RSA No.1840 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1840 of 2007 Date of Decision: 31.1.2009 Gurbaj Singh & ors. ....appellants Versus Devi Chand & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Sanjiv Gupta,Advocate for the appellants Mr.Surinder Dhull, Advocate for respondent No.1. **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession as per their share shown in the revenue record has been decreed with costs and the defendants have been directed to hand over the vacant possession of the suit land within six months from the date of the judgment. Briefly stated the facts of the case as set up in the plaint are that the suit land is owned by plaintiff and proforma defendant Nos.2 to 7 being joint owners. The defendants are in unauthorized possession of the land. The defendants have been repeatedly requested by the plaintiff to hand over the possession of the suit land but they refused to do so. Hence the suit. In response to notice of the suit, defendant No.1 appeared and filed written statement taking various legal objections. On merits, defendant No.1 claimed himself to be the tenant over the suit land and it was stated that the Civil Court has got no jurisdiction to entertain and try RSA No.1840 of 2007 2 the present suit. All other allegations were denied as false and frivolous and it was prayed that the suit be dismissed with costs. Defendant Nos.2 to 7 filed written statement admitting the claim of the plaintiff. From the pleadings of the parties the trial Court framed the following issues: 1. Whether the plaintiff and proforma defendant No.1 to 6 are co-owners of the land as detailed in paras No.1 and 2 of the plaint and plaintiff is entitled to the possession of the suit land from the defendants? OPP 2. Whether the suit of the plaintiff is not maintainable?OPD 3. Relief. After hearing learned counsel for the parties and going through the material evidence and circumstances of the case, the trial Court decreed the suit of the plainitiff-respondent. Appeal filed by defendant No.1 was also dismissed by the Lower Appellate Court. Not satisfied, the defendant has filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellants has vehemently argued that no suit for possession can lie against a co-sharer for possession. In the instant case, admittedly, plaintiff-respondent has sought decree for possession against the co-defendants and as such the suit was not maintainable. It was further argued that it was the consistent stand of the appellants that there exists relationship of landlord and tenant, therefore, the suit was not maintainable. On the basis of the aforesaid argument, learned counsel for the appellants submitted that the following substantial question of law arises in this appeal: 1. Whether once there exist entries showing tenancy still a suit can be maintained in civil court for possession? RSA No.1840 of 2007 3 I have heard learned counsel for the appellants. The arguments raised by the learned counsel for the appellants is misconceived. The defendant-appellant claimed himself to be a tenant of the suit land. Undisputedly, there was earlier litigation between the plaintiff and the Gram Panchayat with regard to the land in dispute which culminated into RSA No.1502 of 1979(Ex.P-5) in which it has been ultimately held by this Court vide judgment dated 06.01.1995 that the plaintiffs were owners in possession of the suit land in the year 1995. There is not an iota of evidence on record from which it can be established that there exists a relationship of landlord and tenant between the appellants and plaintiff-respondent. The stray entry in the name of appellants in the year 1994-95, where the appellant has been shown as gair marusi or payment of Rs.4660/- as Lagaan cannot be relied upon without any proof of tenancy. The Courts below on appreciation of evidence have recorded a finding of fact against the appellants. No infirmity or illegality has been shown to be there in the aforesaid findings. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 31.01.2009 neenu