Mahender Kumar & Anr. v. Siri Chand & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arvind Mittal, Advocate for the appellants. Mr. Kul Bhushan Sharma, Advocate for respondents no.1 to 3. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendants no.4 and 5, who have been unsuccessful in both the courts below. Suit was filed by respondents no.1 to 3 herein against appellants and proforma respondents no.4 to 6. Plaintiffs alleged in the suit that their father was cultivating the suit land since consolidation of holdings and after the death of their father, the plaintiffs have been cultivating the same as tenants on one-third batai. The plaintiffs are still in possession of the suit land as tenants. However, defendants no.2 and 3 got entered their R. S. A. No. 3748 of 2009 2 names in revenue record in column of cultivation in connivance with revenue officials vide rapat roznamcha dated 25.10.1989. The said rapat has been challenged in the suit. It is also alleged that defendants no.2 and 3 sold the suit land to defendant no.1, who further sold the same to defendants no.4 and 5, who are bent upon to dispossess the plaintiffs from the suit land forcibly and illegally. The plaintiffs challenged the aforesaid sale deed and consequent mutations and also sought permanent injunction. Only defendants no.4 and 5 contested the suit. They inter alia pleaded that they have purchased the suit land from defendant no.1 vide two sale deeds dated 27.10.1997 and 06.11.1997. It is also pleaded that defendants no.2 and 3 purchased the suit land from Lajjawati etc. vide sale deed dated 11.10.1989. Defendants no.2 and 3 thereafter sold the suit land to defendant no.1 vide sale deed dated 16.05.1990, who further sold it to defendants no.4 and 5. It was contended that defendant no.1 was owner in possession of the suit land, when defendants no.4 and 5 purchased it from her and since then defendants no.4 and 5 are in possession of the suit land. Learned Civil Judge (Junior Division), Palwal, vide judgment and decree dated 23.11.2007, decreed the suit declaring rapat roznamcha dated 25.10.1989 to be illegal and holding that plaintiffs are in possession of the suit land as tenants. Permanent injunction restraining the defendants from dispossessing the plaintiffs from suit land except in due course of law has also been granted. However, suit regarding relief of declaration R. S. A. No. 3748 of 2009 3 challenging the sale deeds and mutations has been dismissed. First appeal preferred by defendants no.4 and 5 has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated

02.09.2009. Feeling aggrieved, defendants no.4 and 5 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that vide rapat roznamcha dated 25.10.1989, on spot inspection, defendants no.2 and 3 were found in actual possession of the suit land and therefore, revenue entry was made in their favour in the column of cultivation. It was contended that the said entry was made after issuing notice to the plaintiffs. On the other hand, learned counsel for the plaintiffs/respondents no.1 to 3 pointed out that defendants no.2 and 3, while purchasing suit land vide sale deed dated 11.10.1989 (Ex.DW-4/A), were delivered only symbolical possession of the suit land by their vendors, who were not in actual possession of the suit land and consequently, defendants no.2 and 3 never came in possession of the suit land and therefore, their vendee defendant no.1 or her subsequent vendees i.e. defendants no.4 and 5 never came in possession of the suit land. Learned counsel for the appellants also contended that appellants have installed weigh-bridge and have obtained electric R. S. A. No. 3748 of 2009 4 connection for the same in the suit land in the year 2006 i.e. eight years after the filing of the suit. I have carefully considered the rival contentions. There is concurrent finding of fact by both the courts below after appreciation of evidence that plaintiffs are in possession of the suit land as tenants and rapat roznamcha dated 25.10.1989 is illegal and factually incorrect. The said finding is based on proper appreciation of the evidence and cannot be said to be perverse or illegal so as to call for interference in second appeal. Moreover, case of the appellants is completely demolished by their own document i.e. sale deed dated 11.10.1989 (Ex.DW-4/A). Vide said sale deed, only symbolical possession of the suit land was delivered to defendants no.2 and 3, who had purchased the suit land through the said sale deed. It means that defendants no.2 and 3 did not come in actual possession of the suit land on 11.10.1989 on execution of the sale deed in their favour. It is not explained as to how the defendants no.2 and 3 came in actual possession of the suit land on 25.10.1989 i.e. just two weeks after the sale deed, when rapat roznamcha dated 25.10.1989 was recorded to depict their possession over the suit land. On the other hand, prior to the said rapat dated 25.10.1989, plaintiffs' father was continuously recorded to be in possession of the suit land as tenant. Plaintiffs' father was never ejected or dispossessed from the suit land by anybody nor the plaintiffs were ejected or dispossessed from the suit land in any manner. Consequently, R. S. A. No. 3748 of 2009 5 plaintiffs continued to be in possession of the suit land. The finding recorded by the courts below to this effect is perfectly justified and is well founded supported by cogent reasons and evidence on record. For the reasons recorded herein above, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. May 20, 2010 monika ( L. N. MITTAL ) JUDGE