R.S.A. No. 1509 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1509 of 2009 (O&M) Date of Decision : 27.4.2009 Ran Singh & another .......... Appellants Versus Bachna & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vivek Suri, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 13.2.2009, passed by the learned Courts below, vide which suit filed by the plaintiffs, seeking permanent injunction, restraining the defendants, from interfering into the peaceful possession of the plaintiffs, over the land bearing khewat / Khatauni No. 68 min/160, Khasra No. 307 min (2-6), Khewat / Khatauni No. 68 min/161, Khasra No. 307min(0-5), situated at village Gardian, Tehsil Kalka, District Panchkula, as per the jamabandi for the year 1991-92, Hadbast No. 126. The case set up by the plaintiff / appellants was, that they were owners in possession of the land in dispute, which was purchased vide certificate of sale dated 18.8.1961. The land was purchased by the father of R.S.A. No. 1509 of 2009 2 the plaintiffs. It was claimed, that defendants have no right, title or interest in the suit property, but they tried to interfere into the peaceful possession of the plaintiffs, hence the suit was filed. It was the case set up by the plaintiff / appellants, that they filed an application for correction of khasra / girdawari regarding the suit land before the A.C. IInd Grade, Kalka. The suit was contested, wherein a plea was taken, that defendant No.1 was owner and in possession of land measuring 0 bighas 5 biswas bearing Khasra No. 307 min, as the suit property was given to defendant No.1, during consolidation for 'awa', but that ' awa' has been shifted by defendant No.l near his residential house. The suit property was under cultivation of defendant No.1. The counter claim was also filed claiming declaration, that defendant No.1 was absolute owner in possession of the suit property. The learned Courts below have recorded a concurrent finding of fact holding, that though in the sale certificate land measuring 2 bighas and 11 biswas was sold to the father of the plaintiffs, but they were owner in possession of only 2 bighas 6 biswas out of total property. However, the case set up by the plaintiff / appellants was not proved by the documentary evidence i.e. jamabandi Ex. PW-3/B/D3, and khasra girdawari Ex. PW3/C/D1, wherein he was shown in possession of land, bearing Khasra No. 307 min measuring 2 bighas 6 biswas. The learned Courts also held, that the appellants had not challenged the order of allotting R.S.A. No. 1509 of 2009 3 the land in favour of defendants. Consequently, the suit filed by the plaintiff / appellants, has been ordered to be dismissed. The learned counsel for the appellants contends that the appeal raises the following substantial questions of law for consideration by this Court :- 1. Whether the judgment and decree passed by the learned Courts below can be sustained, as counter claim filed by the defendant / respondents has not been adjudicated or decided ? 2. Whether in absence of documentary evidence, with regard to the allotment of land measuring 0.5 biswas to respondent / defendants, could the relief claimed, be declined to the plaintiff / appellants ? In support of the first substantial question of law, the learned counsel for the appellants contends, that the judgments and decree passed by the learned Courts below are liable to be set aside, as under Order 8 Rule 6 of the Code of Civil Procedure, it was incumbent upon the Court, to have adjudicated the counter claim, and dispose of the same along with the suit filed by the plaintiff / appellants, and once there was violation of provisions of the Code of Civil Procedure, the impugned judgment and decree cannot be sustained. The contention raised by the learned counsel for the appellants R.S.A. No. 1509 of 2009 4 cannot be accepted. As the grievance, if any, is with the defendant / respondents and not with the plaintiff / appellants. The counter claim is a separate suit for all intents and purposes and, therefore, the appellant / plaintiffs cannot draw any benefit on the ground that the counter claim was not decided. The learned counsel for the appellants in support of the second substantial question of law, as raised, contends that once the defendant / respondents had failed to prove the allotment of land measuring 0.5 Biswas, it was not open to the learned Courts below to have non-suited the plaintiff as the sale certificate showing purchase of disputed land was duly proved on record. This contention of the learned counsel for the appellants cannot be accepted. It is well settled law that the plaintiff is required to stand on his own legs and cannot draw any benefit from the weaknesses of the case of the defendants. The plaintiffs filed a simple suit for injunction claiming themselves to be in possession. However, the evidence produced on record did not support the case set up by the plaintiffs. In the revenue record the possession of the defendant / respondents over o.5 Biswas was duly recorded and proved. It is pertinent to notice here that the application moved by the plaintiff / appellants for correction of khasra / girdawari by claiming revenue entries to be wrong also stood rejected by the Assistant Collector IInd Grade and the said order has also attained finality. The finding recorded by the learned Courts below on appreciation of evidence, R.S.A. No. 1509 of 2009 5 therefore, cannot be faulted with and the substantial questions of law, raised by the learned counsel for the appellants, therefore, deserve to be decided against the appellants. No merit. Dismissed. 27.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE