Civil Revision No. 4915 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4915 of 2009 Date of Decision: 26.11.2009 Mange Ram ...Petitioner Vs. Hukam Chand & Ors. ...Respondents CORAM: Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Ashwani Gaur, Advocate, for the petitioner. Mr.Vikram Punia, Advocate, for the respondents. Vinod K.Sharma, J. (Oral) The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 25.7.2009 passed by the learned District Judge, Sonepat on an appeal filed by the defendant-respondents against the order passed by the learned trial court. The petitioner/plaintiff brought a suit on the pleadings that he was co-owner in joint possession of land measuring 27 kanals 1 marlas situated within the revenue estate of village Mahra, Tehsil and District Sonepat, It was claimed that the defendant-respondents have no right, title Civil Revision No. 4915 of 2009 2 or interest in the property but they are trying to dispossess him. It was also the case set up by the plaintiff that he had sunk a tube-well in Rect No.89 Killa No.5 but the defendants have been making efforts to use the tube-well for irrigating their fields by drawing electricity directly from the lines laid nearby. The suit was contested on the pleadings that the petitioner with his brothers was in possession of the land on the date of institution of the suit. It was also claimed that Ram Kishan, brother of the petitioner was neither owners nor in possession of the land for the reason that the plaintiff and his brother Ram Kishan had exchanged 12 kanals 4 marlas of land with equal area owned by the defendant/respondent Hukam Chand. The exchange was duly acted upon in Kharif, 1998 and both the parties took possession of the respective pieces which had fallen to their share in oral exchange. It was the case of the defendant that it was he who sunk the tube- well in Killa No.89/5 and obtained a electric connection bearing Account No.MH4/47 in the name of defendant/respondent Ram Dhari which was still in working condition. It was also claimed that regular electricity bills were paid. Nehri Girdawaris were also entered in the name of the defendants. It was the case set up by the defendant/respondents that the plaintiff now wants to get back the land which has become more valuable because of the improvements made by the defendant/respondents. The plaintiff/petitioner also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code). Civil Revision No. 4915 of 2009 3 The learned trial court accepted the application and restrained the defendant/respondents from interfering in his possession over the land in dispute. The respondent/defendants preferred an appeal. Reason for acceptance of the claim of the plaintiff/petitioner was that Jamabandi for the year 2000-01 showed that Mange Ram and his brother Ram Kishan were recorded owners in possession of the disputed piece of land comprised in Killa No.89/5 (8-0) and 80/10(8-0). The learned court, therefore, found that presumption of truth is attached to the jamabandi and for the purpose of grant of injunction the plaintiff/petitioner proved in their favour prima facie case, balance of convenience and also that they were likely to suffer irreparable loss. Learned lower appellate court placed reliance on Nehri Girdawari for the year 2000 in which Hukam Chand defendant/respondent was recorded as owner in possession of land comprised in Killa No.89/5. The learned court found it to be the latest Nahri Girdawari. The learned court also placed reliance on the notice issued by the electricity authorities with regard to the electric connection. However, in the said notice the defendant-respondents were asked to explain as to how they have sought electric connection for the property of the plaintiff/petitioner. The learned court came to the conclusion that there was enough evidence to hold that the defendant-respondents were using the land comprised in Khasra No.89/5 (8-0) and 88/10(8-0) measuring 12 kanals 4 marlas. The learned court also found that there was evidence that the tube-well was installed by the Civil Revision No. 4915 of 2009 4 defendant/respondents and that they had obtained electric connection and also that Nehri Girdawaris supported the contention of the defendant/respondents. The learned court did not accept the contention of the learned counsel for the petitioner that Nehri girdawari could not be given precedence over the entries made in records of right as the presumption of truth was attached to the entries of jamabandis but the entries with Canal Department did not have any significance over and above the revenue entries. Learned lower appellate court, thus, found prima facie defendant/respondents to be in possession and therefore, accepted the appeal and ordered dismissal of the petition moved by the petitioner under Order 39 Rules 1 and 2 of the Code. Learned counsel for the petitioner has challenged the order passed by the learned appellate court on the contention that the learned lower appellate court wrongly accepted the exchange for the reason that the exchange was claimed in the year 1998 but the oral exchange was not incorporated in the subsequent jamabandis for the year 2000-01 and 2005- 06. The contention of the learned counsel for the appellant, therefore, was that except for the bald statement there was no other evidence on record to prove that there was any exchange as alleged by the defendant/respondents. It was also the contention of the learned counsel for the appellant that no reliance could be placed on electric connection in view of the notice issued by the Electricity Department calling upon to show cause as to whom he has taken connection in the land belonging to the plaintiff/petitioner. It is also the contention of the learned counsel for the petitioner that the learned Civil Revision No. 4915 of 2009 5 lower appellate court wrongly gave preference to entries for Nahri Girdawari than the jamabandis in which the petitioner was shown to be in possession of the land and therefore, was entitled to protect his possession during the pendency o the suit. This court in the case of Birbal Vs. Shankar Dev 2001 (3) RJR 113 and Gunit Sidhu Vs. Bhai Shaminder Singh (since deceased), 2009 (2) Law Herald (P&H) 1174, has been pleased to lay down that Nehri Girdawari could not be given precedence over the entries made in the record of rights, as presumption of truth is attached to entries in jamabandis though it is rebuttable. It is also the settled law that the appellate court cannot interfere in the findings of the learned trial court unless the findings on the face of it are perverse or not capable of being arrived at on the basis of pleadings and documents placed on record. The pleadings read with the documents on record in this case showed that the plaintiff/petitioner was able to prove that it was the plaintiff/petitioner who was in possession of the property by producing on record the record of right i.e. Jamabandi. Presumption of truth attached to the documents could only be rebutted after the parties were allowed to lead evidence but could not prima facie be disbelieved. Consequently, this revision is allowed. The impugned order is set aside and the order passed by the earned appellate court is set aside and that of the learned trial court is restored but with no order as to costs. (Vinod K.Sharma) 26.11.2009 Judge rp