RSA No.3502 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.10440-C of 2008 CM No.10441-C of 2008 & RSA No.3502 of 2008 Date of Decision:06.11.2008 Mela Singh ....appellant Versus Gurmail Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Sanjay Gupta, Advocate for the appellant **** RAKESH KUMAR GARG J. CM No.10440-C of 2008 For the reasons recorded in the application delay of 1 day in filing the appeal is condoned. CM stands disposed of. CM No.10441-C of 2008 For the reasons recorded in the application delay of 72 days in refiling the appeal is condoned. CM stands disposed of. RSA No.3502 of 2008 This is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby suit of the plaintiff-respondents for permanent injunction restraining the defendant from interfering in the peaceful and physical possession of the plaintiffs from the land in dispute has been decreed. RSA No.3502 of 2008 2 Briefly stated the averments contained in the plaint are that the plaintiffs are in peaceful and physical possession of the suit land which was allotted to them by the Central Government since 1952 in which they have placed agricultural implements and manure but the defendants having no concern with the suit land has threatened to interfere in the peaceful and physical possession on the suit land. The defendant was requested to admit the claim of the plaintiffs but he refused. Hence the necessity arose to file the present suit before the trial Court. In response to the notice issued by the trial Court, the defendant appeared and filed written statement contesting the suit of the plaintiffs inter alia on the grounds that the present suit is barred by the principle of resjudicata as the plaintiffs had filed earlier a similar suit with regard to the suit property against the brothers of the plaintiffs, titled as 'Gurmail Singh Vs. Baldev Singh and Amrik Singh which was dismissed as withdrawn vide order dated 20.8.1995; that the suit is not maintainable; that the plaintiffs are estopped from filing the present suit by their own acts and conduct; that the plaintiffs have no cause of action; that the plaintiffs have not come to the court with clean hands and as such, are not entitled to the injunction and that the civil court at Hoshiarpur has no jurisdiction to decide the present suit. On merits, it has been submitted that the suit land was never allotted to the plaintiffs and as such, they are neither owners nor in possession of the same. Amrik Singh brother of the defendant is owner in possession of the suit land. Since 1947 he has raised the construction of his house and boundary wall around the suit property. The plaintiffs had filed a civil suit against the brother of the defendant in respect of the suit land which was dismissed as withdrawn and present suit has been filed just to grab the suit property. The plaintiffs have no concern with the suit property. Remaining averments have been denied alleging the same to be wrong and the defendant accordingly, prayed for the dismissal of the suit RSA No.3502 of 2008 3 with costs. On conclusion of evidence and after hearing the counsel for the parties, the trial Court decreed the suit of the plaintiff-respondents. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant preferred an appeal which was also dismissed by the Additional District Judge, Hoshiarpur, vide judgment and decree dated 18.02.2008. Still dissatisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below. Mr.Sanjay Gupta, learned counsel for the appellant has vehemently argued that findings of the Courts below are absolutely against the evidence on record which has resulted into miscarriage of justice. Elaborating further, learned counsel for the appellant has argued that from the evidence brought on record by the present appeal as well as the report of the Local Commissioner Ex.DW2/C, it is amply clear that the property in dispute is part and parcel of property measuring 2 kanals which is the ownership as well as in possession of present appellant Mela Singh and his brothers Amrik Singh and Baldev Singh who have constructed two rooms on the eastern side of the property. The learned counsel has argued that the mere fact that the property in dispute is comprised in khasra number and is shown to be in possession of present respondent- plaintiffs in the Jamabandi Ex.P-1 as well as Girdawari Ex.P-2 will not make any difference as presumption of truth attached with the entries in the revenue record stood rebutted from the report of Local Commissioner Ex.DW2/C and it has been proved that the said entries are absolutely wrong and not as per the factual position at the spot. Thus the findings recorded by the Courts below are not sustainable in the eyes of law and are liable to be reversed. I have heard learned counsel for the appellant. I find no RSA No.3502 of 2008 4 merit in the arguments raised by the learned counsel for the appellant. The plaintiff-respondents have filed a suit for permanent injunction restraining the appellant from interfering in their peaceful and actual possession over the suit land and have proved the case from the entries in the revenue record i.e.Jamabandi for the year 1994-95 Ex.P-1 as well as khasra girdawari Ex.P-2 pertaining to the crops of Sauni 1995 to Sauni 1998 from which it stands established that the plaintiffs are not in cultivating possession of the suit property which is recorded to be the ownership of the Central Government. No doubt the presumption of truth attached to the entries appearing in the Jamabandi under Section 44 of the Punjab Land Revenue Act 1888, is rebuttable. But, in the instant case, there is no documentary evidence to establish that the entries are wrong. The Courts below on appreciation of evidence have recorded a finding of fact that evidence produced by the appellant is not sufficient to hold that the entries appearing in the Jamabandi or Khasra Girdawari are not as per the spot. The report of the Local Commissioner Ex.DW2/C has been ignored and disbelieved by the Courts below, correctly. The Local Commissioner has travelled beyond the scope and has even made observations with regard to the ownership of the disputed property. Undisputedly, the plot in dispute is recorded to be the ownership of the Central Government and in possession of the plaintiff-respondents in the revenue record. Whereas, the Local Commissioner has observed to the contrary without consulting the revenue record or Halqa Patwari. On the other hand, from the copy of Jamabandi Ex.P-1 and Khasra Girdawari Ex.P-2, coupled with the oral evidence brought on record by the plaintiff-respondents, it is abundantly clear that the plaintiff- respondents are in actual, physical and cultivating possession of the land in dispute. For the reasons recorded above, I find no merit in this RSA No.3502 of 2008 5 appeal. Even otherwise, whether the plaintiff is in possession of the suit land is a question of fact, which has been held to be in favour of the plaintiff-respondents by the Courts below on appreciation of evidence. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 06.11.2008 neenu