Regular Second Appeal No. 3983 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3983 of 2009 Date of decision : March 15, 2011 Raghbir Singh ....Appellant versus Balak Ram and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Dinesh Ghai, Advocate, for the appellant Mr. NK Joshi, Advocate, for the respondents L.N. Mittal, J. (Oral) Plaintiff Raghbir Singh who was successful in the trial court but has been non-suited by the lower appellate court has come up by way of instant second appeal. Plaintiff filed suit against respondents/defendants alleging that plaintiff is in possession of the suit land measuring 3 bighas 18 biswas comprised of khasra no. 568 since the time of his fore-fathers who were cultivating the suit land on batai/rent. Plaintiff purchased the suit land vide registered sale deed dated 23.11.2001 from Mohinderjit Singh Puri through his attorney and thus, the plaintiff is now owner as well as in possession of the suit land but the defendants threatened to dispossess him therefrom Regular Second Appeal No. 3983 of 2009 -2- necessitating the filing of the instant suit for permanent injunction restraining the defendants from interfering in plaintiff's possession over the suit land. Defendants denied the plaint allegations and pleaded that vide sale deed dated 22.4.2002 registered on 13.5.2002 defendants have purchased 7 bighas 16 biswas land of khasra no. 568 including suit land from Diwan Chand and since then the defendants are owners in possession thereof and prior to them their vendor Diwan Chand was in exclusive possession thereof. Various other pleas were also raised. Learned Civil Judge (Senior Division), Panchkula vide judgment and decree dated 27.2.2009 decreed the plaintiff's suit. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Panchkula vide judgment and decree dated 19.8.2009 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, the plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that possession of plaintiff's grand-father Roor Singh is recorded over 3 bighas of land comprised of khasra no. 568 min in jamabandi for the year 1989-90 Ex. P3 and the same continued in khasra girdawari upto 1995 but thereafter there was change in the revenue entries vide report roznamacha no. 326 and defendants' vendor Diwan Chand was then recorded in possession of entire 7 bighas 16 biswas land of khasra no. 568 but the said change was Regular Second Appeal No. 3983 of 2009 -3- unauthorised. It was submitted that plaintiff's suit is for permanent injunction only and therefore, the plaintiff being in possession of the suit land is entitled to injunction prayed for and the lower appellate court committed error and illegality in deciding the question of title and validity of sale deed set up by the defendants. On the contrary, learned counsel for the respondents/defendants contended that Sub Divisional Magistrate vide inquiry/status report dated 8.10.2002 Ex. D8 found the defendants to be in actual possession of the suit land. It was also submitted that even revenue entries recorded possession of defendants' predecessor Diwan Chand over the suit land and subsequently the possession of the defendants themselves and therefore, the defendants are proved to be in possession of the suit land and plaintiff was not in possession thereof. I have carefully considered the rival contentions. In jamabandi for 1989-90, plaintiff's grand-father Roor Singh was depicted to be in possession of 3 bighas of khasra no. 568 whereas one Atma Singh was recorded to be in possession of the remaining 4 bighas 16 biswas land of khasra no. 568. As is apparent from the temporary injunction orders, these entries continued in khasra girdawari till 1995. However, thereafter there was change in revenue entries depicting the possession of defendants' vendor Diwan Chand over the entire land of khasra no. 568 measuring 7 bighas 16 biswas. Defendants have miserably failed to depict as to on what basis the said change took place. Report roznamacha Patwari No. 326 regarding the said change has not been produced in evidence. Regular Second Appeal No. 3983 of 2009 -4- Consequently, the said change was unauthorised. There is presumption of continuity of possession. Consequently, it is presumed that plaintiff continued in possession of 3 bighas land out of the suit land and not over 3 bighas 18 biswas as claimed by the plaintiff. Subsequent khasra girdawari of the year 2002-03 referred to by counsel for the defendants carries no weight when initial change in favour of defendants' vendor Diwan Chand was unauthorised. Report of Sub Divisional Magistrate has been erroneously relied on by the lower appellate court to hold the possession of the defendants over the suit land. Said report was obtained during pendency of the suit. It is the function of the civil court to determine as to which party is in possession of the suit land. Any opinion/report by Sub Divisional Magistrate on this issue would carry no probative value. In addition to it, concerned Sub Divisional Magistrate who made the said report has not been examined as witness by the defendants so as to afford opportunity to the plaintiff for cross-examination of the said witness and to test the veracity of his opinion. On the contrary, parties had to lead evidence in the civil suit in support of their respective versions. Any finding recorded by the Sub Divisional Magistrate during the pendency of the suit cannot be relied on to determine the question of possession of either party over the suit land. Learned lower appellate court also went wrong in deciding the validity of sale deed set up by the defendants and consequently in determining the question of ownership over the suit land. The suit being simple suit for permanent injunction, the question of title or validity of the Regular Second Appeal No. 3983 of 2009 -5- sale deed was not required to be adjudicated upon. It may, however, be added that plaintiff as well as defendants are vendees from co-sharers and therefore, their rights would be subject to partition of joint land. For the reasons aforesaid, I find that plaintiff is proved to be in possession of 3 bighas land out of 3 bighas 18 biswas claimed by the plaintiff. Consequently, the plaintiff is entitled to permanent injunction regarding said 3 bighas land. Finding of the lower appellate court to the contrary is patently erroneous and illegal and is based on misreading and misappreciation of evidence and is, therefore, not legally sustainable. Substantial question of law to this effect arises for adjudication in the instant second appeal and the same is answered accordingly. For the reasons aforesaid, the instant second appeal is allowed and judgment and decree passed by the lower appellate court are set aside and judgment and decree passed by the trial court are modified and the suit filed by the plaintiff is decreed partly for permanent injunction restraining the defendants from interfering in possession of the plaintiff over 3 bighas land out of suit land measuring 3 bighas 18 biswas, except in due course of law. ( L.N. Mittal ) March 15, 2011 Judge 'dalbir'