R.S.A. No. 3432 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3432 of 2008 Date of Decision: 10.07.2009 1. Tahir; 2. Tasaddak Hassan; both s/o Deen Mohd. Son of Jafru; 3. Shahid; 4. Sajid; both s/o Safee son of Jafru; 5. Safee Mohd. son of Jafru; 6. Sanjeeda widow of Maruff Hassan son of Deen Mohd., son of Jafru; all r/o Chandpur, Tehsil Jagadhri, District Yamunanagar. ... Appellants Versus 1. Nand Lal son of L. Jhandu Lal, r/o Ambala Road, Jagadhri, District Yamunanagar. ...Contesting Respondent 2. Tayyab Hussain son of Jarib Hassan; 3. Khalid son of Safee son of Jafru; all r/o Chandpur, Tehsil Jagadhri, District Yamunanagar. ... Proforma Respondents R.S.A. No. 3432 of 2008 2 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.S. Dinarpur, Advocate, for the appellants. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 28.01.2008, rendered by the Court of District Judge, Yamunanagar, vide which, it accepted the appeal, against the judgement and decree dated 07.12.2005, rendered by the Court of Civil Judge (Junior Division), Jagadhri, and decreed the suit for permanent injunction, filed by the plaintiff/respondent. 2. The facts, in brief, are that, one Jafru son of Karim Baksh, was the owner of a plot measuring (1 kanal – 8 marlas), comprising khasra No. 17//13, situated within the revenue estate of village Chandpur of district Yamunanagar. He sold the same to Sh. Om Parkash son of Bahadur Chand, vide registered sale deed, dated 01.12.1964. The aforesaid Om Parkash, further sold the said property, to Sh. Vipan Kumar, and Rajnish Kumar sons of Sulekh Chand, vide registered sale deed, dated 13.05.1981. It was stated that Vipan Kumar, and Rajnish Kumar, executed a lease deed, on 23.02.1998, in favour of the plaintiff/respondent, valid for a period of 99 years, in respect of the land, in dispute, and put him, in possession thereof. It was further stated that the plaintiff/respondent, then constructed a boundary wall, around the plot, and filled earth in it. It was further stated that the defendants/appellants, tried to take forcible possession of the land, in dispute. They were many a time, asked not to do so, but to no avail. On R.S.A. No. 3432 of 2008 3 the final refusal of the defendants/appellants, to resist from their nefarious designs, left with no other alternative, a suit for permanent injunction, was filed by the plaintiff/respondent. 3. The defendants/appellants, put in appearance, and filed written statement, wherein, it was stated by them, that Jafru son of Karim Baksh, was indeed owner of the land, comprising rectangle No. 17, khasra No. 13, measuring (1 kanal 8 marlas), situated within the revenue estate of village Chandpur of District Yamunanagar. It was denied that Jafru, had executed a sale deed, in favour of Om Parkash, on 01.12.1964. It was further stated that the sale deed, was a forged document. It was further stated that Om Parkash, had no right, to sell the property to Vipan Kumar, and Rajnish Kumar, who further had no right, to lease out the property, in favour of the plaintiff/respondent. It was denied, that the plaintiff/respondent, was ever put in possession of the property, in dispute. 4. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff is entitled to the injunction as prayed for? OPP ii) Whether the plaintiff has no locus standi to file the present suit? OPD iii) Whether the suit is not maintainable? OPD iv) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD v) Whether the plaintiff is estopped from filing the present suit? OPD vi) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court, dismissed the suit, R.S.A. No. 3432 of 2008 4 holding that, Vipan Kumar, and Rajnish Kumar, from whom, the plaintiff/respondent, took the land, in dispute, on lease, had only become co-sharers, to the extent of their share, in the joint holding, and they could not claim themselves to be exclusive owners in possession of the entire khasra No. 17//13. It was further submitted that, as such, the plaintiff/respondent, who was a lessee, could not be delivered exclusive possession by them. The trial Court held that the plaintiff was not entitled to the injunction. 6. Feeling aggrieved, an appeal was preferred by the plaintiff/respondent, which was accepted, by the Court of District Judge, Yamunanagar, vide judgement and decree dated 28.01.2008. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the defendants/appellants, and have gone through the documents, on record, carefully. 9. The Counsel for the defendants/appellants, submitted that, the trial Court, was right, in coming to the conclusion, that the plaintiff/respondent, was unable to prove his possession, in respect of the property, in dispute, and, as such, was not entitled to the injunction prayed for. He further submitted that the revenue record, nowhere established that, Om Parkash, Vipan Kumar, and Rajnish Kumar, as also the plaintiff/respondent, ever came in possession of the land, in dispute. He further submitted that the judgement and decree, passed by the Appellate Court, reversing the decree of the trial Court, was, thus, the result of complete non-application of mind, to the facts, circumstances, and evidence, on record. He further submitted that the Appellate Court, was also wrong, in R.S.A. No. 3432 of 2008 5 coming to the conclusion, that the sale deed, being more than 30 years old document, the same was not required to be proved, by summoning the attesting witnesses. He further submitted that the judgement and decree of the Appellate Court, being illegal, and perverse, was liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the defendants/appellants, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. Admittedly, Jafru, was the owner of khasra No. 17//13. The Appellate Court, was right, in holding, that the sale deed dated 01.12.1964, was more than 30 years old document and, thus, it was not required to be proved, by calling any attesting witness, as the execution thereof, was presumed under Section 90 of the Evidence Act. The sale deed dated 13.05.1981, executed by Om Parkash, in favour of Vipan Kumar, and Rajnish Kumar, was duly proved. Vipan Kumar, and Rajnish Kumar, leased out the property, in favour of Nand Lal, plaintiff/respondent, on 23.02.1998. Nand Lal, plaintiff/respondent, stated that, he constructed a boundary wall around the land, in dispute, immediately after taking the same, on lease. In para No. 4 of the written statement, the defendants/appellants, took up the plea, that they had raised construction over the disputed property. However, when Safi Mohd., DW1, son of Jafru, appeared, in the Court, he in no uncertain terms stated that, they did not raise any construction, over the land, in dispute, at any point of time. Similarly, Tasdu Hassan, DW2, testified that, no boundary wall, was ever constructed by them, at the spot, and the land, in dispute, was lying vacant. The property, in dispute, which was sold, in favour of Vipan Kumar, and Rajnish Kumar, was described by khasra no., as also the boundaries, in the sale deed. The same property, was R.S.A. No. 3432 of 2008 6 leased out, in favour of the plaintiff/respondent. The area, which was leased out, in favour of the plaintiff/respondent, measured 95 feet x 80 feet, and was also described by the boundaries. The Appellate Court, was, thus, right in recording the finding of fact, that the property, in dispute, was leased out, in favour of the plaintiff/respondent, by Vipan Kumar, and Rajnish Kumar; that the suit property, was described by boundaries; that the plaintiff/respondent, was put, in possession of the suit property, by Vipan Kumar, and Rajnish Kumar, as a lessee; that the plaintiff/respondent, raised boundary wall around the property, which was leased out, in his favour; that khasra No. 13, was bifurcated into small fragments, which necessarily included the fragments, sold by Jafru, in favour of Om Parkash, on 01.12.1964; that the plaintiff/respondent, was in possession of the property, in dispute, at the time of filing the suit; and that he was entitled to the injunction prayed for. The findings of fact, recorded by the Appellate Court, on the aforesaid points, are based, on the correct appreciation of evidence, and law, on the point, and warrant no interference. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 12. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed. 10.07.2009 (SHAM SUNDER) Amodh JUDGE