IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2175 of 2009 (O&M) Date of Decision: 26.5.2009 Harbhajan Singh. ....... Appellant through Shri Anil Shukla, Advocate. Versus Satnam Singh and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.6486-C of 2009 The application is allowed and the applicant-appellant is permitted to make the deficiency in court fee good. C.M.No.6487-C of 2009 For the reasons stated therein, the application is accepted and three days' delay in the filing of the appeal is condoned. C.M.No.6485-C of 2009 The application is accepted and Annexures A1 and A2 are taken on record. R.S.A.No.2175 of 2009 (O&M) -2- .... R.S.A.No.2175 of 2009 & C.M.Nos.6484-C and 6488-C of 2009 This Regular Second Appeal is directed against judgments and decrees dated 28.1.2006 and 4.2.2009 passed respectively by the Civil Judge (Junior Division), Jalandhar (referred to hereinafter as `the trial Court') and the Additional District Judge, Jalandhar (hereinafter described as `the First Appellate Court') whereby the suit of late Shri Amar Singh was decreed with costs and the appeal of defendants -Harbhajan Singh (appellant herein) and Avtar Singh was dismissed with costs. C.M.No.6484-C of 2009 has been moved for granting exemption from filing the certified copies of the grounds of appeal and the judgment of the trial Court as well as the annexures, whereas C.M.No.6488- C of 2009 has been filed for staying the impugned judgments and decrees. A suit for permanent injunction was preferred by Shri Amar Singh through his attorney- Satnam Singh (now respondent no.1) seeking to restrain the appellant and Avtar Singh, who were arrayed as defendant nos. 1 & 2, from interfering in his possession over the land of his share as detailed and described in the head note of the plaint. It was pleaded that he was owner in possession of the suit land and defendant nos. 3 to 7 (respondent nos. 7 to 11 herein) were owners in possession of the remaining ½ share and that they were cultivating the land as co-sharers. It was further pleaded that the appellant (he is one of the sons of Amar Singh) had filed as suit with false averments with regard to the land situated at village Jethpur to grab the property of Amar Singh, who was not impleaded as a party therein. It was averred that Amar Singh was residing in Canada and his R.S.A.No.2175 of 2009 (O&M) -3- .... land was being cultivated by Satnam Singh, his another son. It was further averred that the appellant and Avtar Singh (he is also son of Amar Singh) were threatening him and his son-Satnam Singh with dispossession and hence, the suit for permanent injunction was filed for restraining them to do so. No relief was claimed against respondent nos. 7 to 11. Upon notice, the appellant and Avtar Singh filed their written statement contesting the suit. It was pleaded that the land in dispute was ancestral and not the self-acquired property of Amar Singh and that they had a right in the same from birth. It was further pleaded that they were co- sharers and, therefore, no injunction could be granted against them. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to injunction as prayed for?OPP 2. Whether the suit is not maintainable?OPD 3. Whether Satnam Singh has no locus standi to file the present suit?OPD 4. Relief. After appraisal of the entire evidence on record, the trial Court concluded that Amar Singh was owner in possession of the land in dispute. While returning such a finding, it relied upon the entries recorded in the jamabandis. The suit was accordingly decreed with costs. It is pertinent to mention here that Amar Singh died during the pendency of the proceedings and his legal representatives prosecuted the R.S.A.No.2175 of 2009 (O&M) -4- .... suit. In appeal, the findings of the trial Court were affirmed by the First Appellate Court, which has resulted in the filing of this appeal by the appellant. It has been contended by the learned counsel for the appellant that the findings recorded by the Courts below have been arrived at by a complete misreading of evidence and, therefore, they are liable to b set aside. He further contended that the revenue entries in favour of the appellant have been ignored and that the reasoning adopted by the Courts below is unsustainable. According to the learned counsel for the appellant, the following questions of law arise for consideration of this Court:- 1. Whether the impugned judgments and decrees of both the courts below are perverse, illegal and against the evidence and facts on record? 2. Whether injunction can be granted against co-owner and the co-sharer? 3. Whether the order dated 4.2.2009 passed by the learned lower Appellate Court dismissing the application for additional evidence is illegal and is against law? I have thoughtfully considered the contentions of the learned counsel for the appellant and have gone through the impugned judgments. Satnam Singh, the son and attorney of Amar Singh, who had filed the suit, appeared as PW1 and testified before the trial Court about the ownership of his father qua the suit land and had also stated that this land R.S.A.No.2175 of 2009 (O&M) -5- .... was in his possession. He further stated that the disputed land measures 57 kanals and 17 marlas according to the jamabandi for the year 1994-95 (Exhibit P3). He also stated that out of this land, 54 kanals was being cultivated and about 2 kanals was gairmumkin. There is also on record evidence to show that prior to the filing of the instant suit, a civil suit had been filed by the appellant,who is also son of Amar Singh and real brother of Satnam Singh. In that suit, a prayer for injunction had been made which was declined by the trial Court and the appeal preferred by him was also dismissed and it is thereafter when Satnam Singh was confronted with dispossession, that the instant suit was filed. Avtar Singh, another son of Amar Singh, who was arrayed as defendant no.1 in the suit, appeared in the witness box as DW1 and admitted that he and the appellant had tried to dispossess Satnam Singh from the suit land. Further, khasra girdwari, Exhibit P4, shows the possession of Satnam Singh over the suit land. The appellant and Avtar Singh, on the other hand, had only produced the electricity bills- cum- receipts, Exhibits D3 to D10, which were issued by the Punjab State Electricity Board and photostat copies of the receipts, Exhibits D11 to D20, which do not enhance their case. It is to be noticed that the appellant and Avtar Singh had categorically set up a plea that they were co-owners and the suit land was ancestral. No evidence worth the name was led to establish these facts. On the contrary, there is evidence to show that Amar Singh was owner of the suit property and R.S.A.No.2175 of 2009 (O&M) -6- .... Satnam Singh was in its possession. In any eventuality, these are purely questions of fact which have been determined by the Courts below and no substantial question of law arises for consideration by this Court. The questions of law which have been formulated by the learned counsel for the appellant and have been reproduced hereinabove, do not arise in this appeal for the reason that there has been no misreading of evidence so as to hold that the findings recorded by the Courts below are perverse and warrant any interference. In so far as the question of grant of injunction against a co- owner and co-sharer is concerned, there is also no evidence from where it can be inferred that the appellant and Avtar Singh were co-sharers along with Amar Singh in the suit land. Similarly, the application under Order 41 Rule 27 of the C.P.C. which was moved by the appellant and Avtar Singh before the First Appellate Court was rightly declined as they had failed to show and satisfy the ingredients contained in the said provisions. They wanted to produce some revenue record, which was obviously within their knowledge, but they could not satisfy the First Appellate Court as to how they were prevented or precluded from doing so at the time of leading their evidence. Mere callous approach during the course of trial cannot necessitate the answering of the application under Order 41 Rule 27 of the C.P.C. in the affirmative unless the ingredients of the said provision are satisfied. In the result, the appeal is dismissed being devoid of any merit, R.S.A.No.2175 of 2009 (O&M) -7- .... whereas C.M.No.6484-C of 2009 is accepted and C.M.No.6488-C of 2009 is rejected. May 26,2009 ( Mahesh Grover ) “SCM” Judge