Regular Second Appeal No. 4856 of 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4856 of 2009(O&M) Date of decision: 21st December, 2009 Fakiria .......Appellant Versus Punnu and others ........Respondents Regular Second Appeal No. 4857 of 2009(O&M) Fakiria .......Appellant Versus Soran and others ........Respondents Before: HON'BLE MRS. JUSTICE SABINA Present: Mr. G.C.Shahpuri, Advocate for the appellants. Sabina, J. Vide this judgment, the above mentioned two appeals i.e. R.S.A.No.4856 of 2009 titled as “Fakiria v. Punnu and others” and R.S.A.No.4857 of 2009 titled as “Fakiria v. Soran and others” would be disposed of as they have arisen out of one suit. Plaintiff Fakiria filed a suit for permanent injunction, Regular Second Appeal No. 4856 of 2009(O&M) -2- restraining the defendants from interfering in his peaceful possession. Suit of the plaintiff was decreed by Civil Judge (Junior Judge) Jagadhri, vide judgment and decree dated 4.08.2006. Aggrieved by the same, defendants preferred two separate appeals. These appeals filed by the defendants were allowed and suit of the plaintiff as well as the application under Order 39 Rule 2-A was dismissed, vide judgment and decree dated 23.10.2009. Hence, the present appeals by the plaintiff. Brief facts of the case, as noticed by the learned Additional District Judge in para Nos. 2 to 10 of its judgment, are reads as under:- “2. The suit property is a Bara measuring 55'x39' bounded with the boundaries as under:- East: Phirni; West: Gali; North: property of Jiwana Jhiver Sourth: property of Punnu etc. defendants, situated in the abadi deh of village Sabapur, Tehsil Jagadhri, District Yamuna Nagar as reflected in rough site plan, furnished alongwith the plaint. 3. In the amended plaint, the plaintiff pleaded that he is resident of Sabapur, Tehsil Jagadhri, District Yamuna Nagar. He is owner in possession of the suit property, the Bara, as Regular Second Appeal No. 4856 of 2009(O&M) -3- detailed in head note of the plaint, since the time of his fore-fathers. The suit property situates in the abadi deh of village. He uses the suit property for storing gohara, kurdi, parali, koop Bhoosa and also tethering his cattle therein. He is also using the part of suit property for growing vegetables and has sown the crop of garlic on it. One tree of safeda also stands in the suit land. 4. The plaintiff claimed that defendants are desperate type of persons and have no right, title or interest in the suit property. They have threatened to interfere in the peaceful possession of the plaintiff over the suit property. He requested the defendants several times to desist from their evil design, but all in vain. 5. The plaintiff pleaded that defendants violated status quo order dated 20.3.2001 and dispossessed him from the suit land illegally and forcibly. The plaintiff thus, pleaded that he be granted decree for permanent injunction restraining the defendants from interfering in the suit property either by themselves or through their servants, agents or by other person and he be further granted a decree of mandatory injunction directing the defendants to restore Regular Second Appeal No. 4856 of 2009(O&M) -4- the possession of the suit property to him after removing the super structures in the shape of walls and other construction in his favour, against the defendants. 6. Upon being noticed, the defendants put up appearance and filed the written statement including the amended written statement and pleaded suit of plaintiff is false and has been filed by suppressing true facts from the court. 7. The defendants pleaded that the plaintiff wrongly alleged the suit property to be in abadi deh of village, whereas the suit property bears khasra no. 99, situated at village Sabapur, Tehsil Jagadhri, which was purchased by them vide registered sale deed dated 23.3.1977 from its previous owner Ramdia S/o Budhu @ Patta, r/o Sabapur. Since then, they are in actual physical possession of the suit land. Their names have also been entered and sanctioned in the revenue record on the basis of mutation bearing No. 73. 8. The defendants also pleaded that after the sale, on 15.6.93 in a family settlement between the defendants and his brother the suit Regular Second Appeal No. 4856 of 2009(O&M) -5- property fell to the share of answering defendants. After the settlement, they have constructed one pucca room in the suit land alongwith boundary walls on the Northern and Eastern sides. The said room is being used by the defendants for tethering their cattle and suit land is also being used by the defendants for placing gohara, fuel wood and tethering cattle etc. One grass cutting machine belongs to the defendants also exists in the suit land. The defendants also pleaded that house of the plaintiff is situated at a far off distance of about 250' from the suit land. Plaintiff is neither owner nor in possession of the same. It is defendants who are owners in possession of the suit land. Plaintiff has got no right, title in the same. There is no safeda tree in the suit land, as alleged. In the additional pleas, the defendants also took the pleas of maintainability and locus-standi of the plaintiff to file the suit. With the aforesaid averments, the defendants pleaded that the suit of the plaintiff is devoid of merits and deserves to be dismissed. 9. Plaintiff filed two applications u/o 39 Rule 2-A CPC, one on 9.6.2001 and other on Regular Second Appeal No. 4856 of 2009(O&M) -6- 20.11.2001, wherein the plaintiff alleged that the defendants cut and removed the safeda tree on 7.6.01 and also dispossessed him forcibly from the suit land on 17.11.2001 and also uprooted and drove away the cattle tethered in the suit land and raised the construction of the boundary walls and took possession of the suit land in utter violation of the status quo order dated 20.3.2001 as passed by the Court. 10. The defendants in reply denied the allegations and stated that they never cut and removed the tree from the suit land as alleged. Some of the respondents also pleaded that they were not party to the suit. They never disobeyed the orders of the court, as alleged and prayed to dismiss the application.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of permanent injunction sought? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction sought?OPP 3. Whether the suit is not maintainable? OPD 4. Relief. Additional issue 1-A was framed on 14.05.2004:- Regular Second Appeal No. 4856 of 2009(O&M) -7- 1-A Whether the defendants have violated the stauts quo order dated 20-3-2001 on 7-6-2001 by cutting safeda tree and on 17.11.2001 by forcibly dispossessing the plaintiff from the suit land? If so to what effect?OPP” After hearing the learned counsel for the appellants, I am of the opinion that the instant appeals are devoid of any merit and deserves dismissal. Plaintiff had filed the suit that he was in possession of the suit property, since long and defendants had no concern with the suit property. Plaintiff was using the suit property as Bara for placing fuel wood and tethering his cattle etc. Plaintiff had sown vegetables and some crop of Garlic and had also planted safeda tress in the Bara. Thus, the case of the plaintiff was that the suit property was a Bara measuring 55'x39'. However, the case of the defendants was that the suit property formed part of Khasra No. 99 and they had purchased the same vide registered sale deed dated 23.03.1977. The defendants proved the relevant revenue record as per which they were owners in possession of Khasra No. 99. It has been observed by the learned Additional District Judge, in the judgment that the plaintiff has admitted that the suit property was part of khasra no. 99 and had also placed reliance on report of Local Commissioner Ex:P-3 and site plan Ex:P-4, wherein, the suit property was described as khasra Regular Second Appeal No. 4856 of 2009(O&M) -8- no.99. In these circumstances, the learned Additional District Judge, rightly held that the plaintiff had failed to correctly describe the suit property. The plaintiff had sought relief of injunction which was an inequitable relief and hence the plaintiff was required to come to the Court with clean hands. The plaintiff had failed to lead any proof qua ownership of the suit property whereas the defendants had proved on record the sale deed, mutation, and revenue record shown them as owners in possession of the suit property bearing khasra no. 99. A presumption of truth is attached to the entries in the Jamabandi. The plaintiff on the other hand had failed to rebut the said entries in the Jamabandi regarding the possession of the defendants. The learned Additional District Judge had observed in the judgment that PW 3 Karnail Singh, had also deposed in his cross examination that defendants were owners in possession of Bara bearing no. 99. Ex:P-3 report of the Local Commissioner was tendered on record by a record keeper and was, thus, not duly proved on record. The Local Commissioner who had prepared the report was not examined by the plaintiff to substantiate his possession over the suit property. The learned Additional District Judge, after appreciating the evidence led by the parties on record has given a finding of fact that the plaintiff had failed to establish his possession over the property in dispute. The said finding of fact cannot be interfered with by this Court in appeal. Regular Second Appeal No. 4856 of 2009(O&M) -9- The application filed under Order 39 Rule 2-A of the Civil Procedure Code, was ordered to be dismissed by the learned Additional District Judge, Yamuna Nagar at Jagadhri, as plaintiff had failed to lead any evidence that the trees had been cut by the defendants. Since, the plaintiff was not held to be in possession of the suit land, the allegation of the plaintiff that he had been dispossessed from the suit land on 17.11.2001, was also rightly rejected by the learned Additional District Judge. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. [SABINA] Judge 21st December, 2009 Shivani Kaushik