PUNJABI AND ANOTHER Vs. HAZURA SINGH AND OTHERS

JUDGEMENT

(1.) Sarwan Singh on the one hand and Sampuran Singh on the other were co-owners in equal shares of the land measuring 116 bighas 7 biswas situate at village Jandli,Tehsil Rajpura and 363 bighas 14 biswas situate at another village of the same name Jandli, Tehsil Ambala. Sampuran Singh and Hazara Singh sold the entire land situated at village Jandli, tehsil Rajpura to respondents No. 1 to 3 claiming themselves to be its exclusive owners. On the death of Sarwan Singh in the year 1962, his estate devolved on the said Hazara Singh, Sampuran Singh and their sisters Smt. Punjabi and Jangiro in equal shares. Alleging that Hazara Singh and Sampuran Singh were only owners of 1/2 share of the land sold, Smt. Punjabi and Jangiro filed this suit for possession of half of the share of Sarwan Singh out of the said land.

(2.) The suit was contested by the vendee-defendants who set up several pleas in defence, one of them being that the land in dipute had fallen to the share of the vendors on mutual partition between the co-sharers. This plea as well as the plea of improvements made after the purchase to the extent of Rs. 6300/-, were upheld by the trial court and the suit dismissed. Its finding having been affirmed on appeal by the learned Additional District judge, Patiala, the plaintiffs have come up in this second appeal.

(3.) The learned counsel for the appellants to assail the concurrent findings of the Courts below contended that the report Exhibit P.6, on the basis of which mutation of mutual partition/exchange purported to have been attested, was made by one of the vendees and neither the vendors nor Sarwan Singh appeared before the Patwari in support thereof. He further argued that no doubt the presnce of Sarwan Singh is recorded in order of attestation of the mutation but that appears to be the result of impersonation by some one at the instance of the vendees. To substantiate this contention, he relied upon the fact that in the village in district Ambala, the land stood in the name of Sarwan Singh on the one hand and Sampuran Singh and Hazara Singh on the other in equal shares and on the death of Sarwan Singh, his share was mutated in the name of Hazara Singh and Sampuran Singh and their two sisters. This fact according to the learned counsel clearly shows that neither there was any mutual exchange nor partition between the said co-sharers. The argument of the learned counsel appears to be well merited. No doubt there is a presumption to the official acts but when identity of a person who is stated to have appeared before the revenue officer is disputed it has to be established from some evidence other than the mutation order itself because there is no presumption as to the identity of such a person. No evidence whatsoever was at all produced by the vendees to prove that it was a fact Sarwan Singh who appeard before the revenue officer and admitted the correctness of the report. Otherwise also, the presumption attached to the official act stands rebutted from the fact that no corresponding mutation of any exchange or mutual partition was ever entered regarding the land situated at village Jandli, district Ambala from which knowledge of the mutation, Exhibit D.2, could be ascribed to Sarwan Singh who was admittedly residing in the village in district Ambala. The Courts below completely failed to notice the facts and circumstances noticed above. Their concurrent finding, therefore would not be binding in second appeal and is hereby reversed.