R.S.A.No.3267 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3267 of 2005 Date of Decision : 07.10.2009 Sital Singh ...Appellant Versus Jasminder Singh and another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. S.K.Garg, Advocate, for the appellant. Mr. H.S.Lalli, Advocate, for respondent No.1. HEMANT GUPTA, J. (ORAL) Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for permanent injunction to restrain the defendants from interfering in the land measuring 19 Kanals 2 Marlas, was decreed. As per the plaintiff, the aforesaid land was allotted to Jagat Singh on 8.1.1965 in a Government sale. Subsequently, Sucha Singh S/o Jagat Singh has executed sale deed dated 12.5.1992 in favour of the present plaintiff and one Shaminder Singh. Thus, the plaintiff claimed to be in possession of the land as a owner thereof vide aforesaid sale deed. The defendants denied the sale in favour of the plaintiff by successor-in-interest of Jagat Singh. The same was said to be fake and fabricated document. It was also alleged that Jagat Singh had never come forward during his life-time to take over possession of the property and the certificate of sale is fake document. R.S.A.No.3267 of 2005 2 The plaintiff proved sale deed dated 12.5.1992 Ex.P-2 and so also produced sale certificate Ex.PW-2/A. The plaintiff not only produced the sale deed and sale certificate, but also produced jamabandi in respect of his possession. On the basis of such documents, the learned trial Court decreed the suit holding the plaintiff to be owner and in possession of the same. The trial Court recorded that no revenue document has been produced by the defendants in order to show their ownership and possession over the suit property. Before the learned first Appellate Court, the defendants moved an application under Order 41 Rule 27 CPC so as to produce the mutation and the enquiry report conducted by the Collector, Jalandhar against the Patwari in respect of forged entries in the revenue record. The plaintiff- respondent also moved an application for additional evidence to produce original sale certificate. Though the application filed by the plaintiff was dismissed, but it was observed that since the photocopy of the sale certificate has already been exhibited on the record in the evidence of the plaintiff, the production of the original on the record would certainly do away the objections of the opposite counsel of non-production of original, if so raised during the course of arguments. On merits, the learned first Appellate Court found that the appellants have nothing to dispute with regard to the successor of Jagat Singh or correctness of sale deed dated 12.5.1992. On the basis of sale certificate and sale deed, the learned first Appellate Court held that the plaintiff is able to prove his ownership over the suit property. It was also found that the suit land being part of abadi deh is presumed to be in possession of its owner because even the possession of a vacant plot is R.S.A.No.3267 of 2005 3 presumed to be that of owner. The argument of the appellants that they are sowing fodder on a part of the suit land was found to be lacking in corroboration from the revenue record Exs.P-1 and D-1, which carries presumption of correctness. Learned counsel for the appellant has vehemently argued that the sale certificate dated 8.1.1965 has not been proved in evidence. In fact, sale certificate was exhibited in evidence as Ex.PW-2/A prior to setting aside of ex parte decree granted against the appellant. After the decree was set aside, the sale certificate has not been produced in evidence. Therefore, the reliance on the sale certificate by the Courts below is not tenable. However, I do not find any merit in the argument raised by the learned counsel for the appellant. In fact, the plaintiff-respondent had moved an application for additional evidence to produce original sale certificate on record during the pendency of appeal before the learned first Appellate Court. Such application was found to be not within the purview of Order 41 Rule 27, but it was also observed that the production of the original on the record would certainly do away the objections of the opposite counsel of non-production of original, if so raised during the course of arguments. In view of the said fact, once the original was produced on record alongwith an application for additional evidence, the same could have been taken into consideration by the leaned first Appellate Court and was rightly taken into consideration. The admission of the sale certificate in evidence has to be examined viz-a-viz the stand of the defendants-appellant. The defendant has not been able to prove his title over the suit property. In fact, he does R.S.A.No.3267 of 2005 4 not assert any such title in himself. He is claiming to be in possession of the same, but there is no revenue record to show that he is in possession of the same. Therefore, on the basis of the evidence produced by the plaintiff, the findings recorded by the Courts below, cannot be said to be suffering from and patent illegality or irregularity, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 07.10.2009 (HEMANT GUPTA) Vimal JUDGE