High Court of Punjab and HaryanaRSA/1080/1990dismissed

Pargan Ram v. Ram Murti Etc.

2024-04-18Mr. Justice Vinod S. Bhardwaj29 pages

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PARGAN RAM

RAM MURTI AND OTHERS ' ()'

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Present:

Mr. Amit Jain, Senior Advocate with Mr. Aryaman Thakur, Advocate for the appellant. Ms. Radhika Suri, Senior Advocate with Mr. Sidhant Suri, Advocate for the respondents.

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The present Regular Second Appeal has been filed by the defendant against the judgment and decree dated 26.04.1988 passed by the Sub Judge, Ist Class, Phagwara decreeing the suit No.162 and against subsequent dismissal of the appeal by the Additional District Judge, Kapurthala in Civil Appeal No.37 dated 10.05.1988 vide judgment and decree dated 14.03.1990.

Briefly the facts of the case are that the respondent-plaintiffs filed a suit for permanent injunction for restraining the appellant-defendants from interfering with the possession of the respondent-plaintiffs over the land bearing Khasra No.631 Khata No.182/365 measuring 8 Kanals, claimed to be used as a grave yard by the inhabitants of the village Bhanoki, Tehsil Phagwara and further seeking injunction restraining the appellant-

-2defendant from raising any construction or raising a boundary wall around it. 3.

The case of the respondent-plaintiff is that they are inhabitants of Village Bhanoki, Tehsil Phagwara and that the above said land comprising in Khasra No.631 was being used by the respondent-plaintiffs and other inhabitants of the village as a grave yard since time immemorial and that an entry had wrongly been recorded in the revenue record reflecting the ownership of the land in the Custodian even though the Custodian had no right or interest in the said suit land.

It was further averred that in the Khasra girdawari for the year 1982-83 the area of suit land has been described as 7 Kanals 10 Marlas instead of 8 Kanals and that the appellant-defendant alleged that he had purchased the land from Joginder Singh, Swaran Singh, Ajit Singh and Bakhshish Singh sons of Harnam Singh of village Panchayat Tehsil Phagwara and that the appellantsdefendants had no right since the purported vendors had not been conferred with any title over the suit land. Hence, such a document cannot divest the respondent-plaintiff of their right to retain the possession and occupy the suit land for their use and other purposes. The appellant-defendant started interfering in the peaceful possession of the inhabitants/proprietors of the village on the strength of the said document i.e.

sale deed thus, compelling the respondents-plaintiffs to institute the suit. 4.

The appellant-defendant entered appearance and filed a written statement claiming therein that the respondents-plaintiffs had no right or interest in the suit land and that the said land originally belonged to the Custodian and the same was allotted to Swaran Singh, Joginder Singh, Ajit Singh and Bakhshish Singh sons of Harnam Singh of Village Panchayat, Tehsil Phagwara and that the same was sold to the appellant-defendant by

-3virtue of registered sale deed dated 01.08.1986 (Ex.D-1). It is averred that the grave yard of Village Bhanoki is situated in land comprised of Khasra No.633 (8-0) and 632/8-0, Khata No.493/950/952 as well as land comprising in Khasra No.1354/6-18. Hence, the respondents-plaintiffs had no concern with the suit land nor there was any grave yard or Samadh therein. The land in question vested in the Custodian and was thereafter allotted to Swaran Singh and others who have executed the sale deed conferring the title and possession of the above said land in favour of the appellant-defendant. 5.

Pursuant to the filing of the replication, following issues were framed:-

&' ( 6.

In order to prove their respective cases, the parties lead their respective evidence. The respondent-plaintiff examined as many as eight witnesses to substantiate his case. An equal number of witnesses were examined by the appellant-defendant to substantiate his submissions. 7.

On consideration of the pleadings, testimony of the witnesses as well as the evidence proved on record, the Sub Judge Ist Class, Phagwara decreed the suit on the strength of the oral testimony and by making a reference to various discrepancies/contradictions in the deposition of the

-4witnesses appearing on behalf of the appellant-defendant. It was also recorded in a finding to Issue No.5 pertaining to ownership over the suit land that the letter of allotment in favour of Harnam Singh (predecessor-ininterest of Swaran Singh, Ajit Singh, Joginder Singh and Bakhshish Singh) had not been produced or exhibited on record and that in the absence of the document of title being established there is no linkage as to how and under what circumstances the vendors of the respondent-defendant derived title to alienate the said land in favour of the appellant-defendant. It was also noticed that the land has continuously reflected in the record as Banjar Qadim (Khali) and as such there is no element to suggest that the appellantdefendant had been in possession of the same. While decreeing the suit for permanent injunction, the appellant-defendant was restrained from raising any construction or raise a boundary wall around the suit land or demolishing and removing the pucca built samadh therein or ploughing the suit land except through the process of law. 8.

Aggrieved of the said judgment and decree, the defendantappellant preferred an appeal before the District Judge Kapurthala. The above said Civil Appeal No.37 of 10.05.1988 was dismissed vide judgment and decree dated 14.03.1990, hence the present appeal. 9.

Learned Senior counsel appearing on behalf of the appellantdefendant has vehemently argued that both the courts have failed to appreciate the evidence correctly and have acted on conjectures and surmises in recording a finding to the prejudice of the appellant-defendant. He contends that there is a misreading of the testimony of the witnesses that were led in evidence and that even though it has been recorded by the Sub Judge Ist Class, Phagwara that DW-7 Sarwan Singh i.e. one of the vendors

-5of the appellant-defendant had acknowledged that actual physical possession had not been handed over to the appellant-defendant and that a burial ground existed at the spot, however a complete reading of the testimony of DW-7Sarwan Singh does not suggest the same. There is a specific recital in the cross examination that even though the said witness was residents of different village and had not resided in village Bhanoki, however, the execution of the sale deed as well as handing over of the possession of the land in dispute in favour of the appellant-defendant is admitted by him in the cross-examination. It is further pointed out that the reliance on Ex.PY by the courts i.e.

which is a Khasra Girdawari pertaining to the year 1968-1973 and a reflection of an entry which shows a 'Ghair mumkin-Seve Masan' has been placed by the courts whereas the same was only a stray entry in the Khasra-girdawari which was not corroborated by any mutation. Besides, the said entry did not reflect in the subsequent Khasra-girdawaries as well. Being a stray entry the same needs to be ignored unless special circumstances reflecting the mode and manner in which the entry was recorded in the khasra-girdawari is established on record. 10.

He has also argued that the jamabandi pertaining to the year 1982-83 Ex.PX reflected the ownership of the vendors of the petitioner and he has also placed reliance upon the sale deed executed in his favour on 1.08.1986 (Ex.D1). It is contended that consequent to execution of the sale deed, an application was moved by the appellant-defendant for sanction of mutation in his favour. The said mutation was contested by the respondentplaintiff amongst others and that after such contest, the mutation was sanctioned in favour of the appellant-defendant by the Assistant Collector-Ist Grade vide order dated 25.11.1986 (Ex.D-3).

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Aggrieved of the said order an appeal was preferred by the respondent-plaintiff amongst others before the Collector and vide order dated 13.04.1987 (Ex.D-4) the appeal was dismissed by the Collector. The mutation was challenged no further and it became final. It is also submitted that the Khata Khatoni Ex.D-9 as well as the Khasra girdawaries proved on record from Ex.D-12 and Ex.D-13 pertaining to the year 1983 to 1987 that the land was actually not being utilized as a masan/grave yard. He also makes reference to the jamabandies to contend that the grave yard was actually situated in Khasra No.632 and 633 and that the testimony of the witnesses establishes that Khasra No.631 is adjacent to the said Khasra Numbers which was being used as a grave yard.

A reference is thus, made to the judgment passed by Additional District Judge, Kapurthala wherein he has said that on account of the land being adjacent to said Khasra number there is every possibility that a part of Khasra No.631 was also being used by the residents as a grave yard/burial ground. He contends that such a conjectural hypothesis could not be relied upon by the Additional District Judge for defeating the right that had been vested in favour of the appellantdefendant considering that a report (dakhal) had also been recorded in the roznamcha by the Patwari whereby possession of the land in question was handed over to the appellant-defendant on 15.10.1984 by the vendors of the appellant-defendant.

The said possession was transferred and such transfer of possession is duly acknowledged by DW-7-Swaran Singh while appearing as a defence witness. Attention is also drawn to Ex. D-11 i.e. Jamabandi pertaining to the year 1982-83 where the delivery of possession in favour of the vendors of the appellant-defendant is duly recorded in Column No.12.

-712.

It is further contended that the claim of the respondentsplaintiffs cannot be established since they have neither claimed any ownership rights over the land in question nor they have been able to successfully establish that the land was in actual physical possession and/user occupation of the inhabitants of the village including the respondents-plainttiffs herein. It is argued that for seeking a decree of permanent injunction, the respondent-plaintiff was required to establish the use/occupation and enjoyment of the said property by the beneficiaries seeking injunction against the true owner.

Further, as the title of the appellant-defendant has not been disputed and no declaration against the said sale deed has been sought coupled with the fact that a contested mutation was sanctioned in favour of the appellant-defendant, the respondent-plaintiff would be estopped from raising any challenge to the right of the petitioner to retain possession and occupation of the land in question. Having failed to establish their possession, the suit for permanent injunction in a representative capacity could not be presented by the respondents-plaintiffs and the same could not have been entertained. 13.

Further, argument is advanced by the learned Senior counsel for the appellant-defendant that the locus of the respondents-plaintiffs to institute the suit, (assuming the contention to be correct for the sake of argument and without conceding to the same) would come only in case it is established on record that the land was being used as a burial ground for common purposes. Since the revenue record does not suggest the land having been used for the common purpose as a cremation ground/burial ground and that it was adjoining to the land in Khasra No.632 and 633 that was being used for such purpose, hence, they would not have any right or

-8title even in a representative capacity to maintain a suit in the present form. 14.

It is further argued that along with the suit an application under Order 1 Rule 8 CPC was also moved by the respondents-plaintiffs for instituting proceeding with the suit in a representative capacity and no order was passed on the said application allowing the respondent-plaintiff to pursue the instant suit in a representative capacity. 15.

Responding to the above, learned Senior Counsel for the respondent-plaintiff contends that both the courts have concurrently recorded findings in favour of the respondent-plaintiff and that such a concurrent finding of fact would not ordinarily be interfered with by the High Court while entertaining a Regular Second Appeal. She further contends that the entire claim of the appellant-defendant is based on a sale deed executed in his favour dated 01.08.1986. (Ex.P-1) by the vendors-ininterest who are sons of Harnam Singh. She contends that the letter of allotment by the department of Custodian in favour of Harnam Singh, predecessor-in-interest of the vendors of the respondent-plaintiff has not been brought on record.

Consequently, the sale deed cannot be presumed to have conferred or transferred any right in favour of the appellant-defendant in the absence of the deed of allotment/the conveyance deed having been brought on record. She further submits that after the institution of the suit a Local Commissioner Roshan Lal, Office Kanungo had been appointed to visit the spot and submit his report. He had visited the spot in the presence of the appellant-defendant as well as his counsel and various other respectables of the village had also assembled. The measurement of the site was undertaken by identifying the pucca points along with Khasra Nos. 632 and 633.

-916.

As per the report furnished, in Khasra No.631 there was a water logging over an area of 3 Kanals whereas Muddia/grave had been done in an area measuring 5 Kanals as per his report dated 16.08.1986. She contends that the said report would be per se admissible in view of Order 26 Rule 10 CPC since no objection to the said report had been filed by any of respondents. The factual aspect of the land being used for the said purpose as a grave yard thus, stands established. 17.

It is also vehemently argued by the learned counsel that assuming for the sake of an argument and not conceding to the factual aspect that the appellant-defendant is the owner of the property, yet, it is required that the appellant-defendant proves to be in established actual physical possessin of the land before he can take his possession. The land in question was under the use and occupation of the Gram Panchayat and inhabitants of the village for their common purpose, an appropriate proceedings for seeking possession of the land ought to be instituted. She contends that the matter has remained pending over a period of more than 30 years and at no point of time any suit for seeking possession of the land has been instituted by the appellant-defendant. 18.

She further places reliance on Ex.PY which is the KhasraGirdawari pertaining to the year 1968-1973 wherein an entry has been made to the aspect that the part of Khasra number was being used as a 'ghair mumkin Seve Masan'. It is also argued that the very fact of this land has continuously been reflected as Banjar Qadim and the vendors of the appellant-defendant were residents of village Panchayat and were not in actual physical possession as per the admission by DW-7 Swaran Singh himself, there was no occasion for delivery of any actual physical

-10possession in favour of the appellant-defendant. She further contends that had an actual possession of the land been taken by the appellant-defendant, there was no occasion as to why the land would have continue to reflect as 'Banjar Qadim' even in subsequent Khasra girdawaries. She further contends that the Khasra girdawari at the best may raise a presumption, however, such a presumption is rebuttable and that the testimonies of the plaintiff witnesses clearly establish that the land in question was being used as a burial ground for times immemorial and that by long and continuous usage by the residents of the village, their possession and utilization stands established and that they are entitled to seek injunction even against the appellant-defendant. 19.

She further contends that non recording of a formal order on an application filed under Order 1 Rule 8 CPC would not defeat the institution of the suit and consequent proceedings that have been undertaken by the courts and that the permission to prosecute the suit in a representative capacity would be inherited by in the subsequent conduct and the final adjudication by the courts in favour of the respondent-plaintiff. 20.

In rebuttal, learned counsel for the appellant-defendant submits that report of the Local Commissioner is at best a piece of corroborative evidence and a suit cannot be decreed solely on the strength of a report of the Local Commissioner. It is further submitted that the witnesses who have appeared on behalf of the respondent-plaintiff are closely related and that in their own testimony, they fairly conceded that they had no idea that Khasra Nos. 632, 633 were being used as a cremation ground. Hence, the distinction and demarcation between the respective Khasra numbers was not known to the witnesses appearing on behalf of the respondent-plaintiff. Thus, their

-11testimony cannot be read to establish that Khasra No.631 was infact been used as a cremation ground. He further submits that PW-2-Plaintiff Ram Murti specifically admitted the ignorance about the said Khasra Numbers and their actual utilization. He also contends that the land in question was purchased by the appellant-defendant in the year 1986 and has since then been in litigation. The Khasra Girdawari reflected the land as 'Khali' and that on account of the litigation, he could not put it to a cultivating use. Hence, the same could not be construed as established as proving of fact that the appellant-defendant was not in possession of the land. 21.

I have heard learned counsel for the parties and with their able assistance have perused the record.

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It is further well settled position in law that a concurrent finding of fact recorded by two Courts would not ordinarily be set aside by the High Court unless the findings suffer from illegally, perversity or grossmisappreciation of the evidence adduced in law. Once the conclusions drawn are probable and possible conclusions on a rational and reasonable interpretation of the evidence that is brought on record, such judgment and decree would not be set aside by a High Court in Regular Second Appeal. 38.

I do not find that the judgments of both the Courts suffer from any such illegality, perversity or impropriety and I am of the opinion that the conclusions drawn not a lien to the evidence available on record. 39.

The present appeal is accordingly dismissed." 0A5./11 + *H %6 %!

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