Punjab-Haryana High Court
Bhajan Kaur And Ors. vs Gurmej Singh And Ors. on 23 December, 1999
Equivalent citations: (2000)126PLR358, 2000 A I H C 1989, (2000) 3 LANDLR 339, (2000) 126 PUN LR 358, (2000) 3 CIVILCOURTC 330, (2000) 2 RECCIVR 523
Author: Iqbal Singh
Bench: Iqbal Singh
JUDGMENT Iqbal Singh, J.
1. The plaint of he present suit filed by the plaintiff Kishan Singh (since deceased and represented by his legal representative Gurmej Singh-plaintiff/respondent No. 1 in this appeal) for possession of the property in dispute as ordered to be returned to the plaintiff by the trial Court after holding that the civil Court is not empowered with the jurisdiction to decide the matter in issue. Aggrieved against the judgment and decree passed by the trial Court, plaintiff-respondent went in appeal before the lower appellate Court which was accepted. To challenge the judgment and decree passed by the lower appellant Court, the defendants filed Regular Second Appeal No. 1223 of 1995 in this Court on the ground that some of the defendants were not properly represented in the appeal before the lower appellate Court. This Court, in Regular Second Appeal, set aside the judgment and decree passed by the lower appellate Court and remanded the case to it (lower appellate Court) for fresh decision in accordance with law.
2. Upon receipt of the case on remand, the lower appellant Court got served the concerned parties and, thereafter, after hearing the counsel for the parties, allowed the appeal filed by the plaintiff-respondent and decreed his suit for possession of the disputed land. In this Regular Second Appeal, the defendant-appellants have challenged the said judgment and decree passed by the lower appellate Court.
3. I have heard Mr. O.P. Hoshiarpuri, Advocate, on behalf of the defendant-appellants and Mr. Ranjit Saini, Advocate, on behalf of the plaintiff-respondent, and have gone through the records of the case.
4. From the copy of the Jamabandi for the year 1979-80 (Exhibit P.W. 5/A), it is evident that Kishan Singh (plaintiff-since deceased) and various others including the Central Government were co-sharers in the landed property in village Sangowal. The copy of the partition order dated 30.5.1977 (Exhibit P.3) reveals that partition of the joint property had taken place between the co-sharers and, on partition, various cosharers got separate parcels of land in lieu of their sharers in the joint property and the disputed land fell to the share of the plaintiff in those partition proceedings. On the basis of said partition proceedings, symbolic possession of the disputed land was also given to the plaintiff vide Roznamcha Report dated 14.2.1985 (Exhibit P.W.4/A). In the Jamabandi for the year 1984-85 (Exhibit P.Y/A), the plaintiff was recorded to be owner of the disputed land which had fallen to his share in the partition proceedings while the defendants were recorded to be in possession of various portions of the disputed land on the basis of tenancy-at-will without payment of any rent etc. From the Repot dated 20.12.1985 (Exhibit P1), coupled with the deposition of Radha Kishan, Halqa Qanungo, it is evident that the defendants were actually in wrongful possession of the disputed land belonging to the plaintiff and had no concern with the same. Jagir Singh defendant (D.W.3) and Bhag Singh (D.W.1) stated that the defendants were in possession of the disputed land for the last 30/32 years. However, as stated above, the disputed land and other property originally belonged to the plaintiff and various other co-sharers, as is clear from the jamabandies for the year 1979-80 (Exhibit P.W.5/A) and for the year 1984-85 (Exhibit P.Y/A). In case the defendants cultivated the disputed land for some time in an unauthorised manner, they could not claim any right or interest in the same nor could they claim any adverse title when the plaintiff and others remained recorded to be owners of the disputed land throughout. In these circumstances, it has rightly been held by the lower appellate Court that the plaintiff being owner of the disputed land was within his rights to sue for possession of the disputed land on the basis of paramount title and whoever defendant was in possession of the disputed land was bound to deliver possession of the same to the plaintiff and that the suit is maintainable in the present form. The lower appellate Court also rightly held that the present case between the owner of the landed property and trespassers on the same, the remedy lies before the Civil Court to decide the controversy. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., J.T. 1999(3) (S.C.) 163, it has held by the Apex Court that the High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. The finding by the lower appellate Court being the finding of fact by last Court on facts, is binding and the High Court is not justified to hold hat there is no independent proof. The learned counsel for the appellants could not refer to anything to show that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence which may warrant interference in Regular Second Appeal.
5. For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed.