RSA No.3516 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3516 of 2007 Date of Decision : 04.12.2008 Kashmir Singh ....Appellant VERSUS Mangat Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present:- Mr. Dheeraj Narula, Advocate RAKESH KUMAR JAIN J. The plaintiff is in second appeal against the judgment and decree of both the courts below, whereby, his suit for permanent injunction restraining the defendant from interfering in his possession of land measuring 38 kanals 8 marlas comprised of khewat no.294, khatoni no.743, rectangle no.50, killa no.6(8-0) 15(8-0) 16(8-0) 24/2(6-8) 25/(8-0) situated in village Dona Mattar, Tehsil & Distrist Ferozepur has been dismissed. The case set up by the plaintiff is that the suit land is in the ownership of the Provincial Government but he has been in possession of the same since long. Earlier one Haru Singh s/o Bagha Singh resident of village Dona Mattar was in possession of the suit land who delivered the possession to the plaintiff and an affidavit in that respect was executed by Haru Singh on 21.08.2000. It is alleged that the plaintiff is in cultivating possession of the land in dispute and the defendant who has no concern RSA No.3516 of 2007 -2- with the suit land has been threatening the plaintiff in order to interfering in his possession. After notice, the defendant appeared and contested the suit. Besides taking preliminary objections about the maintainability of the suit and locus standi, it was pleaded on merit that defendant is in possession of the suit land under the Provincial Government. The revenue record stands in the name of the defendant. The possession of the suit land was transferred vide rapat no.592 dated 08.04.2003, which was entered on the basis of the order dated 24.03.2003 passed by AC II grade. The affidavit dated 21.08.2000 allegedly executed by one Haru Singh is false and fabricated. The plaintiff filed replication in which the averments made in the plaint were reiterated and those of the written statement were denied. Following issues were framed by the learned trial court:- 1. “Whether plaintiff is in possession of the suit property, if so under what capacity? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether plaintiff has no cause of action and locus standi to file the present suit? OPD. 4. Relief.” The learned trial court took up all the issues together and came to the conclusion that the plaintiff is not in possession of the suit property and as such the suit was not found to be maintainable as also no cause of action and locus standi was found in favour of the plaintiff to file the suit. Similarly, in the first appeal, it was observed as under:- “9. The only question involved for determination in this appeal is regarding possession over the suit property. Admittedly the suit property was originally in possession of Haru Singh DW1. As per the case set up by the appellant RSA No.3516 of 2007 -3- plaintiff aforesaid Haru Singh had delivered possession of the same to him after receiving a sum of Rs.1,50,000/- vide receipt dated 21.8.2000 Ex.P2. Aforesaid Haru Singh was also stated to have furnished an affidavit dated 21.8.2000 to that effect showing having delivered possession of the land in dispute to the the appellant plaintiff. The appellant plaintiff did not examine the said Haru Singh. He had stepped into the witness box as a witness of the respondent defendant. In his testimony made as DW1 by way of an affidavit Ex.DW1/A, he had stated that he was in possession of the land in dispute and had handed over its possession to Mangat Singh respondent defendant in the year 2000. He had specifically denied having executed any affidavit dated 21.8.2000 in favour of the appellant plaintiff or his having delivered possession of the suit land to him. The appellant plaintiff was stated to have no connection or concern with the land in dispute. During the course of trial an effort was made to get thumb impression of Haru Singh on the disputed affidavit Ex.P1 examined and compared from an Hand writing and Finger print expert with his specimen thumb impression. Such application was moved before the learned trial court but was not pressed. Similar application was moved before this court, which was dismissed vide orders dated 16.03.2007. 10. Even if for arguments sake the said affidavit is admitted to be bearing the thumb impression of Haru Singh the question is whether such an affidavit can be admitted in RSA No.3516 of 2007 -4- evidence for upholding the contention of the appellant plaintiff that he was given possession of the land in dispute by aforesaid Haru Singh. The learned trial court has rightly noted that as per the provisions of Section 17 of the Indian Registration Act if any property is transferred for an amount more than Rs.100/- it can only be done through a registered instrument and according to Section 49 of Registration of Act, the document which requires compulsory registration cannot be taken into consideration if not registered. That being so the affidavit Ex.P1 is not admissible in evidence. Ruling out this affidavit from consideration there is nothing on the record to prove delivery of possession over the land in dispute by Haru Singh to the appellant plaintiff, simply on the basis of his oral assertions and oral evidence. His contention cannot be upheld and the learned trial court has rightly held so while determining issue no.1. Once he is proved to have failed established his possession over the land in dispute, he has no locus standi or cause of action to file the suit and the suit filed by him is not maintainable.” The learned counsel for the appellant has vehemently argued that concurrent findings of the courts below are result of misappreciation of the evidence available on record but he could not point out as to which evidence has been misread by the courts below by which it could be proved that the plaintiff is in possession and not the defendant. In view of the concurrent finding of fact recorded by both the courts below that the plaintiff is neither the owner nor in possession of the RSA No.3516 of 2007 -5- suit property and the fact that no question of law much less substantial has been raised to be adjudicated by this Court, I do not find any merit in the present appeal and the same is hereby dismissed with no order as to costs. 04.12.2008 (RAKESH KUMAR JAIN) ashish JUDGE