Punjab-Haryana High Court
Ravi Kant And Ors vs Brij Mohan And Ors on 29 May, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA Nos.1582, 1520 & 3139 of 2017 (O&M) 1
119
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision : 29.05.2018
1. RSA-1582-2017 (O&M)
Ravi Kant and others
... Appellants
Versus
Brij Mohan and others
... Respondents
2. RSA-1520-2017 (O&M)
Sushil Kumar (deceased through LRs) and others
... Appellants
Versus
Avinash Chander (deceased through LRs) and others
... Respondents
3. RSA-3139-2017 (O&M)
Ravi Kant and others
... Appellants
Versus
Guruhar Sahai Primary Co. Agr. Development Bank Ltd. and others
... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. Raj Kumar Kakkar, Advocate
for the appellants.
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AMIT RAWAL, J. (ORAL)
CM-4717-C-2018 IN RSA-1582-2017 For the reasons stated in the application, which is duly 1 of 5 ::: Downloaded on - 09-07-2018 18:17:52 ::: RSA Nos.1582, 1520 & 3139 of 2017 (O&M) 2 supported by an affidavit, the application is allowed and the appeal is ordered to be restored to its original number i.e. RSA No.1582 of 2017. MAIN CASES This order of mine shall dispose of three appeals bearing RSA No.1582 of 2017 titled as "Ravi Kant and others V/s Brij Mohan and others" and RSA No.3139 of 2017 titled as "Ravi Kant and others V/s Guruhar Sahai Primary Co. Agr. Development Bank Ltd. and others"
arising out of the Civil Suit No.41 of 2008 (hereinafter called 'First Suit') challenging the mortgage of land measuring 10 kanals 16 marlas to be beyond the share of Bhagwan Dass and RSA No.1520 of 2017 titled as "Sushil Kumar (deceased through LRs) and others V/s Avinash Chander (deceased through LRs) and others" arising out of the Civil Suit No.914 of 2013 (in short 'Second Suit') for declaration with consequential relief of permanent injunction claiming co-ownership by challenging the family settlement dated 12.03.1978, whereby legal representatives (LRs) of Ishar Dass got 55 kanals 18 marals and Bhagwan Dass, 62 kanals 8 marals, respectively.
The plaintiffs instituted the aforementioned suit on the premise that the total holding of land of two brothers Bhagwan Dass and Ishar Dass was 93 kanals 12 marals. Bhagwan Dass during his lifetime alienated the land measuring 46 kanals and was thus left with ownership of 16 marals. On 05.05.2005, the land measuring 10 kanals 16 marals was mortgaged. The suit aforementioned was filed that the land more than his holding could not have been mortgaged. The defendants contested the suit on the premise that the total holding of land was 113 kanals 12 marals and also propounded a
2 of 5 ::: Downloaded on - 09-07-2018 18:17:52 ::: RSA Nos.1582, 1520 & 3139 of 2017 (O&M) 3 family settlement dated 12.03.1978, wherein land measuring 62 kanals 8 marals had fallen to Bhagwan Dass and 55 kanals 18 marals to legal representatives of Ishar Dass.
The plaintiffs filed an application for partition before the Revenue Court, which was dismissed by relying upon the family settlement dated 12.03.1978. The availment of appeal and the revision was also not successful, therefore, filed the second suit as mortgage suit was already pending for adjudication. The first suit was decreed by the trial Court, but the lower Appellate Court reversed the findings of the trial Court.
Learned counsel appearing on behalf of the appellant(s) submits that in the previous instituted suit, the respondents-defendants failed to prove the family settlement as it was allegedly attested by one Pankaj Saluja, brother of the appellants-plaintiffs. In fact, it was an antedated document. The family settlement was not in equal distribution of land, for, Ishar Dass was given less area despite having half share, as the revenue record brought on record showed that the land measuring 93 kanals 12 marals and half of it comes to 46 kanals 16 marals, therefore, mortgage impugned was liable to be set aside.
It was next contended that the defendants miserably failed to prove family settlement as Pankaj Saluja did not appear as a witness. However, in the second suit, Pankaj Saluja appeared and proved the family settlement, thus, there is a gross illegality and perversity, for, the revenue authorities did not examine the revenue record in correct perspective and urges this Court for setting aside the findings under challenge.
I have heard learned counsel for the parties, appraised the paper 3 of 5 ::: Downloaded on - 09-07-2018 18:17:52 ::: RSA Nos.1582, 1520 & 3139 of 2017 (O&M) 4 book and of the view that there is no force and merit in the submissions of Mr. Kakkar, for, during the course of hearing, this Court requested Mr. Kakkar to show the revenue record brought on record for the purpose of determination of total area of the land. On going through the jamabandies, Ex.P-1 is of khewat No.152 bearing different khasra numbers of land 93 kanal 12 marals, whereas Ex.P8 of Khewat No.151, bearing different marlas, is for remaining land and sum total comes to 113 kanals 12 marlas, thus, first argument of Mr. Kakkar with regard to the area of the land, is hereby rejected.
Now coming to the second question whether the family settlement in the first suit had been proved or not. No doubt the trial Court gave the finding in favour of the plaintiffs that the family settlement had not proved, but the parties cannot be prevented to lay claim on the total land, for, partition application was dismissed by the revenue authorities. In those proceedings, the attesting witness of family settlement, Pankaj Saluja appeared and proved it. Once the family settlement had been proved accordingly, the share to Bhagwan Dass as 62 kanals 8 marals in the year 2008 had already been determined, argument of Mr. Kakkar, is wholly misplaced, for, the lower Appellate Court rightly rejected the same. Viz-a- viz second suit, the partition proceedings had attained finality by the revenue court on the basis of the family settlement. No direct and cogent evidence has been brought on record to form a different opinion that the family settlement was not in accordance with law, for, it had been proved through the attesting witness. Resultantly, the finding of fact and law arrived at in the second suit also does not call for interference.
4 of 5 ::: Downloaded on - 09-07-2018 18:17:52 ::: RSA Nos.1582, 1520 & 3139 of 2017 (O&M) 5 As an upshot of my observations, I do not find any illegality and perversity in the findings, under challenge, much less, involvement of substantial question of law arises for determination. No ground is made out for interference. Accordingly, the appeals are dismissed.
( AMIT RAWAL)
29.05.2018 JUDGE
Yogesh Sharma
Whether speaking/reasoned Yes/ No
Whether Reportable Yes/ No
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