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Bhagwan Singh(died) through Lrs and othe v. Gurdev Singh & Anr - RSA-3021-1979 [2006] RD-P&H 11982 (5 December 2006)

RSA No.3021 of 1979 1


RSA No.3021 of 1979

Date of decision:21.11.2006

Bhagwan Singh(died) through Lrs and others ....Appellants


Gurdev Singh and another


Present: Mr. Gautam Dutt, Advocate, for the appellants.


This second appeal has been filed by the defendant-appellants against the decree for possession granted in favour of respondent-plaintiff.

Plaintiff Kaka Singh brought suit for possession of land measuring 15 biswas on the averments that he was owner of the suit land comprising Khasra No.2908/1 in Village Chaunda and defendants had adjoining land in Khasra No.2908. The defendants forcibly dispossessed the plaintiff four-five years ago. The defendants contested the suit denying the ownership of the plaintiff. Following issues were framed:- "1. Whether the defendants have encroached upon the suit land?OPP

2. Whether the plaintiff is entitled to any mesne profits, if so, to what amount? OPP

3. Whether this Court has no jurisdiction to try the suit for mesne profits? OPD

4. Whether the defendants have become owner of the land by way of adverse possession? OPD.

5. Relief." The trial court dismissed the suit as a result of its finding on RSA No.3021 of 1979 2

issue Nos. 1 and 2.

On appeal, an additional issue was framed by the lower appellate court to the following effect:- "Whether the plaintiff is the owner of land in suit?" A report was sought on the additional issue from the trial court. The trial court in its report dated 31.10.1979 held that the plaintiff was not the sole owner of the suit property but was joint owner with the defendants. It was observed:-

"It is the admitted case of both the parties that Kaka Singh had three brothers at the time of Consolidation proceedings. Only five biswas of land has been shown in possession of Kaka Singh out of Khasra number 2908/1.

The remaining 15 biswas of land is in possession of other brothers of the plaintiff. According to Kesho Ram Quanungo (CW.1) who proved his report (Ex.C1) and site plan (Ex.C2), Bhagwan Singh, defendant is in possession of 15 biswas of land out of Khasra number 2908/1 since Consolidation proceedings and he has also installed a bore therein. It appears that excerpt (Ex.RPW1/A) which has been got proved from Jangan Singh, RPW1 does not represent the true state of things. According to this excerpt Khasra number 2908/1 was allotted to Kaka Singh in lieu of Khasra numbers 5059/1081/0-19 and 1082/0-11 in Pati Chhaja. As already stated above, Khasra numbers 2908/1 and 2908 were carved out of killa No.639 during consolidation proceedings and Killa No.639 was made out of khasra numbers 1776 min to 1786 min and 1763 min to 1767 min as per Field book, the copies of which are (Ex.D3 and DK). In these circumstances, the excerpt (Ex.RPW1/A) has not been prepared correctly. Even Jagan Singh Office Qanungo who appeared as RPW1 stated that he did not know whether Killa number 639 was prepared in lieu of khasra number 1764 during consolidation proceedings. He further deposed that he cannot tell so because Taksimi trace prepared during the consolidation proceedings was not available in the record. He admitted that the previous khasra numbers of Khasra numbers 2908 and 2908/1 were 1763min to 1767min and 1776min to 1786min. He further admitted in his cross examination that no part of previous khasra numbers 1081 and 1082 was included in khasra numbers 2908 and 2908/1. Even, this witness stated that land of one Pati cannot be allotted in another Pati. He has also admitted that during Consolidation proceedings killa No.639min (1-0) was made and later on RSA No.3021 of 1979 3

the Consolidation Authorities gave it a new Khasra number 2908/1 during consolidation proceedings. He stated that Khasra number 2908/1 is situated in Chhaja Pati. As already stated above, killa number 639 was carved out of land comprised in Khasra number 1764min and this land was situated in Pati Bhekhe and was jointly owned by Kaka Singh and other brothers according to Jamabandi for the years 2007 and 2008, the copy of which is (Ex.P16).

9. The defendants had examined Narsing Dass Patwari DW-2 who emphatically stated that resolution (Ex.D1) was prepared jointly in respect of the land held by Kaka Singh and others. He further deposed that Khasra numbers 2908 and 2908/1 were carved out of killa number 639 during the consolidation proceedings.

Bhagwan Singh defendant DW-8 emphatically stated that the suit land is jointly held by the parties and previous khasra numbers in respect thereof was 1764 and during consolidation proceedings killa number 639 was made in lieu thereof and out of killa number 639 khasra numbers 2908/3-0 and 2908/1/1-0 were carved out in pursuance of resolution no.316 the copy of which is (Ex.D1).

According to Kesho Ram CW.1 Bhagwan Singh, defendant is in possession of 15 biswas of land out of khasra number 2908/1 since consolidation proceedings.

This also shows that khasra number 2908/1 was not allotted to Kaka Singh; plaintiff alone during consolidation proceedings but it was jointly owned by Kaka Singh and his brothers. It has come on record that khasra number 2908 and 2908/1 were carved out of killa no.639 which was jointly held by Kaka Singh and his brothers in Pati Bhekho. The perusal of excerpt Ex.RPW1/A shows that Kaka Singh and his brothers are in joint possession of khasra number 2908/3-0. It is, therefore, quite clear that khasra number 2908/3-0 and 2908/1/1-0 were carved out of killa number 639 which was jointly owned by Kaka Singh and his brothers. The entries in the Jamabandies Ex.P.8 and P.9 for the years 1968-69 and 73-74 in which Kaka Singh is recorded the sole owner of Khasra number 2908/1 do not represent the correct position. Even, according to the kahsra girdawari (Ex.P.10) the defendants are in possession of the suit land as owners on account of Kami Beshi."

On appeal, the lower appellate court reversed the decree of the trial court and decreed the suit. It was held that Kaka Singh, plaintiff was recorded to be owner in Jamabandi Ex.P.9 for the year 1973-74. He was also recorded in possession of 0.5 of Khasra No.2908/1, while remaining RSA No.3021 of 1979 4

0.15 of Khasra No.2908/1 was recorded in possession of Bhagwan Singh and other defendants as Gair Marusi. To the same effect were the entries in the Jamabandi Ex.P.8 for the year 1968-69, apart from Khasra Girdawari Ex.P.10. The plaintiff had led evidence to establish that the land was allotted to him for the land held by him prior to consolidation which was purchased by the plaintiff vide sale deed Ex.P.18 for which mutation Ex.P.26 was entered in his favour. This was also found mentioned in Hakdarwar, Ex.P.23. Consolidation authorities vide document Ex.P.24 allotted the land. Evidence of Kesho Ram Kanungo, CW-1 was rejected being against the record. The lower appellate court in para 12 of its order noticed that the defendants did not lead any evidence to show that any other land was allotted to the plaintiff in lieu of land which he had purchased and which he held prior to consolidation, while Kaka Singh, plaintiff appearing as PW-3 deposed that he had purchased the land for which the suit land was allotted to him.

At the time of filing of the appeal or thereafter, no steps have been taken for formulating any substantial question of law.

I have heard learned counsel for the appellant and perused the findings recorded by the courts below.

Only contention raised by the learned counsel for the appellant is that the lower appellate court did not take into account the finding of the trial court before reversing the same.

From the finding of the lower appellate court in paras 9 to 14 of its order, it is clear that Kaka Singh, plaintiff was allotted suit land in lieu of land held by him prior to consolidation, which had been purchased by him by registered sale deed and in respect of which mutation was duly entered in his favour. Ownership of the suit land was duly entered in favour of the plaintiff for the land allotted to him after consolidation, which was proved by evidence of the plaintiff, PW-3 Kaka Singh and PW-1 Kesho Ram, Field Kanungo. The defendants failed to prove that the plaintiff had been allotted any other land for the land held by him prior to consolidation.

The lower appellate court has taken into account the finding the trial court. The trial court held that the land was jointly held by the parties prior to consolidation proceedings and, therefore, after consolidation proceedings, the land will be joint. As against this, the lower appellate court RSA No.3021 of 1979 5

found that the plaintiff purchased the suit land vide sale deed Ex.P.18 for which mutation Ex.P.26 was duly sanctioned, incorporating the Jamabandi Ex.P.21 of which value was assessed vide Ex.P.20. In view of this, the finding of the trial court that the land was joint, could not be approved. If the finding of the trial court were to be upheld, the plaintiff will not get any individual land for the land he had purchased.

The finding of the lower Appellate court is, thus, based on evidence oral and documentary.

No substantial question of law arises.

The appeal is dismissed.

November 21, 2006 (Adarsh Kumar Goel)

'gs' Judge


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