R.S.A. No. 3918 of 2002 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3918 of 2002 (O&M) Date of decision: 6.1.2011 Harbans Singh ......Appellant Versus Madha Singh and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Sudeep Mahajan, Advocate, for the appellant. None for the respondents. **** SABINA, J. Plaintiff Harbans Singh filed a suit for permanent injunction qua land bearing khasra No.63//18 min (8-0). The suit filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 3.8.1998. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the Additional District Judge, Gurdaspur vide judgment and decree dated 24.8.2002. Hence, the present appeal by plaintiff. Brief facts of the case, as noticed by the learned Additional District Judge in paras No.2 and 3 of its judgment, read as under :- “ 2. The brief facts culminating into filing the instant appeal are that Harbans Singh plaintiff filed a suit for permanent injunction against Madha Singh and others defendants, R.S.A. No. 3918 of 2002 (O&M) 2 restraining them from interfering in the possession of the plaintiff or dispossessing him from land measuring 08 kanals bearing khasra No.63 R/18, Khewat No.320, Khatauni No.514 as mentioned in the copy of jamabandi for the year 1993-94 and as situated at village Ladha Munda, Had Bast No.86, Tehsil Batala illegally, forcibly and in any manner what-so-ever. It was averred that plaintiff was owner in possession of the suit land as per revenue record. Defendants had absolutely got no right, title or interest in the suit land. On 11.5.1996 at about 5.00 p.m. defendants tried to dispossess the plaintiff but their attempt was foiled by the intervention of the respectables of the locality. Defendants again had threatened to dispossess the plaintiff from the suit land illegally and forcibly. Plaintiff had requested the defendants to desist from their threatened aims and designs but they refused. Hence, the present suit. 3. Upon notice, defendants appeared and filed written statement wherein they took the preliminary objections that plaintiff was neither in possession nor had got any right, title or interest in the suit land. Land measuring 04 kanals bearing khasra no.63R/18 min was in actual, physical and cultivating possession of defendant no.1, whereas the remaining 04 kanals i.e. 63R/18 min was in actual, physical, exclusive and cultivating possession of Charan Singh. Thus suit for permanent injunction was not legally maintainable. Harbans R.S.A. No. 3918 of 2002 (O&M) 3 Singh plaintiff illegally and forcibly threatened to interfere in the possession of Charan Singh and the suit for permanent injunction titled as Charan Singh Vs. Harbans Singh was pending before the court wherein the court was pleased to grant an injunction order in favour of Charan Singh vide its order dated 24.4.1996. The plaintiff inspite of the above-said facts filed the present suit regarding the land which was already subject matter of litigation and got issued an exparte stay order by concealment of facts. On merits it was pleaded that plaintiff had got incorporated wrong mutation entry in his favour on the basis of some alleged partition proceedings, which entry is illegal, invalid, inoperative,in-effective, collusive, Sham, without any notice and being null and void is absolutely not binding. Partition proceedings pertaining the suit land are yet not finalised and are pending in the court of Collector, Batala, who even granted a stay order vide dated 10.4.1991 which was still operative. The suit of the plaintiff was false, frivolous, baseless, on the basis of wrong entries in the revenue record in favour of the plaintiff. Defendants were owners in possession of the suit land. Defendants no.2 and 3 being the real sons of defendant no.1 had join cultivation with their father Madha Singh and plaintiff was not in possession of the suit land. Plaintiff had concealed the material facts from the court. He was not entitled to discretionary relief of injunction.” R.S.A. No. 3918 of 2002 (O&M) 4 On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is in possession of the suit land as alleged ? OPP 2. Whether the plaintiff is entitled to decree of permanent injunction on the facts alleged by him ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the suit is barred u/o 2 rule 2 CPC ? OPD 5. Relief.” Learned counsel for the appellant has submitted that the appellant had been successful in proving his case. Appellant is in possession of khasra No.63//18 min (8-0). The courts below have misread the evidence on record. None has appeared on behalf of respondents despite service. The question of law that arises for consideration in this case is whether the courts below have misread the evidence on record. The plaintiff had filed suit for permanent injunction that defendants be retained from interfering in his possession qua khasra No.63//18 min (8-0). Ex.P-1 is the copy of the jamabandi for the year 1993-94. As per the same, plaintiff Harbans Singh is in possession of khasra No.63//18 min (8-0). To the similar effect are the entries in khasra girdawari Ex.P-2 from 21.10.1994 to March 1996. As per Ex.D-1 Charan Singh is in possession of khasra No.63//18 min (4-0). Ex.D-3 is the copy of khasra girdawari from 25.10.1989 to the year 1995, wherein similar entry is incorporated. As per Ex.D-2 Sadhu Singh is in possession of khasra R.S.A. No. 3918 of 2002 (O&M) 5 No.63//18 min (4-0),74//24/1 (5-9), 79//4 (2-8), 7/1 (3-1),8/1 (1-4). The total land is measuring 16 kanals 2 marlas. Madha Singh, Atma Singh are also described to be in possession of khasra No.75//23(2-4). To the similar effect are the entries in khasra girdawari Ex.D-4. Thus, it appears that small portions of land have been carved out from khasra No.63//18. Plaintiff Harbans Singh is in possession of 8 kanals of land out of the said khasra number, whereas defendant Madha Singh is in possession of separate portions of 4 kanals of land out of the said khasra number. Defendants No.2 and 3 are the sons of Madha Singh. The courts below have, thus, misread the evidence on record and have failed to appreciate revenue record (Ex.P-1 and Ex.P-2) as per which plaintiff is in possession of the suit land. Since the plaintiff is in possession of the suit land, he cannot be dispossessed from the suit land except in due course of law. The question of law stands answered accordingly. Hence, this appeal is allowed. The impugned judgment and decrees of the courts below are set aside. The suit of the plaintiff is decreed and the defendants are retained from dispossessing the plaintiff-appellant from the land bearing khasra No.63//18 min (8-0) situated in village Ladha as mentioned in jamabandi Ex.P-1 except in due course of law. (SABINA) JUDGE January 6, 2011 Anand R.S.A. No. 3918 of 2002 (O&M) 6 This file has been put up before me today by the office as while framing the decree sheet it was found that there was typographical error in the judgment. The word 'restrained' has been inadvertently typed as 'retained' on page 4 and 5 of the judgment. The said mistake being typographical is liable to be corrected. Accordingly, the word 'retained' on page 4 and 5 of the judgment be corrected as 'restrained'. (SABINA) JUDGE January 24, 2011 Anand