Rs.No.2392 of 2014 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2392 of 2014 (O&M) Date of Decision: May 06, 2014 Makhan Singh ..Appellant Versus Dayanand and others ..Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.Vikram Sheoran, Advocate, for the appellant.
Paramjeet Singh, J.
C.M.No.5714-C of 2014 Having heard learned counsel for the appellant and for the reasons indicated in the Civil Misc.
application, the same is allowed.
Delay of 201 days in re-filing the appeal is condoned.
R.S.A.No.2392 of 2014 (O&M) Instant regular second appeal has been preferred by the appellant / plaintiff against the judgment and decree dated 25.10.2010 passed by learned Additional Civil Judge (Senior Division).Bhiwani whereby suit for possession by way of pre-emption filed by the plaintiffs Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 2 has been dismissed, as well as, against the judgment and decree dated 01.05.2013 passed by learned Additional District Judge, Bhiwani, whereby appeal preferred by the appellant/plaintiff has also been dismissed.
For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of fiRs.instance.
The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced.
However, brief facts relevant for disposal of this second appeal are that plaintiffs filed a suit for possession by way of pre-emption along with consequential relief of injunction.
It was alleged in the plaint that plaintiffs are residents of village Seeper, Tehsil Bawani Khera, District Bhiwani and defendant no.2 was having 1/5th share measuring 15 kanals in the suit land.
Defendant no.2 sold his 1/5th share to defendant no.1 for a sum of `6,28,000/- vide registered sale deed dated 10.08.2005.
However, defendant no.2 never issued any notice to the plaintiffs, regarding his intention to sell the land in dispute as per the Punjab Pre-emption Act and the sale was carried out secretly.
It was further averred that the entire land in dispute measuring 75 kanals is being cultivated by the plaintiffs, their brothers Bur Singh, Jiwan Singh as gair maurusi on Batai-Tihai basis prior to sale of land to defendant no.2 and said possession is continuing even after the sale of land.
Defendant no.1 being a stranger, the plaintiffs have right of pre- emption with regard to the land in dispute.
Even in the sale deed dated 10.08.2005, the possession of the plaintiffs and their brothers as `Mazaras' over the land in dispute has been specifically mentioned.
Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 3 Upon notice, defendant no.2 failed to appear and was proceeded against ex parte.
However, defendant no.1 appeared and filed written statement taking preliminary objections regarding locus standi, maintainability etc.On merits, it was averred that land in dispute has been purchased by defendant no.1 for valid sale consideration from defendant no.2.
It was further averred that Mangu Ram, father of defendant no.2, was owner of land measuring 75 kanals and he had filed an ejectment application against Amir Singh, father of the plaintiffs, as per provisions of Punjab Security of Land Tenures Act, 1953, which was allowed on 16.05.1988.
Against that, an appeal was preferred by Amar Singh, father of the plaintiffs, which was dismissed on 26.09.1988.
Revision against the eviction order was filed which was also dismissed on 28.07.1989.
Thereafter, further revision was preferred before the Financial Commissioner, Chandigarh against the eviction orders passed by lower revenue Courts and the same was also dismissed on 14.12.1994.
It has been alleged that w.e.f.16.05.1988 the landlord-tenant relationship between Mangu Ram and Amir Singh ceased to exist and the plaintiffs were no longer in possession of the suit property as gair maurusi on Batai Tihai basis.
It was further alleged that upon death of Amir Singh, plaintiffs and their brothers Bur Singh and Jiwan Singh filed five separate injunction suits against Ram Parkash, which were dismissed.
It was further alleged that execution petition was also filed by Mangu Ram on the basis of eviction order dated 16.05.1988, but the same was filed before the concerned court upon receipt of stay from the Court of Commissioner, Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 4 Hisar.
However, during the pendency of revision before the Financial Commissioner, Haryana, Mangu Ram and Amir Singh both expired.
Upon dismissal of revision by the Financial Commissioner, the legal heirs of Mangu Ram filed execution petition before Assistant Collector 2nd Grade, Bawani Khera in which warrants of possession were issued on 07.08.1996 regarding 75 kanals land against which appeal was filed by the plaintiffs and their brothers before Collector, Bhiwani.
Said appeal was dismissed on 28.04.1997 and in compliance of the warrant of possession issued by Tehsildar, Bawani Khera, Halqa Girdawar and Halqa Patwari went for delivering the possession at the spot on 18.06.1997.
However, the Halqa Kannungo in connivance with plaintiffs and their brothers made false report that plaintiffs did not come to take possession and on the said report, the execution petition was signed by Tehsildar on 7.4.1998.
It was further averred that Bur Singh, elder brother of plaintiffs, who was having possession of khaSr.No.68//7(8-0) 14 min (7-0) North has already given the possession to defendant no.1.
Plaintiffs filed replication controverting the averments made in the written statement and reiterating the averments in the plaint.
On the basis of the pleadings of the parties, the Court of fiRs.instance framed the following issues:- “1) Whether plaintiffs are entitled to a decree from possession by way of redemption as prayed for?.
OPP2 Whether the plaintiffs are entitled to injunction as prayed for?.
OPP3 Whether the plaintiffs suit is not maintainable in the present Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 5 form?.
OPD4 Whether the plaintiff has no locus standi to file the present suit?.
OPD5 Whether the plaintiff has no cause of action to file the present suit?.
OPD6 Relief.”
.
The Court of fiRs.instance after perusal of the evidence led by the parties dismissed the suit vide judgment and decree dated 25.10.2010.
Against that, plaintiff filed an appeal, which has also been dismissed by the lower appellate Court vide judgment and decree dated 01.05.2013.
Hence, this second appeal.
I have heard learned counsel for the appellant and perused the record.
Learned counsel for the appellant has referred to the following substantial questions of law, as formulated in para No.14 of grounds of appeal:- “a) Whether the ld.
Courts below have misread and misinterpreted the law and evidence on record while passing the impugned judgments and decrees?.
b) Whether the plaintiffs are entitled to a decree for possession by way of redemption as prayed for?.
c) Whether the judgments and decrees passed by ld.
Courts below are not based on merit, rather based on presumption, surmises and conjectures and are liable to be set aside?.
d) Whether the impugned judgments and decrees are wrong, illegal, null and void, arbitrary, discriminatory, perveRs.and are liable to be set aside?.
e) Whether the appellant has been caused manifest injustice by Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 6 passing the impugned judgments and decrees?.”.
Learned counsel for the appellant vehemently contended that the findings recorded by both the Courts below are against law and facts on record.
Learned counsel further contended that the trial Court did not correctly appreciate the facts and evidence led by the plaintiffs.
Learned counsel for the appellant has contended that both the Courts below have misread the evidence and findings of both the Courts below are based on surmises and conjectures.
I have considered the contentions raised by learned counsel for the appellant and perused the record.
Admittedly, earlier the predecessor-in-interest of the plaintiffs was tenant under Mangu Ram, father of defendant no.2.
Mangu Ram had filed an ejectment petition against Amir Singh, father of the plaintiffs as per provisions of Punjab Security of Land Tenures Act, 1953, which was allowed and ejectment order was passed on 16.05.1984.
Against that, Amir Singh had filed appeal and thereafter revision, which were dismissed.
Thus, it is clear that ejectment order passed against Amir Singh has attained finality.
Thus, relationship between Mangu Ram and Amir Singh as landlord-tenant ceased to exist and the plaintiffs were no longer in possession of the suit property as gair maurusi on Batai Tihai basis.
Lower appellate Court has recorded a finding that at the time of filing of suit, no relationship of landlord and tenant existed between the plaintiff and defendant no.2, so, the suit of the plaintiffs for possession by way of pre-emption is not maintainable.
Lower appellate Court has also recorded Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document Rs.No.2392 of 2014 (O&M) 7 a finding that predecessor-in-interest of the plaintiffs has already been ejected from the land in dispute and the plaintiffs have no right to retain the possession of the land in dispute.
Concurrent findings of fact have been recorded by both the Courts below.
Learned counsel for the appellant could not show that the said findings are perveRs.or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.
Consequently, said findings of fact do not warrant interference in second appeal.
No question of law, much-less substantial question of law, as alleged, arises for adjudication in this second appeal.
No other point has been urged.
Dismissed in limine.
May 06, 2014 [Paramjeet Singh].vkd Judge Kumar Virender 2014.05.14 17:35 I attest to the accuracy and integrity of this document