RSA No.2376 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2376 of 2010 Date of Decision: 05.08.2010 Kulwant Singh and others .……Appellants Versus Mohinder Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Sandeep Sharma, Advocate for the appellants. Mr. R. C. Setia, Sr.Advocate with Mr. Vishal Ranjan, Advocate for the respondents. L. N. MITTAL, J (ORAL) This is second appeal by legal representatives of defendant No.1 -Pakhar Singh and by defendant Nos.2 and 3. Suit was filed by respondents Mohinder Singh etc. for permanent injunction. Respondents/plaintiffs alleged that plaintiffs purchased saunjidar rights in the suit land measuring 32 kanals 3 marlas from Kishan Kumar and Tripta Devi vide sale deed dated 08.12.1983. The plaintiffs were already occupying the suit land even prior to the sale deed. The plaintiffs are in possession of the suit land since 1970-71, although revenue entries in their favour are since 1982-83. Defendants claimed to have purchased the suit land from Kishan Kumar and Tripta Devi vide sale deed dated 31.03.2003, but they had no right to sell the suit land in view of earlier sale deed dated 08.12.1983 in favour of the plaintiffs. The defendants RSA No.2376 of 2010 -2- threatened to dispossess the plaintiffs forcibly from the suit land. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from interfering in peaceful cultivating possession of the plaintiffs over the suit land except in due course of law. The defendants inter alia pleaded that they along with Gurdip Singh purchased the suit land vide sale deed dated 02.04.2003 from Kishan Kumar and Tripta Devi and prior to it, defendants were occupying suit land on the basis of lease deeds dated 20.05.2001 and 20.05.2002. The defendants alleged that they are owners in possession of the suit land and plaintiffs are not in possession thereof. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jalandhar vide judgment and decree 01.03.2007 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Jalandhar vide judgment and decree dated 26.02.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiffs claimed to be owners of the entire suit land, but even according to their sale deed dated 08.12.1983 Ex.P-6, they had purchased only half share in the suit land from Kishan Kumar. However, in the instant suit for permanent injunction, question of ownership over the suit land is not to be adjudicated upon. Lower Appellate Court has also specifically observed that there was no RSA No.2376 of 2010 -3- need of framing issue regarding ownership of the suit property in a suit for permanent injunction. Even the plaintiffs sought injunction against their dispossession except in due course of law and injunction to this effect only has been granted by the lower appellate Court. Consequently, question of ownership is not being adjudicated upon in the instant litigation and is left open to be adjudicated in appropriate proceedings, whenever the same may arise. The cruicial question to be decided in the instant litigation is as to who is in possession of the suit land. Lower appellate Court after analysing the evidence has come to firm finding that plaintiffs are in possession of the suit land. Lower appellate Court is the final Court of fact. Its finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. Learned counsel for the appellants raised certain contentions relating to appraisement and appreciation of evidence, but the same is not within the domain of second appeal. It may be added that the said contentions do not raise substantial question of law for determination in the instant second appeal. However, even the contentions raised by counsel for the appellants relating to appreciation of evidence do not have any merit. Revenue record since 1982-83 consistently recorded possession of the plaintiffs over the entire suit land. Entries in jamabandi carry presumption of correctness. The said presumption gets strengthened if the entries continue for long period. In the instant case, plaintiffs are recorded to be in possession of the suit land in the revenue record consistently for more than two decades preceding RSA No.2376 of 2010 -4- the filing of the suit. Consequently, said revenue record is sufficient to establish that plaintiffs are in possession of the suit land. Consequently, they cannot be dispossessed therefrom except in due course of law. Defendants have failed to rebut the presumption arising from entries in jamabandis spread over more than two decades. Learned counsel for the appellants emphasised that plaintiffs are residing abroad and, therefore, they cannot be in possession of the suit land. The contention cannot be accepted. The plaintiffs are recorded to be in possession of the suit land since 1982. Kishan Kumar star witness of the defendants stated that plaintiff No.1 went abroad in the year 2000. Consequently, it cannot be said that the plaintiffs ceased to be in possession of the suit land merely because they went abroad. There is no cogent evidence as to when plaintiffs No.2 and 3 have gone abroad. Learned counsel for the appellants contended that the appellants/defendants examined several witnesses from the village where the suit land is situated. However, it is not difficult for a party to procure the services of some persons to appear as witnesses to depose in favour of the party examining them. Such oral evidence is not sufficient to rebut the presumption arising from long standing entries in jamabandis spread over more than two decades. In addition to the aforesaid, learned lower appellate Court has even examined the oral evidence of the defendants and the same has been rightly discarded. It may be added that Kishan Kumar predecessor of the defendants while appearing in the witness RSA No.2376 of 2010 -5- box stated that his father had taken possession of the suit land from the plaintiffs. It means that admittedly plaintiffs were earlier in possession of the suit land. However, there is no cogent evidence on record to depict that the plaintiffs were ever dispossessed from the suit land either in due course of law or otherwise. On the other hand, Kishan Kumar stated that plaintiffs remained in possession of the suit land for about 7/8 years. In cross-examination, Kishan Kumar stated that they got vacated the suit property from plaintiff No.1 in the year 2000, when he went abroad and expressed his unwillingness to take the suit land on Theka/lease. Thus Kishan Kumar has made self-contradictory statement because he stated that his father had taken possession of the suit land from the plaintiffs, but in cross-examination, he stated that he and Tripta Devi had taken the possession of the suit land from the plaintiffs in the year 2000. However, there is no cogent evidence on record to depict that plaintiffs were ever dispossessed from the suit land either in the year 2000 or earlier or thereafter. Defendants have produced lease deeds Ex.D-1 and Ex.D-2 dated 20.05.2001 and 20.05.2002. However, the said lease deeds are ante dated. They appear to have been typed and executed on the same day. They were not scribed by any deed writer and there is no authenticity about the execution of the said lease deeds. Moreover, the same required compulsory registration, but were not registered. In addition to it, no reference was made to the said lease deeds in subsequent sale deed dated 31.03.2003 executed by the same lessors in favour of the defendants lessees. RSA No.2376 of 2010 -6- Thus the defendants apparently created lease deeds to strengthen their plea of possession even prior to purchase of the suit land by them. For the reasons recorded as aforesaid, I find no merit in the instant second appeal. Accordingly, the instant second appeal is dismissed. 05.08.2010. ( L. N. MITTAL ) A. Kaundal JUDGE