CR No.1503 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1503 of 2010 (O&M) Date of decision: 15.3.2011 Megh Raj ...Petitioner Versus Laxmi Dutt and others ...Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.JP Dhull, Advocate for the petitioner Mr.YP Malik, Advocate for the respondents *** Ram Chand Gupta, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 8.9.2009 (Annexure P-1) passed by learned Civil Judge (Junior Division), Kaithal and judgment dated 18.12.2009 (Annexure P-2) passed by learned Additional District Judge, Kaithal, vide which the application filed by the respondents-plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for brevity 'the Code') restraining the petitioner-defendant from dispossessing them from the land in dispute except in due course of law during pendency of the suit, was allowed. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned courts below. Brief facts relevant for the decision of the present revision petition are that a suit for decree of permanent injunction was filed by the CR No.1503 of 2010 (O&M) 2 respondents-plaintiffs against the present petitioner-defendant restraining him from interfering in any manner in their peaceful possession of the suit land detailed in para No.1 of the plaint on the plea that they are owner in possession of the land in dispute duly described in the Jamabandi for the year 2004-05 and defendant intends to interfere into their possession without any right and to take forcible possession of the suit land from them. An application under Order 39 Rules 1 and 2 of the Code was also filed on behalf of respondents-plaintiffs for ad-interim injunction order. Suit as well as the application was contested by the petitioner- defendant on the ground that he is in possession of the land in dispute and he has also constructed a house consisting two rooms over the same and he is residing there, whereas, respondents-plaintiffs are not residing in the village and they are having no concern with the property in dispute. Learned trial court after hearing both the parties and after taking into consideration the documentary evidence placed on record on behalf of both the parties, decided the application in favour of the respondents-plaintiffs vide impugned order dated 8.9.2009 by observing as under:- “8. In view of the above, I am of the considered opinion that the plaintiffs have a prima-facie case in their favour. As the revenue record is in favour of the plaintiffs and the defendant has not been able to produce any document in order to prove his possession over the suit property, even the balance of convenience is also in CR No.1503 of 2010 (O&M) 3 favour of the plaintiffs. For the same reason the plaintiffs would suffer irreparable loss in case the injunction is not granted to them. Therefore, the application for temporary injunction moved by the plaintiffs is allowed and the defendant is, hereby, restrained from interfering in any manner into the peaceful possession of the plaintiffs over the suit land, detailed in para No.1(1) to 1(d) of the plaint, either by dispossessing the plaintiffs or otherwise.” Appeal filed by the petitioner-defendant against the said order, has been dismissed by learned appellate court vide judgment dated 18.12.2009 by observing as under:- “9. From the jamabandis of the year 2004-05 produced on record of the learned lower court alongwith the pleadings, it transpires that plaintiffs-respondents have been recorded as owners in possession over the suit land as pleaded in Para No.1(a) to (d) of the plaint. The presumption of truth attaches to the entries incorporated in the revenue record particularly in the jamabandis. Although this presumption is rebuttable, but that stage would arrive only when evidence in this case would be led before the learned lower court. The entries recorded in the CR No.1503 of 2010 (O&M) 4 revenue record particularly in the jamabandis certainly form an acceptable base, while adjudicating upon the application under Order 39 Rules 1 & 2 read with Section 151 CPC. Contrary thereto defendant -appellant has also relied upon some certificates issued by the Sarpanch of Gram Panchayat, Mator. Through these certificates, defendant -appellant has tried to assert that respondents-plaintiffs are not residing in the village since long and there is no ration card of the plaintiffs-respondents showing that they are residents of village Mator, District Kaithal. The certificates as relied upon by the appellant- defendant, are not to be looked into, even prima facie while adjudicating upon the ad-interim injunction application. The prima facie evidentiary value qua such like certificates have not at all been recognized in law. Therefore, no presumption of truth can be attached to such certificates. The learned counsel has contended that in replication filed by the respondents-plaintiffs they have set up a new case by pleadings that the construction raised over the suit property belongs to them and not to the appellant-defendant. As such, the CR No.1503 of 2010 (O&M) 5 contention is that a new case has been set up, which is not permissible in eyes of law. For this purpose, the learned counsel for the plaintiffs- respondents has placed reliance on judgment cited as Azhar Sultana Vs. B.Rajamani & Ors. 2009 (1) Apex Court Judgment 739 (SC). There is absolutely no dispute with respect to the proposition of law laid down in the aforesaid judgment. However, the same is not applicable to the facts of the present case. It is not for the first time that plaintiffs-respondents have set up a new case in replication, rather they have explained the reply furnished by the appellant-defendant in his written statement, through the replication filed by them. In such a situation, defendant -appellant cannot derive any benefit of the law propounded by the Hon'ble Apex Court in afore-cited judgment Azhar Sultana's case (supra). Although defendant-appellant has asserted that he is in possession of the suit land and the respondents- plaintiffs have left the village since long, but no revenue record has been produced which could show the possession of the appellant-defendant over the suit land. Much less, even no khasra CR No.1503 of 2010 (O&M) 6 girdawari has been placed on record. On the basis of which, the learned counsel for the appellant could have asserted about the possession of appellant-defendant. In such situation, no prima facie case has been set up by the appellant- defendant which could warrant for setting aside the impugned order dated 8.9.2009. 10. Before parting, I would like to add that at the stage of appeal, an application for appointment of Local Commissioner was filed. A separate reply to that application was filed. As the defendant-appellant has not been able to substantiate his possession over the suit land. Therefore, I do not deem it appropriate to appoint any Local Commissioner in order to assert the factual position. The factual position is quite imminent from the available record itself. Even in the pleadings, the defendant-appellant has only asserted that he has raised construction of two rooms over a part of suit property. It has not been pleaded with precision as to which part of the suit property and over which of the Khasra number asserted by the respondents-plaintiffs, said construction has been raised, as alleged. Still CR No.1503 of 2010 (O&M) 7 further, it was required on the part of the appellant- defendant to plead and substantiate with documents as to when such construction was raised, whether any site plan was got sanctioned etc. These were the basic fundamental which were required to be pleaded firstly in the written statement and then substantiated through documents. Contrary thereto, plaintiffs -respondents have pleaded their ownerships and possession over specific Khasra number through revenue record. For this reason alone, the application for appointment of Local Commissioner is devoid of any merits and the same is hereby dismissed. 11. For the reasons recorded above, I do not find any illegality in the impugned order dated 8.9.2009 passed by the learned lower court and the same is hereby affirmed. Resultantly, the present appeal being devoid of any merits, fails and the same is hereby dismissed. Nothing stated herein above be deemed as an expression of opinion on the merits of the controversy. Memo of costs be prepared accordingly. Lower court record alongwith copy of this order/judgment be sent to the learned lower CR No.1503 of 2010 (O&M) 8 court forthwith. Appeal file be consigned to the record room after due compliance.” It has been contended by learned counsel for the petitioner- defendant that respondents-plaintiffs have left the village since long and the certificate issued by Sarpanch of village shows that in fact, the petitioner- defendant has been continuing in possession of the property in dispute and he is residing therein by constructing a house consisting two rooms. However, he has failed to show to this Court any document showing prima facie that he is in possession over the property in dispute. On the other hand, learned counsel for the respondents- plaintiffs placed on record copy of Jamabandi for the year 2004-05 showing that the respondents-plaintiffs are owner in possession of the property in dispute. Entries made in the revenue record are having presumption of truth. Moreover, the defendant-petitioner has failed to show as to in which capacity he has come in alleged possession of the property in dispute. He is having no concern with the property in dispute. Even if it is taken that plaintiffs-respondents are not residing in the village, it cannot be said that they have been legally dispossessed from the property in dispute by the petitioner-defendant. At this stage, prima facie case, balance of convenience and the fact that as to whether irreparable loss would be caused to the respondents- plaintiffs if ad-interim injunction is not granted, are to be seen. The respondents-plaintiffs have been able to show that they are in possession of the property in dispute as per Jamabandi for the year 2004-05. CR No.1503 of 2010 (O&M) 9 Hence, in view of aforementioned facts, it cannot be said that discretion exercised by both the courts below by granting ad-interim injunction in favour of the respondents-plaintiffs is in anyway arbitrary or illegal or some material irregularity has been committed by learned courts below or grave injustice or gross failure of justice has been occasioned thereby, warranting interference by this Court. There is no merit in the present revision petition. The same is, hereby, dismissed. March 15, 2011 (RAM CHAND GUPTA) gsv JUDGE