R.S.A. No. 910 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 910 of 1991 Date of decision: 08.05.2009 Gram Panchayat Sundawas ....appellant versus Phulla ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Ashok Verma, Advocate, for the appellant. Mr. D.S. Bali, Sr. Advocate, with Mr. Namit Gautam, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This order shall dispose of R.S.A. No. 910 of 1991 titled Gram Panchayat Sundawas Vs. Phulla and R.S.A. No. 409 of 1991 titled Phulla Vs. Gram Panchayat village Sundawas, as they arise out of the same judgment and decree. For brevity sake, facts are being taken from R.S.A. No. 910 of 1991. The plaintiff/respondent filed a suit for declaration with consequential relief of injunction on the plea that plaintiff/respondent R.S.A. No. 910 of 1991 -2- was in cultivating possession of the suit land measuring 52 kanals in the revenue estate of village Sundawas as tenant gair maurusi on 62 paise fee kanal lagan under the defendant/appellant gram panchayat. Consequential relief of injunction was prayed for, restraining the defendant/appellant from dispossessing the plaintiff/respondent from suit land without following due course of law. The suit land was admitted to be owned by defendant/appellant-gram panchayat, which was claimed to be under the tenancy of plaintiff/respondent as tenant gair maurusi since long. It was the case of the plaintiff/respondent that due to ill-will of Sarpanch of defendant-Gram Panchayat, the panchayat wanted to dispossess the plaintiff/respondent, as Sarpanch was interested to settled his own man as patedar over the suit land. The suit was contested by raising preliminary objection, that civil Court had no jurisdiction to try the present suit. The suit was said to be bad for want of notice, as envisaged under the Gram Panchayat Act. It was claimed, that the plaintiff/respondent has no cause of action to maintain the suit. The plea that the plaintiff/respondent has not come to Court with clean hands was also taken. Other preliminary objections that plaint being not verified and that the suit was not maintainable in present from were also taken. On merits, averments made in the plaint were denied and it was claimed that the land in dispute was given to the plaintiff/respondent on patta for a year in 1975-76, but after expiry of said period, the plaintiff/respondent, in connivance with the revenue officials, has got incorporated his name in the revenue papers i.e. jamabandi and khasra girdawris as tenant. He tried to take undue benefit of the said entry. It R.S.A. No. 910 of 1991 -3- was also the case of the defendant/appellant that the suit land was given on lease to various persons on yearly lease. It was prayed that the suit be dismissed. In replication, stand taken in the plaint was reiterated and that of written statement was denied. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the plaintiff is a tenant on the land in question under the defendant as alleged in the plaint? OPP. 2. Whether the plaintiff is entitled to injunction as prayed for? OPP 3. Whether the civil court has got no jurisdiction to try the present suit? OPD 4. Whether the suit is bad as no notice under the Gram Panchayat Act was issued to the defendant before filing the suit? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no cause fo action to file the present suit? OPD 7. Whether the plaintiff has not come to the court with clean hand and the defendant is entitled to special cost under Section 35-A CPC? OPD 8. Whether the plaint has not been duly signed and verified by the plaintiff as per law? OPD On appreciation of evidence, the learned trial Court was pleased to hold, that the plaintiff had failed to prove that he was tenant on the land in question, as alleged in the plaint. However, on issue No. 2, the learned trial Court was pleased to hold that though R.S.A. No. 910 of 1991 -4- plaintiff/respondent had failed to prove his tenancy, but his possession over the suit property was proved and in view of the possession having been proved, he could not be dispossessed except with due process of law. Issues No. 3 to 8 were not pressed. In view of the findings recorded on issues No. 1 and 2, the learned trial Court was pleased to partly allow the suit. plaintiff/respondent's claim for declaration as tenant was rejected whereas on the plea of injunction it was upheld, by holding that plaintiff/respondent could be dispossessed only by following due process of law. The findings recorded by the learned trial Court stand affirmed by the learned lower appellate Court. Mr. Ashok Verma, the learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial question of law: - "Whether the relief of permanent injunction could be granted in favour of the unauthorised occupant against a true owner?" Whereas the Mr. D.S. Bali, the learned senior counsel appearing on behalf of the plaintiff/respondent (appellant in R.S.A. No. 409 of 1991) claims adjudication on following substantial question of law: - "Whether the learned Courts below have mis-read the admissible evidence to record a finding that the plaintiff/respondent was not tenant over the suit land, thus, the judgment is perverse?" In support of the substantial question of law, the learned R.S.A. No. 910 of 1991 -5- counsel for the defendant/appellant contends that once it was proved, that the plaintiff/respondent was not a tenant over the suit property and was in unauthorised occupation thereof, the learned Courts below committed an error in granting injunction in favour of the plaintiff/respondent against the settled law, that no injunction can be granted against a true owner, on petition filed by unauthorised occupant. This contention, on consideration, deserves to be rejected. Though normally, person in unauthorised possession is not entitled to injunction against true owner, but it is equally well settled, that when long established possession is proved on record, then even unauthorised occupant can be dispossessed only by following due process of law. In the present case, the plaintiff/respondent proved on record, that his initial induction in the property in dispute was legal, as it was the case set up by the defendant/appellant, that the plaintiff/respondent was inducted as a lessee for a year, but he failed to vacate the same, on expiry of lease period. As per case set up by the defendant/appellant, it was proved that the plaintiff/respondent was in established possession though unauthorised, after expiry of initial lease period, therefore, no fault, therefore, can be found with the findings recorded by the learned Courts below. The substantial question of law raised is answered against the defendant/appellant and in favour of the plaintiff/respondent. Mr. D.S. Bali, the learned senior counsel appearing on behalf of the plaintiff/respondent (plaintiff/appellant in R.S.A. No. 409 of 1991) contends, that the finding recorded by the learned Courts below on R.S.A. No. 910 of 1991 -6- issue No. 1 is perverse, on the face of record, as learned Courts below have ignored the documentary evidence, merely on conjectures though no evidence was led by the defendant/appellant to rebut the evidence of plaintiff. It is contended by the learned senior counsel that the finding recorded by the learned Courts is perverse, as the admissible evidence has been ignored. The substantial question of law deserves to be answered in favour of the plaintiff/respondent and the suit deserves to be decreed in toto. The plea of the learned senior counsel for the plaintiff/respondent (appellant in R.S.A. No. 409 of 1991) also cannot be accepted. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact, that the revenue record did not depict the correct picture, it prima facie showed the connivance of the plaintiff/respondent with the revenue authorities, because of his status of being Lambardar of the village. The finding recorded cannot be said to be perverse or outcome of mis-reading of evidence. The learned Courts below have taken into consideration the revenue record and thereafter have recorded a finding that no reliance can be placed thereon, in view of other evidence on record. This Court cannot re-appraise the evidence, to differ with concurrent finding of fact, recorded by the learned Courts below. The substantial question of law raised by the learned senior counsel for the plaintiff/respondent (appellant in R.S.A. No. 409 of 1991) is also answered against the plaintiff/respondent. In view of the findings recorded, there is no merit in the R.S.A. No. 910 of 1991 -7- present appeals, and are ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge May 08, 2009 R.S.