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2011 (4) RCR(Civ) 72
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
L.N. Mittal, J.
Mange and another - Appellants
Versus
Ramesh and others - Respondents
Regular Second Appeal No. 2085 of 2009
Decided on: May 20, 2011
Plaintiffs - Ownership Dispute - Punjab Land Revenue Act, 1887, Section 45 - The court declared the plaintiffs as owners in possession of 18 kanals 19 marlas land out of 88 kanals 4 marlas land. The court declined the relief regarding mandatory injunction directing defendants to correct the revenue entries as the jurisdiction of the civil court to give any such direction is barred under section 158(2)(vi) of the Act.
Fact of the Case:
Plaintiffs Mange and his son Jai Kishan claimed ownership of specific portions of a joint land. They sought declaration of their ownership and correction of revenue entries.
Finding of the Court:
The court found that the plaintiffs were owners in possession of the claimed land based on documentary evidence and mutation records. The court also held that the civil court had jurisdiction to adjudicate the suit regarding declaration of rights of the plaintiffs in the suit land.
Issues: Ownership dispute, jurisdiction of civil court, res judicata, limitation
Ratio Decidendi: The court held that the civil court had jurisdiction to adjudicate the suit regarding declaration of rights of the plaintiffs in the suit land, despite the jurisdictional limitation to order correction of revenue entries. The court also ruled that the suit was not barred by res judicata or limitation.
Final Decision: The court allowed the second appeal, set aside the lower appellate court's judgment, and decreed the plaintiffs' suit declaring them as owners in possession of specific portions of the joint land.
L.N. Mittal, J. - Plaintiffs Mange and his son Jai Kishan who were successful in the trial court but have been non-suited by the lower appellate court are in second appeal.
2. Plaintiffs-appellants filed suit alleging that plaintiff no. 1 is owner of 14 kanals 14 marlas land being 1/6th share of 88 kanals 4 marlas and plaintiff no. 2 is owner of 4 kanals 5 marlas land out of the aforesaid joint land. It was pleaded that as per jamabandi for 1967-68, plaintiff no. 1 is owner of 14 kanals 14 marlas land and Dei Chand and Desh Raj also had share of 14 kanals 14 marlas each in the aforesaid land whereas Shoe Nath had 44 kanals 2 marlas land being half share of the aforesaid joint land. Inheritance mutation nos. 1166, 1167 and 1178 regarding shares of Dei Chand, Desh Raj and Shoe Nath were sanctioned. After preparation of subsequent jamabandies mutation no. 1179 was sanctioned wherein error regarding shares of different co-sharers was committed. Share of Amar Singh (father of Ramesh defendant no. 10) and of Hari Chand was wrongly depicted as 2/3rd instead of 3/5th share. Plaintiff no. 2 also purchased 4 kanals 5 marlas land from Amar Singh aforesaid. Thus, total share of plaintiffs comes to 18 kanals 19 marlas but in the revenue record they have been depicted to be owners of 16 kanals 8 marlas. Accordingly, the plaintiffs sought declaration that they are owners in possession of 18 kanals 19 marlas land. They also sought direction to defendants no. 11 and 12, State of Haryana and Patwari to correct the revenue entries.
3. Defendants no. 1 and 4 filed written statement which was also adopted by defendants no. 2 and 3. They pleaded that they did not get any excess share.
4. Defendants no. 9 and 10 also contested the suit and broadly controverted the plaint averments. It was pleaded that the mutation in revenue entries cannot be challenged at this stage. It was also pleaded that the revenue entries are correct and shares of different co-sharers have been correctly depicted therein. It was also pleaded that the suit is barred by res judicata and Order 2 Rule 2 of the Code of Civil Procedure (in short, CPC). Suit was also pleaded to be barred by limitation. Various other pleas were also raised.
Defendants no. 11 and 12 also contested the suit and tried to justify the revenue entries.
5. Learned Additional Civil Judge (Senior Division), Gohana vide judgment and decree dated 28.11.2008 decreed the plaintiffs' suit. However, first appeal preferred by defendant no. 10-Ramesh has been allowed by learned Additional District Judge, Sonepat vide judgment and decree dated 10.4.2009 and thereby suit filed by the plaintiffs has been dismissed. Feeling aggrieved, plaintiffs have filed the instant second appeal.
6. I have heard learned counsel for the parties and perused the case file.
7. From the documentary evidence on record, it has been proved that plaintiff no. 1 has share of 14 kanals 14 marlas in the joint land in question as is also evident from the jamabandi for 1967-68. It is also evident from mutation 1953 Ex. P15 that Jai Kishan plaintiff no. 2 purchased 4 kanals 5 marlas land from Amar Singh father and predecessor of defendant no. 10-Ramesh. Consequently, plaintiffs are proved to be owners of the suit land to the extent claimed by them.
8. On 5.10.2010, counsel for respondent no. 1 (defendant no. 10), inter alia, contended that according to plaint averments, Amar Singh transferred land in excess of his share and, therefore, last transferee of Amar Singh has to suffer. On 6.4.2011, counsel for appellant responded to the said contention by submitting that vide mutation no. 2024 Ex. P16, Ramesh defendant no. 10/respondent no. 1 himself got land from his father Amar Singh by way of release deed dated 21.12.2005 and therefore, he is last transferee. Learned counsel for respondent no. 1, however, contended that other transferees of Amar Singh have not been made party to the suit to determine as to who has to suffer on account of trans
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