Punjab-Haryana High Court
Hardeva vs Jagdev Singh And Others on 31 January, 2012
Author: K.C.Puri
Bench: K.C. Puri
RSA No.3814 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3814 of 2011 (O&M)
Date of decision 31.01.2012.
Hardeva
...... Appellant.
versus
Jagdev Singh and others
...... Respondents.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present :- Mr. Rajbir Sehrawat, Advocate for the appellant. K.C.PURI. J.
C.M.No.10894 C of 2011 There is delay of 75 days in filing the appeal. In view of the reasons mentioned in the application, the delay in filing the appeal stands condoned.
C.M. stands disposed of accordingly.
Main appeal.
Plaintiff/appellant has directed the present regular second RSA No.3814 of 2011 2 appeal against the judgment and decree dated 7.4.2011 passed by Ms. Ritu Garg, Additional District Judge, Sonepat vide which the appeal preferred by Hardeva for himself and as legal representative of deceased Saheb Singh against the judgment and decree dated 11.8.2009 passed by Shri Mohit Aggarwal, PCS, Civil Judge (Junior Division), Sonepat was dismissed.
2. Briefly stated that Sahab Singh now deceased and Hardeva filed a suit for injunction against the defendants with the allegations that plaintiff are in cultivating possession of agriculture land as detailed in para No.1 and 2 of the plaint. It is alleged that they are in possession of half share of land falling in Killa No.22/20/1 measuring 2 kanals 9 marlas and Rect./Killa No.22/10 measuring 8kanals total 9 kanals 5 marlas as tenant on 1/3rd Batai (share) since the time of their forefathers. It is stated that plaintiff have sown wheat crop in the suit property. It is further alleged that Lichmi Devi (since deceased) had bent upon to take forcibly possession of the suit property from the plaintiff of which she had no right. Lichmi Devi has since died and her legal representatives are also brought on the record as defendants.
3. On put to notice, defendant appeared and contested the suit. Lichhmi deceased appeared in the Court and filed written statement taking up preliminary objections of maintainability of the suit, cause of action and without locus standi.
4. On merits, the defendant controverted all the pleas taken by the plaintiff in their plaint. It has been pleaded that the suit property is owned and possessed by the defendant and the plaintiff have no concern with the suit property. The tenancy of the plaintiff over the suit land was denied. It RSA No.3814 of 2011 3 has been stated that plaintiff are the sons of Ram Chand, who was the real brother of deceased Amar Singh, husband of the defendant. After taking advantage of the death of the husband of the defendant, Ram Chander i.e. Father of the plaintiff manipulated some wrong entries in his favour as a tenant under the defendant in collusion with the Halqa Patwari without any notice to the defendant. It is pleaded that the said entries are not binding on the rights of the defendant. The defendant had sown the wheat crop and now has sown Jawar crop in the suit land. She had also installed a tubewell and Pooja Asthan in killa No,.22/20/1.
5. Replication was filed in which the pleadings of the plaint were reiterated and denying that of the written statement.
6. From the pleadings of the parties the following issues were framed as under:-
1. Whether the plaintiffs are in possession of the land in suit as tenants under the defendants as alleged? OPP.
2. Whether the suit of the plaintiffs is not maintainable in the present form?OPD
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the plaint does not disclose any cause of action?OPD
5. Relief.
7. In order to prove his case the plaintiff has examined Hardeva (plaintiff No.2), PW-1, Satbir Singh PW-2 and Rameshwar PW-3 and closed the evidence after tendering into evidence certain documents. On the other hand, defendants examined Amar Singh as DW-1, Sultan Singh as DW-2, Gaze Singh as DW-3 and Raghubir Singh as DW-4 and also RSA No.3814 of 2011 4 tendered certain documents into evidence.
8. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence returned findings on issue Nos.1 and 3 against the plaintiff and in favour of the defendants whereas issue No.2 and 4 were decided against the defendants and in favour of the plaintiff. However, in view of findings on issue Nos.1 and 3, the suit of the plaintiff was dismissed. vide judgment and decree dated 11.8.2009.
9. Feeling dissatisfied with the judgment and decree dated 11.8.2009, one of the plaintiff-Hardeva for himself and as legal representative of Sahab Singh preferred first appeal. The said appeal was heard by Ms. Ritu Garg, Additional District Judge, Sonepat, who vide her judgment and decree dated 7.4.2011 dismissed the appeal.
10. Still feeling dissatisfied with the aforesaid judgments and decrees, one of the plaintiffs Hardeva has preferred the present regular second appeal.
11. The appellant in para No.11 of the grounds of appeal have submitted that following substantial question of law have arisen :-
1) Whether the judgment and decree passed by the learned Lower Courts are perverse and has resulted from mis-appreciation of mandatory provisions of law and the evidence of file?
2) Whether it is illegal to discard the revenue entries in favour of a person before his death merely on the ground that the same entry had continued even after his death?
3) Whether the recital in a deed regarding possession is sufficient to rebut the possession shown by the revenue records?RSA No.3814 of 2011 5
4) Whether the defendant Lichhmi could claim to be owner in possession of the land in dispute before the date the sale deed was executed in her favour?
12. Learned counsel for the appellant has submitted that both the Courts below have ignored the revenue record on the ground that father of plaintiff has died in the year 1982 and entries thereafter in the name of Ram Chander father of the plaintiff cannot be given due importance. It is submitted that from the very beginning the father of plaintiff has been recorded in possession to the extent of half share in the suit property after his death the plaintiff/appellant came into possession of the suit property. The sale deed in favour of Lichhmi does not confer any right regarding tenancy rights of the plaintiff. The judgments and decrees of both the Courts below are the result of misreading and misinterpreting the evidence on the file.
13. I have given my thoughtful consideration to the rival submissions and have perused the records of the trial Court.
14. The plaintiff has simply filed suit for permanent injunction restraining the defendants from interfering in the possession of the plaintiff. It is settled law in a suit for permanent injunction the plaintiff can succeed only if he is able to prove his possession at the time of filing the suit. During the course of arguments, counsel for the appellant has stated that Ram Chander died in the year 1982. So, the subsequent entries in the revenue record incorporating his name are wrong on the face of it, as observed by both the Courts below. There is a registered sale deed dated 24.7.1980 executed by its owner in favour of Lichhmi in which there is a recital that possession has been handed over to her. The respondents are the RSA No.3814 of 2011 6 legal heirs of Lichhmi. In case the plaintiff would have been in possession of the suit property in that case they would not have kept quite for sixteen years. Even if the entries taken in the record is taken on its face value, the plaintiff are not entitled to the injunction as per jamabandi for the year 1968-69 Lichhmi Devi and Ram Chander have been shown tenant to the extent of half share in the suit land. No exclusive possession of Ram Chander has been shown in any revenue record in respect of any khasra number or part thereof. After the death of Ram Chander the revenue entries showed him in possession and both the Courts below have rightly ignored those entries. There is nothing on the file that both the Courts below have misread and misinterpreted the evidence on the file. The concurrent finding of fact recorded by both the Courts below that the plaintiff have failed to prove their possession over the suit property cannot be interferred in the regular second appeal in view of Section 100 CPC.
15. So, I have no hesitation in holding that substantial questions of law framed above stand answered against the appellant.
16. Consequently, the appeal is without any merit and the same stands dismissed.
17. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
January 31 , 2012
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