M.M. Kumar, J. - (1.) This regular appeal is directed against the judgment and the decree passed by the learned Additional District Judge, Amritsar dated 14.3.1980. The learned Additional District Judge vide his aforementioned judgment and decree has affirmed the judgment and the decree passed by the learned Sub Judge, Amritsar on 9.12.1977.
(2.) One Mohinder Singh filed a suit seeking declaration that he is owner in possession of land measuring 24 kanals comprised in Killa Nos.68.69 and 176 according to the jamabandi for the year 1970 -71 situated in village Kallowal, District Amritsar. He further claimed that after declaring him owner and in possession a decree for permanent in -junction be issued restraining one Smt. Guro widow of Bansa Singh -respondent No.2 from dispossessing him or interfering in his possession. The learned Sub Judge after considering the evidence led by the parties came to the conclusion that plaintiff Mohinder Singh was not the owner of the land in dispute but he was in possession on the basis that the land was mortgaged to his predecessor -in -interest Sadhu Singh by one Mangta vide mortgage deed dated 13.8.1924. The land which was mortgaged to Sadhu Singh comprised in the old Khasra No.623 as per jamabandi for the year 1922 -23. It is clarified that the land comprising in Killa Nos.68, 69 and 176 according to jamabandi for the year 1970 -71 situated in village Kallowal, District Amritsar was allotted to Sadhu Singh in lieu of the mortgaged land. Mohinder Singh plaintiff and his sister claimed succession in equal shares being the son and daughter of real brother of Sadhu Singh. It was alleged that the mortgage was never redeemed. The learned trial court found that the plaintiff -respondent has failed to prove that he had become owner of the property. However, on the basis of entries in khasra girdawaries produced by the plaintiff -respondent, it was held that his name had always figured therein and earlier to his name, the name of Sadhu Singh used to appear in the column of Agriculture in the kasra girdawaries. It was further held by the trial court that name of Smt. Guro defendant -respondent No.2 had not appeared at any stage in khasra girdawaries. It is pertinent to mention that Union of India did not contest the suit before the trial Court. The trial Court passed a decree of permanent injunction in favour of plaintiff -respondent No. 1 restraining defendant -respondent No.2 Smt. Guro from interfering in possession of plaintiff -respondent No. 1 over the suit land and restrained her from dispossessing plaintiff -respondent No. 1 from this land. The prayer of the plaintiff -respondent No. 1 for a decree of declaration that he was owner of the suit land was declined. Aggrieved by the judgment and decree of the trial Court, both plaintiff -respondent No. 1 and defendant -respondent No.2 filed appeals before the learned District Judge, Amritsar. Deciding both the appeals by a common judgment, the learned Additional District Judge affirmed the findings of the trial Court and also repelled the plea of plaintiff -respondent No. 1 claiming that he had become owner of the said land. While rejecting the plea of plaintiff -respondent No. 1, the learned Additional District Judge held as under: - "The contention of the leaned counsel for the appellant Mr. Shanti Sarup Adv. that the trial court wrongly gave findings that the plaintiff is not the owner of the suit land because the property has not correctly been declared as evacuee property in accordance with the provisions of the Evacuee Property Act. He has also argued that the property was mortgaged and as such did not become evacuee property because the property is composite properly and interests have not been separated and no notice under Sec. 7 under the Administration of Evacuee Property Act, 1950, was issued and, therefore, the order declaring the property to be evacuee is without jurisdiction, and in this behalf he has relied upon Dr. Zafar Ali Shah and others v/s. The Assistant Custodian of Evacuee Property, Jhansi The contention of the learned counsel for the appellant in this case cannot be accepted, firstly, for the reason that the plaintiff, no where in his plaint has taken the plea that the property is not an avacuee property and has wrongly been declared as an evacuee property by the concerned authorities and this being the position no issue was correctly framed regarding the property being evacuee or not. He has only alleged to have become owner as the property has not been redeemed. However, there cannot be any dispute about the proposition of law as laid down in : A.I.R. 1967 S.C. 106 (supra). 1 feel it necessary to mention here that plaintiff even appearing as PW3, in his statement, no where stated that he was not issued notice under Sec. 7 of the Administration of Evacuee Property Act, 1950, nor stated that the property was not evacuee property and has wrongly been declared as evacuee property. It is well settled principle of law that a party cannot be beyond the pleadings and no amount of evidence can be looked into if it is beyond the pleadings. The learned counsel for appellant has also relied upon Nur Mohammad vs. Union of India, 1976 R.L.R. 498. It is not at all helpful to him because that related to an Evacuee Interest (Separation) Act (64 of 1951). Therefore, 1 come to the conclusion that the plaintiff has not become the owner of the property as the property is still under mortgage and the mortgage has not yet been redeemed. The learned Sub Judge, had rightly given his findings that the plaintiff has not become the owner as claimed."
(3.) So, far as the appeal filed by the defendant -respondent No.2 is concerned, the learned Additional District Judge concluded that she was never delivered possession as the warrants of allotment issued in her favour were not received back after execution. In this regard, the view taken by learned Additional District Judge is as under: - "Now coming to the next argument regarding possession, the counsel for the other appellant Smt. Guro has argued that Guro was given possession of the property by the revenue authorities, but she has not been able to bring anything on the record to show that actual possession was delivered. The defendant examined only Ram Dass, Clerk of the Tehsildar (Sales) as DW1 to prove the allotment order Ex.D1 but mere allotment order does not show that the possession has been delivered as according to the evidence, the warrants of allotment had not been received back after execution. If she had been actually delivered the possession, then the entries would have been changed in the revenue record at once, because this is a case in which the possession was to be delivered through the Revenue Authorities by the order of the Government. But the perusal of the record i.e. Ex.P -27 the copy of the khasra girdawari, goes to show that the possession is not of Guro. This khasra girdawari relates to the years 1971 -73. According to Ram Dass (DW 1) allotment order was made on 23.4.1973 and if allotment order had already been put into effect, then as already mentioned above, the entries in the revenue record would have been changed to show that the possession is of defendant No. 1. Perusal of Ex.P -16, another copy of the kasra girdwari does not show the change in the cultivating possession of Smt. Guro. No other revenue record has been produced by her to show her possession in the land in dispute after 23.4.1973. The patwari who had delivered the possession had not been examined and in fact that was the right person to say as to whether the possession has been delivered and if a party in possession of best evidence, fails to produce the same, for the reasons best known to it, the court can rightly draw an adverse inference against the party. Reference with advantage can be made to Mathura Singh and Ors. v/s. Gurbachan Singh, (1967)69 P.L.R. 119.";