Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 Date of Decision 11.08.2009 Ajit and others ......Appellants VERSUS Dhup Singh ......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.R.K.Gupta, Advocate, for the appellants. Mr.Vivek Bhandari, Advocate, for respondent No.1-cross objector. ***** A.N.JINDAL, J(ORAL): Though the main Regular Second Appeal against the judgment and decree dated 02.03.1984, passed by Additional District Judge, Jind, has been dismissed being rendered infructuous, yet I stand to decide the cross- objection petition, filed by the plaintiff-respondent Dhup Singh (herein referred as the plaintiff). The case has a chequered history. The plaintiff/respondent Dhup Singh (herein referred as the plaintiff) filed a suit for permanent injunction, claiming himself to be a chakotedar at the rate of Rs.300/- per annum over the suit land and having installed a tubewell in the land in question from his own sources. He also claimed that Ajit Singh and Baljit Singh defendants-appellants (herein referred as the defendants) had also Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 2 agreed to sell the land to defendants No.3 to 5 and give them vacant possession. Consequently, all the defendants wanted to interfere in possession of the plaintiff by destroying the crops grown over the said land, consequently, the plaintiff had to file the suit for permanent injunction. Since defendant No.2 Ajit Singh had expired prior to the filing of the suit, therefore, his L.Rs. were brought on record. The said suit was contested by the defendants, denying the tenancy as well as the possession of the plaintiff over the suit land. This contest between the parties invited the Court to frame the following issues:- 1. Whether the plaintiff is a tenant over the suit land as alleged in para 3 of the plaint ? 2. Whether the defendants threatened to dispossess the plaintiff forcibly from the suit land ? 3. Whether the suit is not maintainable in the present form ? 4. Whether Smt. Sujani had died before the institution of the suit, if so, to what effect ? 5. Relief. The trial Court, after recording the evidence of the parties, dismissed the suit vide judgment dated 15.03.1982, against which the plaintiff preferred the appeal which was partly accepted with the observations that the plaintiff is not in possession as tenant but his status could be that of a licencee or trespasser. However, the appellate Court while accepting the appeal, decreed the suit for injunction restraining the defendants from dispossessing the plaintiff except in due process of law. It is worth noticing that against the said judgment dated 02.03.1984, passed by Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 3 the Additional District Judge, Jind, the defendants preferred a Regular Second Appeal whereas Dhup Singh plaintiff also filed the cross-objection petition in respect of the findings returned by the First Appellate Court on Issues No.1 and 2. While further probing the file, it transpires that since defendants No.1 to 4 had succeeded in their suit for possession, therefore, on the request made by them before the High Court, their Regular Second Appeal was dismissed being infructuous. The cross objection petition was also dismissed for non-prosecution. However, on the application moved by the respondents/cross-objectors, the High Court vide its order dated 02.05.2008, restored the cross objection petition to its original number, therefore, necessity has arisen to dispose of the cross objection petition. The substantial questions of law, as arisen in the present case, are as under:- 1. Whether the entires in the revenue record where the petitioners-cross objectors is recorded as tenant stood rebutted ? 2. Whether the findings of fact returned by the Courts below that petitioner is not the tenant, is result of mis-appreciation of evidence ? The evidence with which the plaintiff was equipped and had brought on record is the copy of Khasra Girdawari Ex.P4 for the year 1977- 78 wherein the defendants are shown in cultivating possession. The plaintiff is recorded in possession as a tenant at Will on payment of Rs.300/- per annum as chakotedar. Now the question still to be determined is “whether this entry Ex.P4 is genuine to be relied upon ? Gaje Singh Patwari PW-3 has stepped in to the witness box in order to prove this entry. He has stated Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 4 that he made entry in Roznamcha Ex.P1. He has also stated that he had sent notices Ex.P2 and Ex.P3 to the defendants regarding the change. There is no such evidence that these notices were served upon the defendants. Thus, it could be safely concluded that Patwari made the entry regarding the change of khasra Girdwari in the absence of the defendants. It is settled by now that no change in the khasra could be made by the Patwari without notice and consent of the effected party or without order of any revenue authority. As regards the copy of Jamabandi, it reveals the possession of the plaintiff but there is no mention regarding the rate of rent. Besides producing the aforesaid documents, the plaintiff has examined himself as PW1, Om Parkash Patwari PW2, Ram Kishan PW4, Kirpa Ram PW5, Jogi Ram PW6, Hari Ram Pw7, Raja Sukh PW8, Dhayana Lambardar PW9, Sumer PW10, Sardara PW11, Tara Chand PW12 and Baljeet Singh ASI PW13. But the aforesaid oral evidence being contradictory and discrepant on material points is of no help to the case of the plaintiff. The change in the khasra Girdwari was made by the Patwari on the basis of the statement made by the plaintiff which cannot be used in his own favour. To the contrary, the defendant Ajit Singh has categorically denied the tenancy of the plaintiff. No such agreement or other document has been placed on record proving the tenancy between the parties. The tenancy is right in the property which can only be created by any bilateral agreement between the parties and in the absence of such evidence the plaintiff could not be held to be a tenant under the defendants. A fabricated entry recorded in the absence of the defendants could not be treated as sufficient to determine that the plaintiff was a tenant under the defendants. In any case, the Appellate Cross Objections No.29-C of 1984 in R.S.A.No.1017 of 1984 5 Court, after appreciating the evidence at length, refused to hold the plaintiff as tenant and decided issues No.1 and 2 against him. This finding of fact cannot be interfered or brushed aside while reappreciating the evidence at the second appellate stage. Resultantly, the findings of fact returned by the First Appellate Court regarding issues No.1 and 2 stand affirmed and the plaintiff cannot be held as tenant over the suit property. Accordingly the substantial questions of law, as framed, are bound to be answered against the cross- objector/petitioner. As such the cross-objection petition, filed by the plaintiff-respondent, being unmerited is dismissed. (A.N.Jindal) Judge 11.08.2009 mamta-II