Regular Second Appeal No. 4161 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4161 of 2009 Date of decision : August 12, 2010 Jagjit Singh ....Appellant versus Rajwant Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RS Ahluwalia, Advocate, for the appellant L.N. Mittal, J. (Oral) Jagjit Singh defendant no. 3 has filed the second appeal having lost in both the courts below. Plaintiff-respondent Rajwant Singh filed suit against Jagjit Singh appellant as defendant no. 3 and against his father Gurnam Singh and brother Manjit Singh as defendants no. 1 and 2 alleging that the plaintiff is in possession of the suit land measuring 6 kanals 12 marlas having taken the same on lease from Karam Singh (brother of defendant no. 1 and uncle of defendants no. 2 and 3) vide Pattanama dated 7.3.1985 and since then the plaintiff is in possession of the suit land. Defendants tried to dispossess the plaintiff from the suit land forcibly and threatened to dispossess him in future. Consequently, the plaintiff sought permanent injunction restraining Regular Second Appeal No. 4161 of 2009 -2- defendants from dispossessing the plaintiff from the suit land and from interfering in his possession thereof. Defendants, inter alia, pleaded that the suit land was owned by Chanan Singh father of defendant no. 1 and grand father of defendants no. 2 and 3 and in view of his Will dated 15.3.1982, defendants no. 2 and 3 have become owners in possession of the suit land. Karam Singh son of Chanan Singh never came in possession of the suit land and therefore, he could not give its possession to the plaintiff. It was denied that the plaintiff is in possession of the suit land. It was also pleaded that aforesaid Karam Singh and others had filed a suit for declaration and also sought relief of possession and it would depict that Karam Singh himself was not in possession of the suit land. In that suit, Karam Singh also made statement admitting that he and his other two brothers Major Singh and Gurmail Singh had no concern with the suit land in view of Will dated 15.3.1982 which was admitted to be genuine. Learned Civil Judge (Junior Division), Batala vide judgment and decree dated 22.9.2001 decreed plaintiff's suit restraining defendants from interfering in plaintiff's possession over the suit land and from dispossessing him therefrom except in due course of law. First appeal, preferred by defendant no. 3 has been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 14.5.2009. Feeling aggrieved, defendant no. 3 has preferred the instant appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that Regular Second Appeal No. 4161 of 2009 -3- Karam Singh filed suit on 18.11.1995 seeking declaration and consequential relief of possession implying that he was not in possession of the suit land. Karam Singh also made statement in that suit admitting the Will by Chanan Singh in favour of defendants no. 2 and 3. The contention cannot be accepted because any action of Karam Singh after having handed over possession to plaintiff would not bind the plaintiff. The plaintiff had come in possession of the suit land pursuant to Pattanama dated 7.3.1985. Consequently, any suit filed by Karam Singh 10 years thereafter would not adversely effect the rights of the plaintiff-respondent. On the contrary the plaintiff has duly proved the Pattanama dated 7.3.1985 executed by Karam Singh whereby he leased out the suit land to the plaintiff and gave its possession to him. It is significant to notice that aforesaid Pattanama was witnessed by Gurnam Singh defendant no. 1 who is father of defendants no. 2 and 3. If Karam Singh had not been in possession of the suit land and had not given its possession to the plaintiff, there is no reason why Gurnam Singh would have witnessed the said Pattanama. In this context, it is significant to notice that Gurnam Singh defendant no. 1 has not stepped into witness box and therefore, adverse presumption arises against the defendants. It may be added that all the defendants jointly contested the suit and there is no clash of interest between defendant no. 1 and his sons defendants no. 2 and 3. The defendant never challenged the aforesaid Pattanama and on the other hand, even the instant suit has been filed by the plaintiff on 9.9.1998. Thus, from the Pattanama which was witnessed by defendant no. 1 himself, it is established that plaintiff is in established possession of the suit land for Regular Second Appeal No. 4161 of 2009 -4- more than 13 years before the filing of the suit. In addition to the aforesaid, the plaintiff was also recorded to be in possession of the suit land in jamabandi Ex. P2 for 1997-98 (i.e. before the filing of the suit) and also in khasra girdawaris Ex. P3 from 1995 to 1998. These entries further corroborate the plaintiff's version that he is in possession of the suit land. Entry in jamabandi carries presumption of correctness which has not been rebutted. On the contrary, the said presumption has been strengthened by the entries in khasra girdawaris. It may be added that Assistant Collector vide order dated 26.3.1996, Ex. P4 ordered correction of khasra girdawari in favour of the plaintiff observing that the plaintiff has been in possession of the suit land for 5/6 years since the time of execution of the lease deed in his favour. Defendant no. 3 also while appearing in witness box admitted that application moved by the plaintiff for correction of khasra girdawari was allowed by the Assistant Collector and the said order has attained finality as no appeal or revision against the same was filed. It is, thus, apparent that even defendants were satisfied by the said order Ex. P4 holding the plaintiff to be in possession of the suit land. Defendant no. 3 appellant while appearing in the witness box also admitted execution of lease deed/mortgage deed by Karam Singh in favour of defendant no. 1 relating to 19 kanals land inherited from Chanan Singh. The said deed would also depict that Karam Singh was in possession of some land inherited from Chanan Singh. Gurnam Singh has not stepped into witness box to deny the aforesaid deed or to explain as to in what circumstances, the aforesaid deed was executed in his favour. It is Regular Second Appeal No. 4161 of 2009 -5- significant to notice that the aforesaid deed was witnessed by defendant no. 3 appellant himself. Thus, examined from any angle, it is manifest that the plaintiff is proved to be in established possession of the suit land and therefore, he cannot be dispossessed therefrom by the defendants except in due course of law. Injunction to this extent granted by the courts below does not suffer from any illegality. There is concurrent finding by both the courts below regarding possession of the plaintiff over the suit land. The said finding is based on appreciation of evidence and the same is not shown to be perverse or illegal so as to call for interference in second appeal. Learned counsel for the appellant contended that in view of admission of Will dated 15.3.1982 by Karam Singh, Karam Singh was not owner of the suit land and therefore, the plaintiff is tres-passer and no injunction could be granted in favour of the plaintiff/tres-passer against the defendants as defendants no. 2 and 3 owners of the suit land. The contention cannot be accepted. Karam Singh's subsequent admission of the Will in favour of defendants no. 2 and 3 would not effect the rights of the plaintiff. On the other hand, even if Karam Singh as ostensible owner in possession of the suit land gave it on lease to the plaintiff, the plaintiff cannot be dispossessed from the suit land except in due course of law even by defendants no. 2 and 3 who claim to be owners of the suit land. It may be added that neither in first appeal nor in the instant second appeal, defendants no. 1 and 2 have been impleaded even as proforma respondents. Consequently, decree of the trial court against defendants no. 1 and 2 had attained finality. Learned counsel for the Regular Second Appeal No. 4161 of 2009 -6- appellant contended that in view of Order 41 Rules 4 and 33 of the Code of Civil Procedure, first appeal could not be dismissed on the ground of non- impleadment of defendants no. 1 and 2 as party to the first appeal. In support of this contention, reliance has been placed on three judgments namely Punjab State Warehousing Corp. Chandigarh versus Janak Raj, 1994(3) PLR 160; Chandramohan Ramchandra Patil & Ors versus Bapu Koyappa Patil (dead) Thr. LRs. & Ors., 2003(2) RCR (Civil) 75 and Savitri Devi Daga & Ors. Versus Puranmall Goenka, 2006(2) ICC 127. However, in none of these judgments, facts were similar as appealing party had impleaded the remaining parties also in the appeals. However, counsel for the appellant is not able to point out that in any of the three said judgments, any party had been left out in appeal. However, I am not expressing any definite opinion on the contention whether the appeal can be dismissed merely on the ground of non-impleadment of defendants no. 1 and 2 because the appellant cannot succeed on merits. Even first appeal has been dismissed by lower appellate court on merits as well. For the reasons aforesaid, I find that no substantial question of law arises for determination in the instant second appeal. Concurrent finding of fact recorded by the courts below that the plaintiff is in established possession of the suit land is fully justified and supported by cogent reasons. The appeal is devoid of any merit and is accordingly dismissed in limine. ( L.N. Mittal ) August 12, 2010 Judge 'dalbir'