Judgment:
R.L. Anand, J.
1. Sarvshri Pal Singh, Apar Singh, Bhajan Singh, Dilbagh Singh, Jagir Singh, Kashmir Singh and Lakha Singh i.e. plaintiffs No. 1 to 7 in the trial Court have filed the present Regular Second Appeal and it has been directed against the Judgment and decree dated 8.5.1987 passed by the Court of Additional District Judge, Amritsar, who affirmed the judgment and decree passed by the Court of-Sub Judge IInd Class, Ajnala dated 31.10.1983 vide which the suit of the present plaintiffs for declaration and injunction was partly decreed holding that plaintiffs were the joint owners/co-sharers of the land to the extent of 42 Kanals 7 marlas being 1/15th share of the land measuring 642 Kanals 9 marlas and they are in possession of the land comprised in Khasra Nos. 51/6, 7, 8/1, 14, 15, 16 and 25 measuring 53 kanals 2 marlas. The defendants were also restrained from dispossessing the plaintiffs from this area of land measuring 53 kanals 2 marlas referred to above forcibly or illegally.
2. The brief facts of the case are that the present appellant-plaintiffs filed a suit for declaration to the effect that they are owners and in possession of the land measuring 160 kanals 6 marlas fully described in the head-note of the plaint as per jamabandi for the year 1977-78 situated in village Mudh Bhilowal, Tehsil Ajnala, District Amritsar with consequential relief of permanent injunction restraining defendants No. 1 to 10 namely Smt. Uma Mehta, Raj Karni Vohra, Rajan Vohra, Bhumeshwar Rai Mehta, Rajiv Rai Mehta, Kanwar Rai Mehta, Surinder Mohan Mehta, Sahil Mehta and Joginder Pal Mehta from interfering in the lawful possession of the plaintiff over the suit land and the case set up by the plaintiffs was that they are in possession of the suit land for the last more than 20 years. Previously, they were tenants under Amir Chand son of Mathura Dass of village Mudh Bhilowal, Tehsil Ajnala, District Amritsar. Said Amir Chand died on 31.12.1976. Thereafter the plaintiffs purchased the suit land vide two registered sale deeds dated 24.7.1980 from Labh Chand and Iqbal Chand sons of Amir Chand, who were the only heirs of Amir Chand by virtue of a will. After the purchase of the suit land the plaintiffs are in possession of the same as owners. Defendants No. 1 to 7 alleged to have purchased the suit land from defendants No. 8 to 10 but the sale deed, if any, in their favour, is illegal, ineffective and against the rights of the plaintiffs. The plaintiffs were not bound by the sale deed allegedly executed by defendants No. 1 to 7 in favour of defendants No. 8 to 10.
3. Notice of the suit was given to the defendants. Defendants No. 1 and 4 to 10 appeared and contested the suit and they have filed the written statement pleading that the suit of the plaintiffs was not maintainable; that the plaintiffs had no cause of action; that the plaintiffs had no locus standi to file the suit; that the present suit was barred by principles of res judicata and that the plaintiffs were estopped by their own acts and conduct from filing the present suit. It was further pleaded by the defendants that defendants No. 2 and 3 purchased some of the suit land from Garib Dass, a co-sharer but that land was in possession of Surinder Mohan defendant No. 1. Defendants No. 4 to 7 had purchased 41 Kanals 1 marlas of land from Joginder Pal and Rai Sahib Mehta vide sale deed dated 8.8.1980 and they had also purchased 57 kanals 6 marlas of land from Joginder Pal and Rai Sahib Mehta for Rs. 32,500/- vide another sale deed dated 8.8.1980. Surinder Mohan defendant No. 1 had sold this share to defendant No. 1 but he all alone had been in possession of the land. The plaintiffs have no right, whatsoever, in that land. It was pleaded that earlier litigation was going on between the parties and it was held that the plaintiffs were not in possession of the suit land and for that reason their suits were dismissed.
4. The plaintiffs filed replication to the written statement filed by defendants, in which they reiterated their allegations made in the plaint by denying those of the written statement and from the pleadings of the parties the learned trial Court framed the following issues:-
1) Whether the suit is not maintainable in the present form? OPD
2) Whether the plaintiffs have got no cause of action? OPD
3) Whether the suit is barred by principles of resjudicata? OPD
4) Whether the plaintiffs have got no locus-standi to file the present suit? OPD
5) Whether the plaintiffs are estopped by their act and conducts to file the suit OPD
6) Whether the plaintiffs are entitled to the declaration and injunction prayed for OPP
7. Relief.
5. The parties led evidence in support of their case and on the conclusion of the trial it was held by the trial Court that the plaintiffs have been able to prove their ownership to the extent of 42 kanals 7 marlas of land being 1/15th share of the land measuring 642 kanals 9 marlas and they derive a good title to this extent only and not to the extent of 160 kanals 6 marlas as claimed in the suit. It was also held by the trial Court that in addition to this, the plaintiffs are in possession of 53 kanals 2 marlas of land comprised in khasra numbers referred in the earlier part of this judgment and they cannot be dispossessed from this area of 53 kanals 2 malas except in due course of law.
6. The plaintiffs were not satisfied with the judgment and decree of the trial Court dated 31.10.1983 and they filed first appeal in the court of Additional District Judge, Amritsar, who again affirmed the finding of the trial Court vide judgment and decree dated 8.5.1987. The plaintiffs were not still satisfied with the judgments given by the Courts below; hence the present appeal, which has been disposed of with the assistance of Shri B.R. Mahajan, Advocate, appearing on behalf of the appellants and Mr. Suvir Sehgal, Advocate, who gave appearance on behalf of the respondents and I have gone through the record of this case with their assistance.
7. The learned counsel for the appellants has assailed the judgments and decrees of the Courts below on two scores. He submitted that it has not been proved on the record as held by the Courts below that the total holding was 642 kanals 9 marlas, rather the total holding of all the five co-sharers including Amri Chand was more than 1000 kanals. The learned counsel submitted that if this was the total holding, then Sarveshri Labh Chand and Iqbal Singh sons of Amir Chand aforesaid were competent to sell the area measuring 160 kanals 6 marlas which is the subject-matter of the present suit and it is established by virtue of sale deeds Ex. P. 1 and P.2 through which this area was sold to the plaintiffs by the sons of Amir Chand. In support of his contention, learned counsel for the appellant has drawn the attention of this Court to the statement of defendant Suridner Mohan who appeared as D.W.1 where he has stated that the total area of all the co-sharers in all the villages was about 1000 killas. The learned counsel stated that since there was a joint khata of all the co-sharers and the land by meets and bounds had not been partitioned situated in different villages, therefore, the sons of Amir Chand were competent to sell the suit area subject to their rights which can be adjudicated in the partition proceedings before the revenue authorities.
8. On the contrary it was submitted by the learned counsel for the respondents that the statement of Surinder Mohan relied upon by the opposite party is groundless because this is against the documentary evidence Ex. P.4, the Jamabandi for the year 1977-78 from which it is evident that the total holding of the co-sharers was 642 kanals 9 marlas and Amir Chand had 1/15th share and in this manner the area falls to his share was 42 kanals 7 marlas only and the legal heirs of Amir Chand were not competent to sell 160 kanals and 6 marlas as claimed by the plaintiffs. The submission which were raised by the learned counsel for the appellants are devoid of any merit because a perusal of statement of Surinder Mohan shows that he was not definite about the total area of the joint co-sharers. If his statement is read as a whole, he has stated that he does not remember the area of land owned by the co-sharers in the 12 villages separately. Even if, it is assumed for the sake of argument that Surinder Mohan has stated in his cross-examination that the total area of all the co-sharers in all the villages was about 1000 killas, this admission has been proved to be. erroneous in the light of jamabandi for the year 1976-77. Thirdly, it is not the case pleaded by the plaintiffs that all the co-sharers including Amir Chand had more than 1000 killas of land in different villages. So far as the position of law is concerned, it is well settled that no person can pass a better title than one he himself possesses. If the share of Amir Chand was only to the extent of 42 kanals and 7 marlas, his heirs could not pass the title with regard to 160 kanals and 6 marlas as claimed by the plaintiffs. It was for the plaintiffs to establish their own case independently and they could not take the benefit of the weakness of the defence. Shri Mahajan of course, submitted that the defendants had not taken any specific plea in their written statement to the effect that Amri Chand would not sell more than 42 kanals 7 marlas of land and for that reason, the plaintiffs could not establish that the legal heirs of Amri Chand were the owners to the extent of 160 kanals 6 marlas. The submission of Shri Mahajan does not appeal to reason because his clients were supposed to prove that their vendor had a valid title with regard to the area purchased by them. In this view of the matter, I hold that both the Courts below rightly came to the conclusion that the plaintiffs have become the joint owners to the extent of 42 kanals and 7 marlas being 1/15th share out of the total holding of 642 kanals 9 marlas.
9. The next argument which was raised by Shri Mahajan was that the Courts below had given an erroneous finding that the plaintiffs were in possession to the extent of 53 kanals 2 marlas of land in addition to the one of 42 kanals 7 marlas of land. Rather, it is proved as per record that the plaintiffs were also in possession of three more khasra numbers i.e. 64/2/3, 64/3 and 64/4 the area of which is 19 kanals 4 marlas. Mr. Mahajan submitted that this area should also be included and the appellant-plaintiffs ought to have been granted injunction against the defendants restraining them that they would not interfere in the possession of the plaintiffs with respect to these khasra numbers also and that the plaintiffs could not be dispossessed from this area also except in due course of law. In support of his contention Shri Mahajan has drawn my attention to the certified copy of the judgment Ex. D.2 dated 28.10.1978 by which Apar Singh and Dilbagh Singh who are also present plaintiffs filed a suit for injunction against the present defendants. This aspect of the case in my opinion has not been rightly appreciated by the learned counsel appearing on behalf of the appellant. Ex. D.2 has originated from Ex. D.1 which is the copy of the judgment delivered by the court of Shri H.R. Noria, Sub Judge 1st Class, Amritsar. In this suit two khasra numbers i.e. khasra Nos. 51/17 and 52/20 were included when the plaintiffs filed the suit for permanent injunction. Their suit at the initial stage was decreed but in appeal with respect to these two khasra numbers i.e. 51/17 and 52/20 was dismissed. Three khasra numbers regarding which reference was made by Shri Mahajan, again proceedings started in the revenue courts for the correction of khasra girdawari. As per the orders of the revenue authorities, dated 17.11.1980 passed by Assistant Collector IInd Grade, Ajnala confirmed by the Collector, Ajnala on 6.6.1981 would show that with respect to these three khasra numbers, it was held that defendants were in possession. Learned counsel from the respondents drew my attention that the orders of the Collector were challenged even before the Commissioner who dismissed the appeal of the appellants holding that with regard to these three khasra numbers, the plaintiffs were not in possession. In this situation, it is not open to the clients of Shri Mahajan to allege that their possession with regard to the above said three khasra numbers should also be protected by the Civil Court. Shri Mahajan, however, submitted that the finding of the revenue authorities cannot supersede the findings of the Civil-Court which have independently come to the conclusion that plaintiff-appellants were in possession of these three khasra numbers. The submission of Mr. Mahajan may look alluring but on deeper scrutiny it is devoid of any merit. The order passed by the revenue authorities was subsequent to the institution of the suit and the revenue authorities were satisfied with regard to the actual position and that is the reason the order of the Collector II Grade was challenged by the appellants before the Collector and thereafter the Commissioner (Appeals) who vide order dated 29.1.1995 dismissed the appeal arising from the order dated 2.6.1981. In the light of the above, the second submission of Shri Mahajan also does not hold any water.
10. No other point was urged before me.
11. In the light of the above discussion, I do not see any merit in the appeal which is hereby dismissed leaving the parties to bear their own costs.