Punjab-Haryana High Court
Balwinder Singh vs State Of Punjab And Others on 29 February, 2012
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
RSA No.4258 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4258 of 2011(O&M) Date of decision: 29.2.2012 Balwinder Singh ....Appellant Vs. State of Punjab and others ....Respondents CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr. Ram Kumar Chauhan, Advocate for the appellant.
***** G. S. SANDHAWALIA, J, (Oral).
Civil Misc. No.12319-C of 2011 Prayer made in the application is for grant of exemption from filing the certified copy of judgment dated 5.11.2008 passed by the Addl. Civil Judge (Sr. Division), Hoshiarpur.
In view of the averments made in the application, which are supported by affidavit, the Civil Misc. Application is allowed. Civil Misc. No.12320-C of 2011 Prayer made in this application is for condonation of delay of 170 days in re-filing the appeal.
The application is allowed in view of the averments made in the application, which are supported by affidavit. The delay of 170 days in refiling the appeal is condoned.
R.S.A.No.4258 of 2011
1. The present appeal has been filed by the plaintiff who is aggrieved against the concurrent findings of the Courts below whereby his suit for declaration and permanent injunction had been dismissed. RSA No.4258 of 2011 -2-
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2. The suit of the appellant was for declaration and permanent injunction against the State of Punjab through the Collector and against Provincial Government through Tehsildar (Sales) as well as Gurwinder Singh alias Sucha Singh son of Puran Singh. The plaintiff pleaded that he was in cultivating possession of the land measuring 50 kanals 16 marlas situated in the area of village Khunda, Tehsil and District Hoshiarpur and entries in column No.5 of Jamabandi for the year 1993-94 and 1997-98 showing Puran Singh deceased in cultivating possession were wrong and liable to be corrected and relief of permanent injunction was liable to be granted to him restraining the defendants from interfering in the peaceful possession of the plaintiff and dispossessing the plaintiff from it forcibly and illegally as well as restraining defendants no.1 and 2 from allotting the land in dispute to any body else and from changing its nature. It was alleged that the Provincial Government was the owner of the land in dispute and the plaintiff was in cultivating possession since 1992 and had sown Bajra Tarameera crop and entries of Khasra-Girdawari in the name of Puran Singh son of Rulda Singh are wrong since he had expired about 10 years back. Defendant No.3 is son of Puran Singh and was serving in Co- operative Bank in village Khadiala Sainian and never cultivated the land in dispute and entry of Khasra-Girdawari in the name of a dead person is nullity.
3. The official defendants No.1 and 2 took various objections in the written statement including maintainability of the suit and jurisdiction etc. and on merits it was pleaded that the plaintiff was not in possession of the land in dispute and as per the record Puran Singh was in possession of the land and plaintiff had no right to file the suit as he was neither owner nor in possession of the suit land and defendants had ever right to dispose RSA No.4258 of 2011 -3- **** of the suit land in any manner they like.
4. Defendant no.3 filed separate written statement and averred that the plaintiff was not in possession of the land in dispute nor he had sown any crop and the plaintiff had never applied to get the Khasra- Girdawari corrected in his name and the same were in the name of his father and now he was in possession of the land in dispute from the date of death of his father Puran Singh and was getting the land cultivated through his persons and physical possession of the same was with him. It was accordingly contended that the plaintiff was neither owner nor in possession of the suit land and question of taking possession from the plaintiff forcibly did not arise.
5. On the basis of the pleadings, the trial Court framed the following issues:-
"1. Whether the plaintiff is in established, physical, cultivating possession of the suit land? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form?OPD
3. Whether the Civil Court has got no jurisdiction to entertain and try the present suit? OPD
4. Whether the suit is bad for want of service of mandatory notice under Section 80 CPC to the defendants Nos.1 and 2 ?OPD
5. Whether the suit is bad for non joinder of Secretary Revenue Punjab as a necessary party?OPD
6. Whether the plaintiff is entitled to declaration as prayed for?OPP
7. Whether the plaintiff is entitled to permanent injunction RSA No.4258 of 2011 -4- **** as prayed for?OPP
8. Relief"
5. That plaintiff had examined as many as six witnesses whereas defendant had also examined the same number of witnesses. The trial Court after taking into consideration the evidence brought on record noticed that the Jamabandi for the year 1998-99 Ex.DW3/A showed that that the name of Puran Singh had been recorded in cultivating possession of the suit land as Gair Marussi and there was nothing to show that as to how and in what manner the plaintiff came into possession. It was noticed that neither the plaintiff had pleaded that he had taken the land on lease nor he pleaded that he had dispossessed Puran Singh, who was in possession of the suit land as Gair Marussi and accordingly, the trial Court came to the conclusion that on the death of Puran Singh, tenancy rights devolved upon his legal heirs. It was also noticed that defendant no.3 had filed an application for allotment of the suit land in his favour and report was made on the said application that Puran Singh had expired and Gurwinder Singh was not in possession. However, it was held that since the plaintiff had to stand on his own legs to prove his case and he could not take the benefit of the fact that there were some report that Gurwinder Singh is not in cultivating possession. Report dated 24.9.2009 Ex.PW3/A produced by Ram Sarup Patwari PW-8, which was regarding the compensation for damages of the crop of the land was discarded specifically on the ground that the report showed that there was space differences in between the first four lines and the last four lines and the same were inserted later on and the recital regarding possession of Balwinder Singh plaintiff was made in the last line of the report. It was also noticed that the details of the land in possession of plaintiff Balwinder Singh RSA No.4258 of 2011 -5- **** had not been mentioned in the report and, thus, it was not sufficient to hold that plaintiff was in possession of the suit land. Accordingly, it was held that plaintiff was not entitled to the declaration and injunction even if he was in unlawful possession of the land in dispute. Keeping in view all the circumstances, it was held that the suit was not maintainable in absence of any proof of possession and no injunction could be granted and the suit was dismissed vide judgment and decree dated 5.11.2008.
6. The said judgment and decree was challenged by filing the appeal before the Lower Appellate Court which was dismissed on 19.11.2010 by the Addl. District Judge, Hoshiapur. Resultantly, the present Regular Second Appeal has been filed.
7. Counsel for the appellant has vehemently contended that as per report dated 24.9.2009 Ex. PW3/A, it would be clear that there was sufficient reason to show that the plaintiff was in possession of the land in dispute and, therefore, he was entitled for injunction against dispossession. It is also contended that the application of defendant no.3 for allotting the land had been rejected on the ground that defendant no.3 was not in possession and, therefore, the plaintiff is entitled for declaration and permanent injunction.
8. The submissions made by the counsel for the appellant cannot be accepted by this Court. It is settled that to seek the relief of permanent injunction, the plaintiff had to show that he was in possession. It has been specifically pleaded that he was in possession since the year 1992 but nothing has been brought on record to show that on what basis he was in possession. The land admittedly belongs to the Provincial Government and as per the revenue record, father of defendant no.3 was in possession as Gair Marussi though he had died. The son of Puran Singh had filed an RSA No.4258 of 2011 -6- **** application for allotment of the said land which had been rejected but there is nothing on record to show as to how and when the plaintiff came in possession of the land in dispute. Reference to the report dated 24.9.2009 Ex. PW3/A goes on to show that it was patently procured and fabricated report. A perusal of the photocopy of the report shows, as noticed by the trial Court that four lines regarding the possession had been incorporated later on in the report. The categorical stand of the official defendants was also that it was Puran Singh who was the tenant of the land in question and there was no order of ejectment against him. Simply because the entries had carried on in the name of Puran Singh would not entitle the plaintiff to get a declaration that he was in possession and, thus, entitled for injunction and restraint against official defendants and legal heirs of the deceased tenant. Keeping all these factors in mind and in view of the concurrent findings recorded by the Courts below, which cannot be said suffered from any infirmity, no fault can be found with the well reasoned concurrent findings of the Courts below in the absence of any question of law much less any substantial question of law arising from the records of the present case which would warrant interference in Regular Second Appeal. Accordingly, the present appeal is dismissed in limine and judgments and decrees of the Courts below are upheld.
(G.S.SANDHAWALIA) JUDGE 29.2.2012 Pka