Judgment:
B. Rai, J.
1. This Regular Second Appeal has been directed against the judgment and decree, dated March 3, 1979 of the Court of learned Additional District Judge, Ludhiana, of affirmance of the judgment and decree dated April 26, 1978 of the trial Court.
2. Facts are that Harjinder Singh filed a suit for declaration to the effect that he is in continuous possession as owner of the house measuring 1 Kanal 7 Marias comprising in Khasra No. 654 as entered in Jamabandi for the year 1967-68 situated in Sawaddi Khas, Tehsil Jagraon shown in red colour in the plan attached and fully described in the head note of the plaint. It was alleged by him that according to the revenue record Khasra No. 654 is joint ownership of the plaintiff along with his brothers. However, he alone is in exclusive possession of the same for the last 19 years. He further pleaded that Gurnam Singh, Parmatma Singh and Jasmel Singh are his real brothers. They are in possession of another plot belonging to the parties. According to Harjinder Singh, he himself raised construction in the plot in dispute and the plot is being used by him for the purpose of storing manure. According to him, respondents 1 to 3 are not in physical possession of any portion of the plot in dispute. It was pleaded that respondent 4 and 5 alleged themselves to be the purchasers of 10 Maria of land, out of which Plot in dispute is alleged to have been sold by a sale deed by Gurnam Singh in their favour. He further pleaded that property of the parties already stands partitioned and that whole Khasra No. 654 fell to his share. It was averred that on the basis of sale deed allegedly executed by Gurnam Singh defendant No. 1, defendants 4 and 5 wanted to take possession of 10 Marias of land on the eastern side of Khasra No. 654 in illegal and forcible manner to which they are not entitled. He requested respondents 4 and 5 not to do so, but they did not accede to his request. Hence, he filed the suit, for declaration. In the alternative, a prayer was also made that he be given possession of house measuring 1 Kanal 7 Marias shown in read colour as co-sharer on the basis of ownership.
3. Notice of the suit was given to the defendants. However, defendants 1 to 3 did not choose to appear and contest the suit. As such, they were proceeded against ex parte.
4. The suit was contested by Mukhtiar Singh and Gulzar Singh, defendants 4 and 5, respectively. The defendants pleaded that the area of Khasra No. 654 is 2 Kanal 7 Maria in which Gurnam Singh had 1/4 share. He constructed one kotha in the area of said 10 Marias.
Thereafter, it was sold to Mukhtiar Singh and Gulzar Singh defendants 4 and 5 on June 16, 1971 for a consideration of Rs. 5,000/-. It was further pleaded that after the execution of the sale deed, defendants 4 and 5 came into actual physical possession of the property in dispute. As such, the suit is not maintainable in the present form. It was further pleaded that they are bona fide purchasers for consideration without notice. The allegation that the plaintiff had constructed one kotha by spending Rs. 1,000/- was specifically controverted. It was also denied that plaintiff had ever planted any tree.
Following Issues were framed by the trial Court:
1) Whether the property sold by defendant No. 1 to defendants No. 4 and 5 had fallen to the share of defendant No. 1 in family partition? OPD
2) If issue No. 1 is not proved, whether Gurnam Singh defendant No. 1 as a co-sharer in possession transferred the property in dispute to defendants 4 and 5? OPD
3) Whether the plaintiff is in possession of the property in dispute and the suit for declaration can proceed in the present from? OPP
4) Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
5) Whether the suit is within time? OPP
6) Whether the defendants No. 4 and 5 are bona fide purchasers for consideration and without notice? OPD
7) Whether the plaintiff is estopped by his acts and conduct from filing the present suit? OPD
8) Whether the defendants Nos. 4 and 5 have effected improvements in the property in dispute, if so, to what extent and of what value? OPD
9) relief.
5. After consideration oral as well as documentary evidence led by the parties, Issues 1 and 3 were taken up together. Issue No. 1 was decided against the defendants and Issue No. 2 was decided in their favour. Issue No. 3 was decided against the plaintiff and in favour of the defendants. Issues 4 and 5 were not pressed before the trial Court. Therefore, these Issues were decided in favour of the plaintiff. Issue No. 6 was decided in favour of the defendants. Issues 7 and 8 were also not pressed. As such, these Issues were decided against the defendants. Consequently, the suit of the plaintiff was dismissed, leaving the parties to bear their own costs, vide judgment and decree, dated April 26, 1978, as mentioned earlier.
6. Harjinder Singh, plaintiff feeling aggrieved, filed an appeal but the same was also dismissed by the learned Additional District Judge, Ludhiana, vide his judgment and decree, dated March 3, 1979.
7. I have heard the learned counsel for the parties and have carefully gone through the records. Harjinder Singh-plaintiff, Gurnam Singh, Parmatma Singh and Jasmel Singh are the real brothers. They had land and abadi Plots at Village Sawaddi Khas and also abadi Plots at Jagraon. Gurnam Singh and Jasmel Singh were residing at Jagraon, while Harjinder Singh appellant and Parmatma Singh were residing at Village Sawaddi Khas. It was argued by the learned counsel for the appellant that all the four brothers effected exchange in respect of abadi Plots. The abadi Plots at Village Sawaddi Khas were given to Harjinder Singh appellant and his brother Jasmel Singh. In lieu of the Plots at Village Sawaddi Khas, Harjinder Singh and Jasmel Singh relinquished their rights in the abadi Plots of Jagraon in favour of Gurnam Singh and Parmatma Singh. On account of this exchange, Gurman Singh and Parmatma Singh had no right in abadi Plots at Village Sawaddi Khas. Therefore, Gurnam Singh had no right to sell 10 Maria out of the abadi Plot at Village Sawaddi Khas in favour of Mukhtiar Singh and Gulzar Singh. It was also argued that even the case of respondents was that property was partitioned. The land in dispute fell to the share of Gurnam Singh respondent No. 1 in family partition who had sold the same to respondents 4 and 5, but the alleged partition has not been accepted by the Courts below. It was held by both the Courts below that it was a joint property and defendant No. 1 had 1/4 share in that joint property which was sold by him in favour of defendant Nos. 4 and 5. The learned counsel further argued that Gurnam Singh had also sold 10 Marias out of the area comprised in Khasra No. 654, the total area of which, according to the respondents, is 2 Kanals 7 Marias but the entries in the revenue record go to show that area of Khasra No. 654 is only 1 Kanal 7 Maria. Therefore, according to the learned counsel, even if it is assumed that Gurnam Singh being a co-sharer had the right to sell, he could sell only 6-3/4 Marias and not 10 Marias. Even in the sale deed, Exhibit Dl, the area of this Khasra No. is mentioned as 1 Kanal 7 Marias. Therefore, in view of this factual position, the Courts below came to an erroneous conclusion that Gurnam Singh could sell 10 Marias. As such, the sale to the extent of only 6-3/4 Marias could be maintained and not to the extent of 10 Marias. It is vehemently argued that vendees cannot claim more area than that Gurnam Singh could sell. To add to his contention, it was argued that the dispute concerns Khasra No. 654 only not in respect of Khasra No. 653 which is situated at a different place regarding which there is no dispute. He also referred to site plans, Exhibits P1 and D2 and pointed out that the plot in dispute forming part of Khasra No. 654 is situated between the houses of Mukhtiar Singh, Gulzar Singh vendees and the house of Harjinder Singh appellant which further goes to show that Khasra No. 653 which is situated at a distance, is not in dispute. After carefully scanning the evidence and the records, I do not find any force in the arguments advanced by the learned counsel for the appellant. No documentary evidence is available on the record which may go to show that at any point of time any exchange as has been agreed, was effected. Even in the revenue record, there is no entry of any such exchange. No doubt, Parmatma Singh (PW5) and Harjinder Singh (PW6) stated that there was exchange of the plots and the suit property had fallen to the share of Harjinder Singh and Parmatma Singh. Bhajan Singh (PW3) also stated that there was exchange of property but he displayed his ignorance as to with whom the exchange was effected. In the absence of any plea, no amount of evidence can be taken into consideration. Therefore, their evidence is inconsequential. Statement of Parmatma Singh (PW5) was recorded on May 19, 1977. It was stated by him that about fifteen years ago there was partition between the four brothers. His father had also a house at Jagraon. In the partition, Gurnam Singh and Jasmel Singh got two houses at Jagraon and he (PW5) had the land and houses at Village Sawaddi Khas, but it is not the case of Harjinder Singh (PW6) that any partition was effected between the brothers and Khasra No. 654 had fallen to his share. Therefore, the evidence of Parmatma Singh (PW5) is to be left out of consideration.
8. The case of the plaintiff-appellant as set up in the plaint is that he is in possession of Khasra No. 654 and he has planted trees and stored manure therein. He has nowhere pleaded that there was exchange of abadi Plots at Village Sawaddi Khas and abadi Plots in Jagraon; and that Gurnam Singh and Jasmel Singh had relinquished their right and interest in the abadi Plots at Village Sawaddi Khas. The plaintiff-appellant filed the suit on the strength of entries in the Jamabandi for the year 1967-68, Exhibit P2. In the said Jamabandi, Khasra No. 654 (1 Kanal 7 Marlas) is recorded to be the ownership in possession of the four brothers, namely, Gurnam Singh, Harjinder Singh, Parmatma Singh and Jasmel Singh. That goes to show that Khasra No. 654 was jointly owned and possessed by all four brothers. The suit was filed by Harjinder Singh on February 25, 1976. It is pertinent to note that by the time the suit was instituted, Jamabandi for the year 1971-72, Exhibit D3, had been prepared and was in force in which Khasra No. 653 (1 Kanal 0 Maria) and Khasra No. 654 (1 Kanal 7 Marias) are recorded to be joint ownership of all the four brothers and in their joint possession. It goes to show that Khasra No. 653 and 654 were the joint property of all the four brothers and they were co-sharer therein. Therefore, in the area of 2 Kanals 7 Marias, Gurnam Singh vendor had 1/4 share, i.e. to the extent of 11-3/4 Marias. A perusal of sale deed, Exhibit Dl, shows that he had sold 10 Marias out of Khasra No. 653 and 654 as per Jamabandi for the year 196768. He was, therefore, well within his right to sell 10 Marias and he had not sold more than his share in the joint property. It appears that perhaps with a view to raise the dispute, Harjinder Singh obtained a copy of the Jamabandi for the year 1967-68 only regarding Khasra No. 654 and did not obtain the copy of the Jamabandi in respect of other Khasra Number.
9. The learned counsel for the appellant has placed reliance on a Division Bench decision of the Patna High Court in Tarkeshwar Prasad Tewari v. Devan Prasad Tewari, A.I.R. 1926 Patna 180 to contend that Exhibit D5 is the certified copy of plaint in a Preemption Suit filed by Hardip Singh. Appellant Harjinder Singh was not a party to that suit. The author of the plaint was not examined. The document, Exhibit D5, having not been duly proved could not be taken into consideration by the lower appellate Court to draw an inference that Harjinder Singh through his son had challenged the present sale deed in favour of the defendant-respondents, fully admitting Gurnam Singh to be the owner in possession of the Plot. In Tarkeshwar Prasad Tewari's case (supra),' the relationship of defendant No. 1 as son of Ramsuraj and his age were in dispute and on that basis, it was alleged that he had no title to the property of the family and a decree for confirmation of his possession or recovery of possession. It was in that situation, the learned Judges of the Patna High Court observed that plaint is not a public document and certified copy of a plaint is not admissible in proof of age of the signatory. Where a plaint in a suit is sought to be produced as a piece of evidence in some other proceedings, ordinarily the author of it is to be examined to prove it. The record does not show that at the time Exhibit D5 was tendered in evidence and exhibited, any objection was raised regarding its admissibility. If a document is tendered and received in evidence without any objection from the other party and is exhibited, it is not open to that party to object to its admissibility in appeal, much less in second appeal. Therefore, the appellant more particularly in the second appeal has no right to raise objection regarding admissibility of Exhibit D5. Hence, the argument of the learned counsel in that regard pales into insignificance.
10. In view of the discussion above, appeal being without merit is dismissed. No costs.