Punjab-Haryana High Court
Darshan Singh vs Santokh Singh And Ors. on 21 January, 1997
Equivalent citations: (1997)116PLR158
Author: B. Rai
Bench: B. Rai
JUDGMENT B. Rai, J.
1. This appeal arises out of suit for permanent injunction filed by Darshan Singh which was dismissed by Sub Judge, First Class vide his judgment and decree dated 28.4.1997. Feeling aggrieved Darshan Singh preferred an appeal which was also dismissed by the learned District Judge vide his judgment and decree dated 11.10.1979. Still Darshan Singh, plaintiff being not satisfied has come up in second appeal.
2. Brief facts are that the suit land was owned by the Provincial Government. It was alleged by Darshan Singh that he cultivated the suit land from Rabi 1978, on payment of two times of the land revenue to the Central Government. According to him the defendant had no concern with the suit land; however, they tried to dispossess him forcibly on 10.4.1978 but they were not permitted to do so, Hence, he filed the suit.
3. Nachattar Singh, defendant No. 4 was proceeded against ex-parte by the trial Court. However, other defendants filed the written statement raising objections that the plaintiff is estopped from filing the suit by his act and conduct and the suit in the present form was not maintainable. On merits they pleaded that the entire land of village Sheikh Majra was acquired by the Government for Pong Dam but later on the land was released to the owners with payment of eight time of the land revenue. Consequently, Harnam Singh, the owner of the suit land, possession was delivered to him. Veero is attorney of Harnam Singh. She had given that land on lease to Anokh Singh, defendant No. 2 who is in actual possession of the same at the spot. Prior to that Anokh Singh was in possession of the suit land and to that effect entries exist in the revenue record, and still he is recorded to be in possession of the suit land. Pleadings gave rise to the following issues :-
1. Whether the plaintiff is in possession of the suit land as a tenant? OPP
2. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD
3. Whether the plaintiff is entitled to the injunction prayed for? OPP.
4. The trial Court, after appraisal of the evidence, adduced by the parties, on issue No. 1, returned the finding that the Patwari had wrongly show the possession of Darshan Singh over the suit land in Rabi, 1978. Actually he did not hold possession and, therefore, finding was returned against the plaintiff. The defendants failed on issue No. 2 for want of evidence. In view of finding on issue No. 1, it was held that plaintiff was not entitled to the injunction prayed for. Consequently, the suit of Darshan Singh was dismissed leaving the parties to bear their own costs.
5. The learned District Judge in appeal preferred by Darshan Singh affirmed the findings of the trial Court on all the issues and dismissed the appeal with no order as to costs.
6. After having heard the learned counsel for the parties and pursuing the record, I find no merit in the appeal.
7. It was argued by the learned counsel for the appellant that the plaintiff in order to seek the relief of permanent injunction, has to prove his possession only and is entitled to protect the same by seeking relief of permanent injunction against whosoever attempts to forcibly dispossess or interfere with his possession. In support of his argument, he referred to Khasra Girdawri for the Rabi Crop 1978 and pointed out that in Rabi 1978, Darshan Singh, plaintiff is recorded to be in possession of the suit land and the defendant-respondents have no legal right or to take possession forcibly. It was stressed that even if the defendants have some right or title, the plaintiff cannot be dispossessed except in due course of law. It was submitted that both the Courts have taken erroneous view of the evidence led by the appellant and the evidence has not been properly appreciated. According to him, erroneous appreciation of the evidence has led both the Courts to hold that the appellant is not in possession of the suit land which in view of the documentary evidence is a perverse finding which deserves to be set aside and that suit should be decreed.
8. I do not find any substance in the submissions made by the learned counsel for the appellant. After going through the judgments of the trial Court and of the first Appellate Court and the evidence on record, I am of the considered view that both the Courts below have properly appreciated the evidence and have come to the right conclusion that the appellant has not been successful in proving that he was in actual possession of suit land on the date of tiling the suit. No doubt in the Khasra Girdawri, Ex.D-1, Darshan Singh is shown to be in possession of the suit land in Rabi 1978 but he did not bring any cogent and convincing evidence on record to show as to how and in what manner, he had come into possession of the suit land. In the Khasra Girdawari, Ex.D1, entries reflected therein show that in crop Rabi, the suit land, except Khasra No. 2024, was in possession of Anokh Singh, son of Jagir Singh whereas Khasra Girdawri 2024 was in possession of Jagir Singh, son of Harnam Singh.
9. Darshan Singh, appellant stated that he is cultivating the suit land for the last 8-10 years on payment of two times the land revenue. Raj Kumar, PW-2 also stated that Darshan Singh is cultivating the suit land for the last 8-10 years but no documentary evidence has been brought on the record to substantiate the same nor any receipt regarding payment of two times the land revenue has been produced. Not only this, in the plaint, Darshan Singh pleaded that he was cultivating the suit land but no case was set up by the last 8-10 years. It is well settled that any amount of evidence in support of a plea which does not find place in the pleadings is inconsequential and is to be left out of consideration. No evidence is available on the record to show as to how and in what manner Darshan Singh came into possession of the suit land and under what authority Khasra Girdawri entries in respect of Rabi Crop, 1978 were changed in his name from the names of Anokh Singh and Jagir Singh. I am of the view that both the Courts below have rightly come to the conclusion that the plaintiff has failed to prove his possession over the suit land. It is well settled that the concurrent finding of fact recorded by the Courts below after appraisal of evidence , however, erroneous, it may be, is not to be interfered with in the second appeal. A reference may be made to a decision of the Apex Court in Deity Pattabhirmaswamy v. S. Hanymayya and other, A.I.R. 1959 SC 57 wherein it was held that provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the grounds of erroneous finding of fact, howsoever, gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a findings of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.
10. Before concluding the judgment, it may be noted that during the pendency of second appeal the applicant had filed an application under Rule 27 of Order 41 of the Code of Civil Procedure praying for leading additional evidence. A party can be allowed to take the recourse to the provisions of order 41 Rule 27 of the Code of Civil Procedure only in case the trial Court had refused to admit the evidence even though it ought to have been admitted, or the evidence was not available to the party notwithstanding the exercise of due diligence; the appellate Court requires the additional evidence so as to enable it to pronounce the judgment. But in the instant case, none of contingencies arises here on the asking of the party, it cannot be allowed to adduce additional evidence. Consequently, the prayer is declined.
11. For the reasons recorded above, and in view of the authoritative pronouncement of the Apex Court in Deity Pattabhirmaswamy's case (supra), I am of the view that appeal is absolutely without merit which deserves to be dismissed. Accordingly, the same is dismissed with no order as to costs.