RSA No.3143 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3143 of 1987 Date of decision 29.4.2011 Shubh Ram & Ors. Appellants v. Chandgi & Another. Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Sanjay Mittal,Advocate for the appellants Mr.Jaswant Jain,Advocate for the respondents .... JITENDRA CHAUHAN.J This regular second appeal has been filed against the judgment and decree dated 22.9.1987 passed by learned First Appellate Court, whereby the judgment and decree dated 29.10.1985 dismissing the suit, by the learned trial Court, were set aside. Umrao and Chandgi, sons of Mukh Ram respondent-plaintiffs filed a suit for permanent injunction, restraining the appellants-defendants from interfering in their possession of the agricultural land measuring 26 kanals 17 Marlas owned by Kishna Ram and under the cultivation of Umrao and Chandgi as tenants at-Will, situated within the revenue limits of Uchat, Tehsil and District Mahendergarh. The defendants contested the suit on the ground that change of khasra girdawaries is illegal and that the defendants are in possession of the land for the last 40-50 years, From the pleadings of the parties, the following issues were framed:- RSA No.3143 of 1987 2 1. Whether the plaintiffs are in possession over the suit land as Gair Marausi tenant? OPP 2. If issue No.1 is not proved, whether the defendants are in possession over the suit land as tenant?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is bad for misjoinder of necessary parties? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs have no cause of action?OPP 7. Relief The Ld.trial court decided issue Nos. 1 and 2 against the plaintiffs and held that the defendants are in possession of the suit land as tenants and have been paying rent of the suit land to the landlord . The learned trial court dismissed the suit of the plaintiffs. The Ld.Ist Appellate Court reversed the findings of the Ld.trial court and allowed the appeal filed by Chandgi,the plaintiff. Aggrieved against which, the respondent Shubh Ram,Mohan and Chandgi son of Sukh Ram have preferred this appeal, which was admitted on 5.1.1988. Learned counsel for the appellants submits that in the lower court, Umrao and Chandgi sons of Mukh Ram filed civil suit, which was dismissed in toto. Only Chandgi Ram son of Mukh Ram came up in appeal before Additional District Judge. The Ld. Ist Appellate Court decreed the suit in its entirety erroneously. Umrao did not prefer any appeal nor filed any cross objections and the judgment and decree qua Umrao became final. He argued that at the most, the Ist Appellate Court could have accepted the appeal of Chandgi only and partially RSA No.3143 of 1987 3 decreed the suit. He further argued that the learned Ist Appellate Court has overlooked the findings recorded by the revenue court in proceedings for correction of the khasra Girdawari. He submitted that Ld.Appellate Court has discarded the evidence produced by the appellant on the principles of presumption of continuity of possession. In support of his contentions, he placed reliance on Sohan Singh v. Jhaman, 1986(1) Punjab Law Reporter 326. On the other hand, learned counsel for the respondents controverted the submissions of the learned counsel for the appellants on the ground that the Ld.Ist Appellate Court righty reversed the findings of the ld. Trial court after going through the entire evidence produced on record. I have heard the learned counsel for the parties and perused the record. From the perusal of the record, it emerges that the learned trial court while dealing with issue Nos. 1 & 2, negated the contentions of the plaintiffs and held that the entries in the record of khasra girdwari stood corrected in favour of the defendants and decided this issue in their favour. While dealing with this issue, the ld. Ist Appellate Court observed that it is an elementary proposition that continuity of state of things established shall have to be presumed unless some evidence contrary to it was adduced. It was further observed that the Ld.trial court was not justified in assuming that with the correction of RSA No.3143 of 1987 4 khasra girdawari entries, the possession automatically stood changed. In the record of rights/jamabandi for the year 1973-74, Ex.D-5 and D- 6, the suit land was described to be in possession of the plaintiffs, concededly the entries till Rabi 1980 Ex.D-7 and D-8, were also to the effect that the land was under the cultivating possession of plaintiffs. The owners of the land were not made party in the proceedings for correction of the khasra girdawari. A person in possession was entitled to the protection of his possessory rights against anybody except the true owner. The Ld.trial court discarded the claim of the plaintiffs because they could not affirmatively establish the special relationship of tenancy claimed by them. The Ld.Ist Appellate observed that if the plaintiffs have no documentary evidence in the form of lease deed receipts showing payment of rent in proof of the plea of tenancy, it was no ground to reject their claim. It was further observed that defendants being neither the owners nor in any way concerned with the suit land had any business to interfere with the possessory rights being enjoyed by the plaintiffs. This Court has minutely gone through the documents. The Ist Appellate Court has rightly came to the conclusion that the plaintiff were in possession of the suit land. Once they are found to be in possession of the suit land, they are certainly entitled to the protection. They cannot be dispossessed from the suit land except in due course of law. Hence the Ld. Ist Appellate Court has rightly reversed the findings of the ld. Trial court and accepted the appeal filed by the Chandgi,son of Mukh Ram and decreed the suit in entirety. RSA No.3143 of 1987 5 The argument of learned counsel for the appellant that the relief granted by the Ist Appellate Court decreeing the suit in its entirety is erroneous, does not appeal to reason. Admittedly, Chandgi son of Mukh Ram, one of the plaintiffs filed the appeal, but the co- plaintiff Umrao did not file any appeal. It is settled law that if the court deem just and proper that the respondent in the civil appeal is entitled to any relief, certainly the court has the power to grant such relief to the respondent as well. There is no miscarriage of justice. Similarly situated person can be granted relief though the said person does not stand by the plaintiff or the appellant. So, the Ist Appellate Court was right in decreeing the suit in its entirety. Whether a particular person is in possession of the land or not is pure question of fact. It was noticed by Apex Court in Madvan Nair v. Bhaskar Pillai (2005) 10, S.C.C.533 as under:- “While interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even, if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble”. It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts RSA No.3143 of 1987 6 below, is confined only to the hearing of substantial question of law”. The appellant did not file any substantial question of law at the time of filing the appeal. However, at the asking of the Court, he filed the following question of law, claimed to have arises in the instant appeal:- “As to whether the Ist Appellate Court while decreeing the suit for permanent injunction in toto filed by the plaintiffs has mis-read the evidence on record.” However, on close scrutiny of the documents on record, this Court feels that no substantial question of law arises in this appeal. In view of the above, this Court do not find any ground to interfere with the well-reasoned findings recorded by the Ld.Ist Appellate Court. Hence,the regular second appeal filed by Shubh Ram, Mohan and Chandgi son of Sukh Ram, appellants fails and is dismissed. However, the judgment and decree passed by Ld. Ist Appellate Court are affirmed. (JITENDRA CHAUHAN) JUDGE 29.4.2011 MS Note:Whether to be referred to Reporter? Yes/No.