RSA No.1677 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1677 of 2010 (O&M) Date of decision: 8.9.2010 Suresh & others ......Appellant(s) Versus Gram Panchayat village Bari ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.R. Hooda, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.5044-45-C of 2010 Applications are allowed subject to all just exceptions. RSA No.1677 of 2010 This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for declaration with consequential relief of permanent injunction was dismissed. Brief facts of the case as averred in the plaint are that the plaintiffs are in actual cultivating possession of the suit land as Gair Marusi tenants on payment of Batai Tihai for the last more than 37/38 years. It was further pleaded that even though the plaintiffs were making payment of Batai Tihai to the Sarpanch of the respondent-Panchayat, however, no receipt in this respect was issued. The plaintiffs have already raised construction of tubewell and three houses over the suit land. They had also placed Bitoras over the suit land and were using the place for tethering of cattle. It was pleaded that even though the plaintiffs were in continuous possession of the suit land for the last many years, no ejectment petition was filed against them qua the said land at any point of time. Even otherwise, no proceedings regarding correction of Girdawaris of suit land RSA No.1677 of 2010 (O&M) 2 were initiated but now the plaintiffs have come to know that Sarpanch of the respondent-Panchayat in collusion with the revenue officials have got the entries changed with respect to land measuring 30 kanals 11 marlas comprised in Rectangle and Killa Nos.67/10/2(1-18), 11(7-12), 20(7-12), 21/2 (7-9) and 68/14(8-0) in favour of Hari Parkash son of Jagan Nath whereas he had never been in possession of the said land. Even though entry in the column of possession with regard to suit land comprised in Rectangle and Killa No.68/14(8-0) stood entered in the name of the plaintiffs as per jamabandi for the year 1992-93 but in the Jamabandi for the year 1997-98, Sarpanch of the respondent-Panchayat got incorporated entry in the revenue record qua said land in favour of Gram Panchayat. It was further pleaded that even though in the revenue record, Panchayat has been shown in possession of the suit land but the said entries were made without any notice to the plaintiffs, which is illegal. It was further pleaded that despite the request made to the respondent to get the said entries rectified, instead of admitting the claim of the appellants, respondent-Panchayat was bent upon to take forcible possession of the suit land from the plaintiffs and further wanted to lease it out to third person. Thus, necessity arose to file the instant suit. Upon notice, the respondent appeared and filed written statement raising various preliminary objections. On merits, it was contended that the plaintiffs never remained in cultivating possession of the suit land and the entries occurring in the revenue record in their names qua suit land were stray entries and thus, have no resemblance to truth as the plaintiffs never remained in possession. Thus, question of issuance of any receipt to them by the respondent did not arise at all. It was further averred that the entries in the revenue record qua suit land were changed in the name of Hari Parkash as per existing state of affairs over the suit RSA No.1677 of 2010 (O&M) 3 land. Gram Panchayat was leasing out the suit land to various cultivators from time to time. At present, the defendant-Panchayat was in actual physical possession of suit land as owner. Thus, question of taking forcible possession of suit land from the plaintiffs does not arise. Dismissal of the suit with special costs was prayed. No replication was filed. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiffs are in actual physical possession of the suit land as detailed in para No.1 of the plaint, therefore, the entries recorded in the name of the Gram Panchayat is illegal, wrong and liable to be corrected in favour of the plaintiffs?OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form? OPP 3. Whether the plaintiffs have no cause of action to file the present suit? OPD 4. Whether the Civil Court has no jurisdiction to entertain and try the present suit? OPD 5. Relief.” The trial Court after appreciating the pleadings as well as evidence led on record and hearing learned counsel for the parties dismissed the suit vide judgment and decree dated 14.11.2009. Feeling aggrieved therefrom, the plaintiffs filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 27.2.2010. While dismissing the appeal, the Lower Appellate Court observed as under:- “Apart from ocular evidence as detailed above, a careful RSA No.1677 of 2010 (O&M) 4 scrutiny of documentary evidence as led on the record at the instance of plaintiffs is quite relevant. In terms of initial Jamabandi (Ex.P-1) qua suit land pertaining to the year 1956, reveals that Panchayat Deh of village Bari has been shown as owner-in-possession of land comprised in Rectangle and Killa Nos.67/10/2, 67/11, 68/14 and 25/1 whereas Suraj Mal son of Khushia has been shown as Gair Marusi in possession qua land comprised in Rectangle and Killa Nos.67/20 and 21. In terms of said Jamabandi, plaintiffs are not shown in possession of said land. As per Jamabandi for the year 1958-59 (Ex.P-2), Makbooja Panchayat Deh has been shown as owner-in-possession of land comprised in Rectangle and Killa No.67/10/2 whereas Jagan son of Kehri son of Hansa has been shown in possession over land comprised in Rectangle and Killa Nos.67/11, 20, 68/14 and 25/1 and further Suraj Mal son of Khushia has been shown in possession over land comprised in Rectangle and Killa No.67/21. Above said position as detailed above has been reiterated in the Jamabandi for the year 1962-63 (Ex.P-3). At this juncture, it is relevant to point out here that admittedly plaintiffs namely Deep Chand, since deceased and Lal Chand are the sons of Chhota son of Hansa and, thus, they are not the sons of Jagan son of Kehri. Even though plaintiffs have made an effort to connect themselves with the person named Hansa as their grandfather but in terms of entries occurring in the revenue record i.e. Jamabandis for the RSA No.1677 of 2010 (O&M) 5 years 1958-59 and 1962-63 Ex.P2 and Ex.P3 respectively, plaintiffs have failed to connect themselves either with Jagan or with Kehri. In this view of the matter, plaintiffs have not been able to show their nexus with the suit land up to the year 1962-63. It is pertinent to mention here that in terms of Jamabandi for the year 1967-68 (Ex.P-4), for the first time names of plaintiffs namely Deepa, since deceased and Lal Chand occurred in the revenue record pertaining to suit land wherein they have been shown as Gair Marusi in possession of said land on payment of batai tihai in favour of Panchayat Deh. In this view of the matter, plaintiffs have failed to bring on the record as to how and in what manner their names occurred as Gair Marusi in possession over the suit land in the year 1967-68 especially in view of the fact that they are not sons of Jagan son of Kehri who previously was shown as Gair Marusi in possession over the said land. In the latter Jamabandi for the year 1972-73 (Ex.P-5), plaintiffs have been shown as Gair Marusi in possession of suit land under the ownership of Panchayat Deh on payment of batai tihai and the said entries continued up to the year 1987-88 as the same is evident from Jamabandi for the year 1987-88 Ex.P-8. Even though in the plaint, plaintiffs have categorically pleaded that they have been making payment of batai tihai qua possession over the suit land to the Sarpanch of defendant-Panchayat but latter had never issued any receipt in that regard. However, PW-1 RSA No.1677 of 2010 (O&M) 6 Lal Chand (plaintiff No.2) when examined in the Court has given altogether different version with respect to payment of batai tihai in favour of defendant-Panchayat. As mentioned earlier PW-1 Lal Chand has categorically stated that he had been obtaining receipts of payment of batai tihai from defendant-Panchayat for the last forty years but the copies of said receipts have not been attached with the file. In this view of the matter, plaintiffs have led evidence beyond pleadings. It is quite well settled that no amount of evidence led beyond pleadings can be taken into consideration. On the other hand, defendant-Panchayat in its written statement has categorically contended that since plaintiffs never remained in possession of suit land, thus, question of issuance of any receipt of payment of batai tihai by the defendant-Panchayat in favour of plaintiffs did not arise at all. As defendant-Panchayat is a statutory body, question of parting with the land of Panchayat in favour of third person on payment of batai tihai does not arise at all. It is pertinent to mention here that PW-1 Lal Chand has categorically admitted that defendant- Panchayat had been leasing out suit land on yearly basis and this fact finds corroboration from entries occurring in the revenue record i.e. Jamabandi for the year 1992-93(Ex.P-9) and in terms of which Hari Parkash son of Jagan Nath has been shown as Gair Marusi in possession of suit and measuring 30 kanals 11 marlas on payment of Rs.15,000/- i.e Chakota Saal RSA No.1677 of 2010 (O&M) 7 Tamam. In terms of Jamabandi for the year 1997-98 (Ex.P-10) Gram Panchayat, Bari through lease holder has been shown in possession of suit land. Further above said position has been reiterated in the Khasra Girdawari (Ex.P-15) for the year 1998 onwards. Once in terms of entries occurring in the revenue record pertaining to suit land, Gram Panchayat through lease holder (pattedar) has been shown in possession of said land and that too from the year 1997-98 onwards, the fact that PW-1 Lal Chand has categorically admitted that defendant-Panchayat had been leasing out suit land on yearly basis, the fact that there is nothing on the record to depict that plaintiffs had ever made any payment of batai tihai qua suit land in favour of defendant- Panchayat and the fact that no application was ever moved at the instance of plaintiffs for correction of entries occurring in the revenue record qua suit land in their favour before the revenue authorities despite the fact that their names were discontinued in the revenue record w.e.f. year 1992-93 onwards, thus, in this view of the matter, it can be conveniently held that plaintiffs have utterly failed to prove their possession over the suit land at the time of institution of the suit i.e. in the year 2003. It is quite well settled that no injunction can be granted against true owner. In this scenario once plaintiffs have failed to prove that entries occurring in the revenue record qua suit land favouring defendant-Gram Panchayat are illegal and the fact that even otherwise RSA No.1677 of 2010 (O&M) 8 plaintiffs have failed to prove their possession over the suit land at the time of institution of suit, thus, for the said reason alone, learned trial Court has rightly dismissed the claim of the plaintiffs.” Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal: “(i) Whether the tenants in old cultivating possession recorded as Gair Marusi in the jamabandies can be ejected from the suit land without following due process of law? (ii) Whether for correction of revenue entries incorporated in the jamabandies the application lies before the revenue authorities or not? (iii) Whether for correction of revenue entries incorporated in the jamabandies the declaratory civil suit before Civil Court is proper remedy? (iv) Whether the person in old cultivating possession over the suit land can be dispossessed and non-suited from the suit land without following due course of law? (v) Whether the impugned judgments and decrees of both the ld. Courts below are perverse to the evidence available on file of the case? (vi) Whether both the ld. Courts below have misread the documents and misconceived the evidence while delivering the impugned judgments and decrees? (vii) Whether the findings of the ld. Lower Appellate Court and that of ld. trial Court are based on no RSA No.1677 of 2010 (O&M) 9 evidence and hypothetical considerations? (viii) Whether the impugned judgments and decrees of both the ld. Courts below are liable to be set aside?” In support of this appeal, learned counsel for the appellants has vehemently argued that the Courts below have erred in holding that the appellants are not in possession of the suit land, as the aforesaid findings stood falsified by the documentary evidence Ex.P-4 to P-8 wherein the appellants and their ancestors have been recorded in cultivating possession over the disputed land as Gair Marusi. Moreover, it has been established on record that the appellants have constructed three houses, tube well etc. in disputed land and in view of the overwhelming oral as well as documentary evidence showing the possession of the appellants over the disputed land, the impugned judgment and decrees being absolutely perverse are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. Having due regard to the contentions of the learned counsel for the appellants, it may be noticed that in the present case, the matter in controversy revolves around the fact “as to whether the plaintiff-appellants are in actual cultivating possession of the suit land as Gair Marusi tenants on payment of Batai Tihai in favour of the respondent-Panchayat or not” Revenue record pertaining to the suit land with effect from the year 1956 vide Ex.P-1 to Ex.P-3 reveals that Panchayat Deh of village Bari is owner in possession of the suit land whereas Suraj Mal son of Khushia and Jagan son of Kehri son of Hansa have been shown in possession over the suit land. In terms of the said jamabandies, the appellants are not shown in possession of the said land. The Courts below have recorded a finding of fact that the RSA No.1677 of 2010 (O&M) 10 plaintiffs have failed to connect themselves with the aforesaid persons who are shown to be in possession of the suit land and in this view of the matter, the plaintiffs were unable to show their nexus with the suit land upto the year 1962-63. No doubt, the name of the appellants, in the jamabandi for the year 1967-68 appeared, in the revenue entries for the first time as Gair Marusi on payment of Batai Tihai; however, the appellants failed to bring on record as to how and in what manner they came into possession. No doubt, these entries continued upto the year 1987-88 as is evident from Jamabandi Ex.P-8. The appellants categorically pleaded that they were making payment of Batai Tihai qua possession over the suit land to the Sarpanch of respondent. No receipt was produced in this regard. Not only this, the appellant-Lal Chand while appearing as PW-1 categorically stated that he was obtaining receipts of payment of Batai Tihai from the defendant-respondent but the copies of such receipts were not attached with the file whereas the pleaded case of the appellants is that though they were making the payment of Batai Tihai but no receipts were issued in this regard. Thus, the evidence led by the appellants in this regard is beyond pleadings and cannot be taken into consideration. Not only this, PW-1 has also admitted that the defendant admittedly was leasing out suit land on yearly basis and this fact finds corroboration from the jamabandi for the year 1992-93 (Ex.P-9) wherein Hari Parkash has been shown as Gair Marusi in possession of suit land measuring 30 kanals 11 marlas on payment of Rs.15,000/-. In terms of Jamabandi for the year 1997-98, Gram Panchayat, Bari, through lease holder has been shown in possession of suit land. The aforesaid position has been reiterated. Counsel for the appellants was unable to refer to any evidence on record from which it can be inferred that since 1992-93 the RSA No.1677 of 2010 (O&M) 11 appellants ever came into possession of the suit land. There is not an iota of evidence on record to hold that the appellants were in possession over the suit land at the time of institution of the suit. Thus, in view of the aforesaid discussion, no fault can be found in the findings recorded by the Courts below whereby it has been held that the appellants have failed to prove their possession over the suit land at the time of institution of the suit i.e in the year 2003. The appellants have further failed to prove that the entries occurring in the revenue record qua suit land favouring the respondent-Gram Panchayat, are illegal. Not only this, it is settled proposition of law that the Appellate Court should not set aside the finding of fact and disturb the findings so recorded by the Court below even if two views are possible. Reference can be made to the judgment of the Hon'ble Supreme Court in Gurdev Kaur & others v. Kaki & others, 2007(1) SCC 546. Moreover, the question of possession is essentially a question of fact. The Courts below have recorded a finding of fact that on the day the suit was filed, the appellants were not in possession of the suit property. In the present case, the findings of fact regarding possession of the appellants is not recorded upon inadmissible evidence, nor any important evidence available on record had escaped from the notice of the Courts below. Thus, it cannot be held that the findings of the Courts below are perverse or incorrect. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. September 8, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1677 of 2010 (O&M) 12