SARDAR SINGH Vs. FATEH SINGH

JUDGEMENT

(1.) Appellant-defendants are in Regular Second Appeal against the concurrent findings of fact, whereby the suit of the respondent-plaintiff seeking declaration to the effect that the alienation of the land detailed in Paras 7, the plaint being null and void and not binding upon the reversionary rights of the plaintiff on the premise that the same was sold by Baru without any legal necessity and consideration, has been decreed.

(2.) Mr.Vijay Sharma, learned counsel for the appellant-defendants submitted that the Courts below have erred in deciding the issues in the absence of any documentary and oral evidence on record. In fact, Ex.P4 to Ex.P7 have not been proved and, therefore, no reliance can be placed on the said documents as the same were not admissible in evidence. The translation of the aforementioned documents has not seen the light of the day. The 1 of 6 Regular Second Courts below have erroneously formed an opinion without looking into the contents of the same. The statement of DW-1 cannot be regarded as admission in order to prove issue No.2. In fact, the onus lied upon the respondent-plaintiff to establish that the suit property at the hands of Baru Ram was ancestral and coparcenary in nature. The Courts below have further misinterpreted and misconstrued the documentary evidence, much less as per the settled law once the property was not proved to be ancestral, the sale deed could not have been challenged. It was barred by law of limitation as the suit was instituted in the year 1971, whereas the sale deed is of 1957. Registered document carries a presumption of truth and cannot be set-aside in the absence of the evidence on record. During consolidation and post consolidation, khasra numbers do not tally as per the sale deed and, therefore, in view of the non-resemblance of the khasra numbers, the property could not be branded as ancestral.

(3.) He further submitted that as per mutation No.30 22/4/1923, (Ex.P8) of Musadi son of Tuliya, the great ancestor, the total area regarding Khewat Nos.3 and 5 was 111 bighas and 7 biswas and 22 bighas and 6 biswas and, thus, the share of Musadi was 1/5th. The jamabandi for the year 1922-23 (Ex.P9) regarding Khewat No.2, Khatauni No.11 shows Jot Ram son of Musadi - 1/2 share and Mangu and Chhaju sons of Bhagwana - 1/2 share. The total share comes to 98 bighas 6 bishwas. In fact, respondent-plaintiff has failed to place on record the jamabandies from 1928 to 1949 as jamabandi Ex.P10 pertains to the year 1926-27, whereas the total area of the land in favour of Jot Ram son of Musadi is 107 bighas 14 biswas (Khewat No.2/2, Khatauni No.3. The area of Jot Ram son of Musadi as per jamabandi for the year 1950-51 (Ex.P11) comes to 646 bighas 0 biswa, 2 of 6 Regular Second whereas as per sale deed dtd. 25/11/1957, Baru Ram on behalf of his minor brother Ram Singh sold the total area, i.e., 141 kanals 13 marlas to various vendees, i.e., the appellants bearing Muraba Nos.8 and 9, Killa No.1 to 5, 7-13, 14/2-14/3, 16 to 20. The new khasra numbers do not tally with the khasra numbers in the sale deed vis-a-vis the jamabandies aforementioned. The plaintiff has failed to produce on record the Excerpt report, which is required to be brought on record as per the High Court Rules and Regulations and the law laid down by this Court in Banta Singh and others Versus Phuman Singh and another, 1972 PLR 275. Thus, the findings of the Courts below are perverse and against the record. In fact, it is evident that the land comprised in the sale deed was purchased by Chhaju and Mangu and not from the land inherited from Musadi. The defendants have purchased the land by paying market rate to the father of the plaintiff and since then they are in possession of the said land.