Jalal and for consequential relief of permanent injunction, was decreed. Brief facts of the case as put up by the plaintiff-respondent are that Ram Singh son of Samund Singh was owner of Khasra No.27//14(8-0) who sold the same to Amrik Singh, Gurmit Singh sons of Teja Singh by way of registered sale deed dated 26.3.1959 for a consideration and delivered the possession to them. Thereafter, this Khasra number was bifurcated into Khasra Nos. 26//1/1(2-0) and 27//14/1(6-0). Khasra RSA No.3997 of 2008 (O&M) 2 No.27//14/1(6-0) was incorporated in the names of Amrik Singh and Gurmit Singh on the basis of sale deed in the revenue record but land measuring 2 kanals bearing Khasra No.26/1/1 was shown to be the ownership of Ram Singh due to some clerical mistake but Amrik Singh and Gurmit Singh remained the owners of this land. It was further alleged that Gurmit Singh, one of the vendees, died in the year 1990 leaving behind Harbhajan Kaur widow and Sukhdev Singh and Baldev Singh being his legal heirs. As per the Will executed by him in their favour, mutation was also sanctioned on the aforesaid basis. It was further alleged that due to this aforesaid clerical mistake regarding the ownership bearing Khasra No.26/1/1(2-0), the defendant being son of Ram Singh threatened to alienate the suit property claiming his ownership. Hence, the present suit. The suit was contested by the defendant submitting therein that there was nothing on record that there was a change of Khasra numbers in the revenue record. However, it was admitted that Ram Singh sold the land to Amrik Singh and Gurmit Singh including khasra No.27/14/1(8-0). It was alleged that the sale deed was rightly incorporated in the revenue record and the defendant was rightly shown as owner of the disputed property. It was denied that there was any clerical mistake. It was further denied that Ram Singh had ever executed any Will in favour of Harbhajan Kaur, Sukhdev Singh and Baldev Singh. Other pleaded facts were denied and prayer for dismissal of the suit was made. After hearing learned counsel for the parties, the trial Court dismissed the suit. Feeling aggrieved with the impugned judgment and decree the plaintiff filed an appeal. The Lower Appellate Court vide impugned judgment and decree dated 8.5.2008 accepted the appeal and the suit of the plaintiff-respondent for declaration to the effect that he was owner in RSA No.3997 of 2008 (O&M) 3 possession of the land bearing Khasra No. 26//1/1(2-0), Khewat No.188, Khatuni No.265 along with Baldev Singh, Harbhajan Kaur and Amrik Singh son of Teja Singh village Fateh Jalal with consequential relief of permanent injunction, was decreed. While accepting the appeal, the Lower Appellate Court observed as under: “17. Though there is admission on the part of the defendant/respondent when he appeared in the witness box as DW1 regarding bifurcation of the khasra No.27/14(8-0) into Khasra Nos.27//14/1(6-0) and 26//1/1 (2-0) even though the plaintiff/appellant has proved it no the file by placing on record the consolidation proceeding in which Ram Singh has been shown as owner of Khasra No.27/14(8-0) which was bifurcated into Khasra No.27//14/1(6-0) and 26//1/1(2-0), the application filed by the plaintiff/appellant for additional evidence deserves to succeed because by way of this evidence, the plaintiff-appellant only wants to place on record the consolidation proceedings which are perse admissible in evidence and no prejudice will be caused to the defendant/respondent. Nothing has been brought on the record by the defendant/respondent that he is owner of the Khasra No.26//1/1(2-0) when admittedly his father has sold it to the plaintiff/appellant. Therefore, the plaintiff/appellant is entitled to the declaration of ownership and the learned lower court has committed an error by deciding this issue against the plaintiff/appellant and in favor of the defendant/respondent. Therefore, the RSA No.3997 of 2008 (O&M) 4 findings of the learned lower court on this issue are reversed.

18. As regards the limitation of filing the suit is concerned, though the sale deed was executed by the father of the defendant/respondent in the year 1959 but cause of action arose only when there is cloud to his title and it has been pleaded by the plaintiff/appellant that the defendant/respondent has threatened to alienate the same two days before the filing of the suit. Moreover, there is no limitation to file the suit for declaration on the basis of title and as such the learned lower court has rightly came to the conclusion that the suit is within limitation.” Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendant has filed the present appeal. Learned counsel for the appellant has vehemently argued that the judgment and decree of the Lower Appellate Court is contrary to the record as there was no evidence that Khasra No.27//14(8-0) was bifurcated into Khasra Nos. 26//1/1(2-0) and 27//14/1 (6-0) and thus, the following substantial question of law arises in this appeal: “Whether judgment and decree dated 28.2.2006 passed by the learned Civil Judge (Sr. Division), Jalandhar and judgment and decree dated 8.5.2008 passed by the learned Additional District Judge, Jalandhar are against law and facts and have been passed contrary to the evidence on record?” I have heard learned counsel for the appellant and perused the impugned judgment and decree. RSA No.3997 of 2008 (O&M) 5 Execution of the sale deed dated 26.3.1959 is not in dispute. In his pleadings, the appellant has admitted that Ram Singh son of Samund Singh sold the land including Khasra No.No.27//14/1(8-0) in favour of Amrik Singh and Gurmit Singh by way of sale deed dated

26.3.1959. While appearing as DW-1, he has also admitted that Khasra number sold by his father to Amrik Singh and Gurmit Singh was bifurcated into Khasra Nos.26//1/1(2-0) and 27//14/1(6-0). It was also admitted that his father was shown as owner of 2 kanals of land in the revenue record but vendees were in possession of the entire land measuring 8 kanals purchased by them since the date of purchase. He also admitted that after the death of Gurmit Singh, his widow Harbhajan Kaur and his sons were the legal heirs. Not only this, by way of additional evidence, before the Lower Appellate Court which was allowed, the plaintiff-respondent also placed on record the consolidation proceedings in which Ram Singh was shown as owner in Khasra No.27//14(8-0) which was bifurcated into Khasra No.27//14/1(6-0) and 26//1/1(2-0). The appellant has not brought on record any evidence to prove that he was owner of Khasra No.26//1/1/(2-0). Thus, in view of the aforesaid admission of the appellant and revenue record, no fault can be found with the findings recorded by the Lower Appellate Court in favour of plaintiff-respondent. Faced with this situation, learned counsel for the appellant submitted that the sale deed was executed in the year 1959 whereas the present suit was filed in the year 1990 and therefore, at such a belated stage, the plaintiff is not entitled to the relief claimed. It may be noticed that a specific issue was raised by the appellant with regard to limitation of the suit filed by the plaintiff-respondent. However, the aforesaid issue was decided against the appellant by the trial Court. No cross-appeal/cross- objections were filed by the appellant against the aforesaid findings of the RSA No.3997 of 2008 (O&M) 6 trial Court. Leaving apart the technicalities, it may be seen that it is well settled that cause of action could have arisen only when the title of the plaintiff-respondent came under cloud only when he was dispossessed from the suit land. In Manti and others v. Sarvati Devi and others 2004 (1) CCC 233, it has been held that right to sue accrues when real threat to the title is apprehended . Thus, the suit of the plaintiff-respondent was well within limitation. No other point was raised. No substantial question of law arises in this appeal. Dismissed. February 22, 2010 (RAKESH KUMAR GARG) JUDGE