Punjab-Haryana High Court
Samma Singh vs Kapur Singh And Ors. on 3 May, 1996
Equivalent citations: (1997)116PLR791
Author: B. Rai
Bench: B. Rai
JUDGMENT B. Rai, J.
1. This Regular Second Appeal has been filed by defendants 1 and 2 (appellants herein) against the judgment and decree, dated October 1, 1985 of the trial Court vide which the suit for permanent injunction filed by Kapur Singh plaintiff (respondent No. 1 in this appeal) on the basis of possession was decreed, which on appeal was affirmed by the Additional District Judge, Jalandhar, vide his judgment and decree, dated February 23, 1989.
2. Brief facts of the case are that Kapur Singh son of Thakur Singh plaintiff filed a suit for a decree of permanent injunction restraining the defendants from interfering in the lawful and peaceful possession of plaintiff over the land measuring 24 Kanals 0 Maria, comprised in Khewat Kahtauni No. 29/61, Killa Nos. 14/13 (8-0), 14(8-0), 17(8-0), situate in the are of Village Kaimwala, Tehsil Nakodar, District Jalandhar, as owner, as per Jamabandi for the year 1978-79, alleging that the land was owned and possessed by him as the same was purchased from the Tehsildar Sales and the defendants had no right or title to the suit land but they were threatening to dispossess him forcibly from the said land. The defendants refused to admit the claim of the plaintiff. Hence, Kapur Singh plaintiff was compelled to file the suit.
3. The suit was contested by the defendants on the grounds that the plaintiff was not in possession of the suit land and was not entitled to the injunction, prayed for. It was also alleged that the suit was not maintainable, that defendant No. 1 had been in possession of the suit land for the last more than twenty years and the report of the Naib Tehsildar, Nakodar, clearly proved his possession, that the plaintiff was estopped from filing the suit by his act and conduct; and that he had no locus standi to file the present suit. It was also alleged that the suit was bad for mis-joinder of parties.
4. On merits, it was alleged that defendant No. 1 was in possession of the land in suit for the last more than twenty years and the plaintiff was neither in possession nor was he an owner of the suit land. Therefore, the suit deserved to be dismissed.
5. By way of replication, the averments contained in the plaint were reiterated and those contained in the written statement were refuted.
6. From the pleadings of the parties, following Issues were framed by the trial Court :
(1) Whether the plaintiff is in possession of the land in dispute as owner ? OPP (2) Whether the plaintiff is entitled to the injunction prayed for ? OPP (3) Whether the suit is not maintainable ? OPD (4) Whether the plaintiff is estopped to file the suit ? OPP (5) Whether the suit is bad for misjoinder of the parties ? OPP (6) Relief.
7. Issues 1 to 3 were taken up together and it was held that the plaintiff was in possession of the suit land as owner and he was entitled to the injunction, prayed for, and the suit was also maintainable in the present form. Resultantly, all the three Issues were decided in favour of the plaintiff and against the defendants.
8. Under Issue No. 4, finding was returned that the plaintiff was not estopped from filing the present suit by his act and conduct. This issue was decided accordingly.
9. Under Issue No. 5, it was held that the suit was not bad for mis-joinder of parties. As a result, the suit of the plaintiff was decreed with costs.
10. On appeal by the unsuccessful defendants, the findings of the trial Court were affirmed by the learned Additional District Judge, Jalandhar, vide his judgment and decree, dated February 23, 1989, as stated in the earlier part of this judgment.
11. I have heard the learned counsel for the parties and have carefully gone through the record.
12. At the outset, it may be pointed out that only the findings on Issues 1 and 2 have been challenged before me. It was pointed out by the counsel for the appellants that the learned trial Court had observed that the application for correction of the Khasra Girdawari was moved during the pendency of the suit and the order was also passed during the pendency of the suit on November 19, 1985. According to him, this observation is factually wrong, as the suit out of which the present appeal has arisen, was instituted on May 2, 1984, whereas application for correction of Khasra Girdawari was made on March 21, 1984. Therefore, it cannot be said that the application for correction of Khasra Girdawari was made during the pendency of the suit and the order dated November 19, 1985 passed by the Assistant Collector 2nd Grade, Nakodar, materially affects the decision of the suit. However, it is available from the record that Khasra Girdawari entries for Harri 1985 and Sauni 1985 were ordered to be corrected by the Assistant Collector 2nd Grade, Nakodar, in favour of Samma Singh, appellant No. 1 herein. It is also undisputable that in a suit for permanent injunction on the basis of possession, the Court has to see as to which of the parties was in possession on the date of institution of the suit. In the instant case, the suit was admittedly filed on May 2, 1984 and it is not forthcoming from the record that Khasra Girdawari entries were corrected in the name of the Samma Singh for the year 1984 or prior thereto. The case of Kapur Singh plaintiff is that the land in dispute was purchased by him on the basis of possession and entries to that effect were made in the Jamabandi for the year 1978-79 and mutation was also sanctioned in his favour. A perusal of Jamabandi for the year 1978-79 Exhibit P-l reveals that Kapur Singh was recorded to be in cultivating possession of the land in dispute. Exhibit P-2 is the Khasra Girdawari for the crops Kharif 1979 to Rabi 1984. In this document also, Kapur Singh is recorded to be in cultivating possession of the suit land. As observed earlier, Khasra Girdawari entries in respect of Rectangle No. 14, Khasra Nos. 13, 14 and 17 were not corrected in favour of Samma Singh. Assuming for the sale of argument that application for correction of Khasra Girdawari entries was made by the appellants before the institution of the suit and the order correcting the said entries was also passed during the pendency of the suit, once it is found that Khasra Girdawari entries up to the crop-Rabi 1984 were not ordered to be corrected, it cannot be said that the order, dated November 19, 1985 of the Assistant Collector 2nd Grade, Nakodar, has any effect on the rights of Kapur Singh, plaintiff. From the oral as well as documentary evidence, both the Courts below have concurrently found that Kapur Singh was is possession of the land in dispute till the date of the institution of the suit, that is May 2, 1984. The order correcting the entries in the Khasra Girdawari does not go to show that after passing of that order, appellant Samma Singh came into possession of the suit land. Not only that, it was not so pleaded even in the written statement. There was no such suggestion put to any of the witnesses in cross-examination. It is relevant to mention here that once the disputes have arisen between the parties, regarding the correctness of Khasra Girdawari entries, the controversy cannot be allowed to be transferred for decision to the Revenue Authorities. If any orders for the correction of the entries in the Khasra Girdawaris have been made by these authorities, those would be irrelevant in the civil proceedings and only the evidence adduced by the parties in connection with the truthfulness or falsity of the Khasra Girdawari entries shall have to be assessed independently by the Civil Court. Reference may conveniently be made to a judgment of this Court in Gurnam Singh and Ors. v. S. Jagjit Singh, 1972 P.L.J. 211.
13. Besides, in view of the provision of Section 100 of the Code of Civil Procedure, this Court is not required to go into the sufficiency or adequacy of evidence recorded by the Courts below especially when no substantial question of law had been raised during the course of arguments and nothing was pointed out by the learned counsel for the appellants that both the Courts below fell in error in non-reading or mis-reading of evidence led by the parties.
14. To sum up, therefore, I do not find any infirmity or illegality in the concurrent findings of the two Courts below as to be interfered with in second appeal. This appeal is accordingly dismissed with no order as to costs.