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2014 Supreme(P&H) 1503
PUNJAB & HARYANA HIGH COURT
Raj Mohan Singh, J.
Yasin Khan and Ors. - Appellant
Versus
Ghiasuddin and Ors. - Respondent
R.S.A. No. 776 of 1988
Decided On : 17-12-2014
For the Respondents:Ankita Sambyal, Advocate for Nitin Sarin, Advocate
The main legal point established in the judgment is that a civil court decree obtained by co-sharers is deemed to involve the entire share of the unit, and the plea of adverse possession must be supported by material on record and foundation in the written statement.
Headnote:
Civil Court Decree - Ownership Rights - Punjab Village Common Land Act, 1961 - Sections 2(g) - Jamabandi for the year 1939-40 - Summary of Acts and Sections: The court discussed the relevance of the jamabandi for the year 1939-40 and the entitlement of the parties in total shamlat land as shown in the jamabandi. The court also considered the ownership rights claimed by the defendants based on a civil court decree and the applicability of the Punjab Village Common Land Act, 1961, particularly Section 2(g). The judgment emphasized the concept of co-sharership and the rights of co-sharers in possession, as well as the plea of adverse possession raised by the defendants.
Fact of the Case:
The plaintiffs filed suit for declaration and joint possession, claiming ownership in possession of the suit land. The defendants contested the suit, asserting their ownership based on a civil court decree and the Punjab Village Common Land Act, 1961. The trial court dismissed the suit, but the appellate court decreed the suit in favor of the plaintiffs.
Finding of the Court:
The court found that the defendants had no subsisting right over and above their entitlement in the land obtained by them through a civil court decree. The court also dismissed the plea of adverse possession raised by the defendants.
Issues: The issues included ownership rights based on a civil court decree, entitlement of co-sharers in total shamlat land, possession of co-sharers, and the plea of adverse possession.
Ratio Decidendi: The court held that the civil court decree obtained by the defendants was deemed to involve the entire share of the unit as per the jamabandi for the year 1939-40, and the non-applicant therein would also derive the same title as applicable in favor of the plaintiffs of that suit.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
1. Defendants are in second appeal against the judgment and decree dated 16.1.1988 passed by Learned Additional District Judge, whereby the judgment and decree dated 5.8.1986 passed by learned Sub Judge, Faridabad, dismissing the suit, has been set aside and the suit has been decreed in appeal. Brief facts of the case are that the plaintiffs filed suit for declaration and joint possession to the effect that they are owner in possession of the suit land according to the shares as mentioned in para No. 1 of the plaint. Plaintiffs submitted that according to jamabandi for the year 1939-40, Suleman Khan, Sultan Khan and Mehmood, predecessor-in-interest of the plaintiffs, were owners in possession of 1/3rd share in the land and defendants were owners of 2/3 rd share of the said land, which at the relevant time bore khewat No. 80 Khatauni No. 190-193 and Khasra No. 61, 62, 271, 65 and 168. Consolidation took place in the village in the year 1950-51 and Panchayat deh came to be recorded as owner of the suit land in the revenue record.
2. On 26.2.1969, defendants filed suit against the gram sabha claiming that they are co-sharers in possession since 1939-40 and the area under their ownership and possession should be excluded from being vested in Panchayat as shamlat deh. The said suit was decreed on 7.3.1970 and the land measuring 104 kanals 15 marla out of the total shamlat land measuring 314 kanals 1 marla was brought out from the purview of vesting and mutation No. 740 was also sanctioned on 13.6.1972.
3. It has also been alleged that since Sulekhan etc., predecessor-in-interest of the plaintiffs were also co-sharers in possession of the shamlat land with the defendants, they automatically became co-sharers in the land so brought out from the purview of vesting in panchayat as shamlat deh by the dint of aforesaid civil court decree and, therefore, the plaintiffs are also entitled to 1/3rd share of the land in question.
4. The suit was contested by the defendants on all possible fronts viz. maintainability, non-joinder of necessary parties, estoppel, res judicata and Order 2 Rule 2 CPC etc. The defendants alleged that the plaintiffs have nothing to do with the land in question and they projected larger connotation in terms of co-sharership in the entire shamlat land of which they claimed themselves to be co-sharers in their own right, irrespective of unit arising of common ancestor, namely, Maglu. Defendants asserted that the land was allotted only to the defendants by the dint of aforesaid Civil Court decree and the mutation was rightly sanctioned in their favour and the plaintiffs have no share in the property in question.
5. Replication was also filed by the plaintiffs and on the pleadings of the parties, learned trial Court framed the following issues:-
1. Whether the plaintiffs are owners in possession of the suit land according to the shares mentioned in para No. 1 of the plaint? OPP
2. Whether the defendants have wrongly been shown as owners of 104 kanals 15 marlas instead of 80 kanals, if so to what effect? OPP
3. Whether the plaintiffs have no locus standi to file the suit? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiffs have no cause of action to file the suit? OPD
6. Whether the suit is time barred? OPD
7. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
8. Whether the plaintiffs are estopped from filing the suit? OPD
9. Whether the suit is barred by the principles of res judicata and under Order 2 Rule 2 CPC? OPD
10. Whether the suit is not properly valued? OPD
11. Whether the suit is false and frivolous? OPD
12. Relief.
6. Both the parties led evidence before the learned trial Court. Under Issues No. 1 and 2, the trial Court took cognizance on Ex. P-5 i.e., jamabandi for the year 1939-40 showing Suleman Khan, Sultan Khan and Mahmood Khan, sons of Shadi Khan to be in possession of 1/3rd share in the land shown in the jamabandi forming khasr
