Regular Second Appeal No. 3024 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3024 of 2008 Date of Decision: 5.3.2009 *** Baljit .. Appellant VS. Smt. Shayama Kumari & ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. C.B. Kaushik, Advocate for the appellant. *** ARVIND KUMAR, J. This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908(for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff- appellant is not entitled for the relief of permanent injunction against the respondents. The brief facts of the case are that the plaintiff filed the suit against defendants No.1 to 3 respectively i.e. Sube Singh (since deceased and represented by his legal representatives), Rajbir and Amrav Singh for permanent injunction restraining them from interfering in his peaceful cultivating possession over the suit land with the averments that he is in cultivating possession of the suit land as tenant under defendants No.2 and 3 since the time of his father and revenue record also reflects his possession, but irrespective of the fact that no ejectment order has been passed against him, the defendants want to dispossess him from the suit land forcibly and illegally. On the other hand the stand of defendants No.1 and 2 was of denial. According to them the plaintiff is neither owner nor in cultivating possession of the suit land and hence no question of his dispossession from Regular Second Appeal No. 3024 of 2008 2 the suit land arises at all. Rather, as per case set up by the defendants, the suit land is in cultivating possession of one Ravinder Singh by dint of affidavit/ compromise dated 18.10.1996 executed by the plaintiff. Defendant No.3 filed separate written statement taking the plea that he never indicted the plaintiff as his tenant over the suit land and the plaintiff fraudulently got the revenue entries incorporated in his favour, without notice to him and thus, is taking undue advantage thereof has filed the present suit. In replication the plaintiff took further stand that he never executed the affidavit dated 18.10.1996 regarding his no objection of transfer of suit land in favour of Ravinder Singh and the same is result of fraud and fabrication. On conclusion of trial, the learned Trial Court disbelieved the version of the plaintiff of his being in possession of the suit land as tenant of Rajbir and Amrav and it was found that since the suit land had gone in surplus pool, the same automatically vested in the State Government, therefore, held that he cannot seek the relief of injunction. Further, it has been found that the plea of the plaintiff regarding fraud is baseless and now he is estopped from denying the correctness of his statement and affidavit, executed before the Naib Tehsildar. The findings returned by learned First Appellate Court in Para No.15 of its judgment, while affirming the findings of the learned trial court, are relevant and clinches the whole issue, which read as under:- “15. Plaintiff has claimed himself to be tenant under Rajbir and Amrao Singh to whom the land was allotted by the Government being surplus. An application was moved by Baljit Singh before the State Government that the land measuring 32 kanals situated at village Bhartoli was allotted to Amrao Singh and Rajbir; whereas they were not having possession over the land. They had not deposited the requisite installments. Baljit Singh was having possession over the land since the year 1966 continuously. Baljit has prayed for cancellation of the allotment in favour of Rajbir and Regular Second Appeal No. 3024 of 2008 3 Amrao Singh and making allotment of the land in his own favour. On the said application, notice was issued to Rajbir and Amrao Singh. The applications were moved by them seeking permission to deposit the installments. Permission was not granted by the State Government and the allotment in their favour was ordered to be cancelled. Objections were filed by Rajbir and Amrao Singh. Vide order dated 14.6.2001 the precribed authority adjourned the application moved by Baljit Singh for allotment in his own favour sine-die as the matter was pending before the Civil Court. Copy of the said order has been placed on record as Ex.D2/2. Appeal was filed aggainst the said order by Rajbir and amrao singh. Vide order dated 20.2.2002 passed by Collector, Kurukshetra Ex.D2/1, the appeal was dismissed. Meaning thereby, the allotment in favour of Rajbir and Amrao Singh was cancelled by the State Government and after the cancellation of allotment the suit land vested in the State Government. Ex.D2 is the jamabandi for the year 1996-97 relating to the suit land. In the ownership column name of State Government has been recorded. Similar are the entries in Ex.D3 copy of khasra girdawari for the period 30.10.1998 to 8.4.2000. The whole picture becomes very clear. The revenue record produced by the plaintiff is up to the year 1995, jamabandi till the year 1991-92 and girdawari till the year 1995. After that there is no revenue record in favour of Baljit singh present plaintiff. The ownership as well as cultivating possession has been changed. Previously Rajbir and amarao were owners being allottees and after cancellation of their allotment, the State Government came into ownership. After execution of the affidavits on 18.10.1996 and also moving application before the revenue authorities stating no objection with regard to change of entries in the name of Regular Second Appeal No. 3024 of 2008 4 Ravinder, the cultivating possession was changed in favour of Ravinder Singh which is apparent from Ex.D2. Plaintiff has alleged fraud in the execution of affidavits and application which remain unproved on the record. Fraud has to be proved like a criminal charge and only by stating that his thumb impressions were obtained on blank papers by defendants in collusion with revenue authorities, plaintiff has not succeeded in proving fraud in execution of the affidavits Ex.D4 and Ex.d5 dated 18.10.1996. The learned trial court has rightly observed that the plaintiff has not succeeded in proving that fraud was practiced upon him and illegal possession is being taken from him. During the course of arguments, it was also averred by the plaintiff that after cancellation of allotment in favour of Rajbir and amarao Singh plaintiff became tenant under the State Government. Learned trial court has rightly declined this plea of plaintiff being beyond pleadings.” Now what has been argued on behalf of the appellant is that in another litigation between the plaintiff and Sube Singh, Amrao Singh and Rajbir Singh, the owners of the suit land, temporary injunction in his favour was issued by the learned trial court, as affirmed by the appellate Court below and by this Court in exercise of its revisional jurisdiction, while finding him in possession of the suit property being the tenant and thus, in the background of it, the findings that the plaintiff is not in possession of the suit land are erroneous. A reliance has also been placed on the judgment passed by this Court in Civil Revision No. 1954 of 1997 filed by Ravinder Singh, in whose name the revenue record was entered, against the grant of temporary injunction in favour of plaintiff, which was affirmed by this Court while dismissing the same. But the contention is meritless. The observations, if any made on the basis of some material on record while disposing the application for ad-interim injunction, could not and must not have over-riding affect on the findings returned by the Court on the basis of Regular Second Appeal No. 3024 of 2008 5 evidence produced after the full-fledged trial. Moreover, the above-said findings of the learned Lower Appellate Court leave no manner of doubt that the plaintiff not only failed to discharge the burden of his having in possession of the suit land but also that any fraud was practiced upon him while asserting his no objection qua the transfer of possessory rights in favour of Ravinder Singh. There are concurrent findings of fact recorded by both the Courts below. The findings are based on cogent evidence, oral as well as documentary, and it cannot be concluded that the findings are laconic or they lack the support of evidence. Accordingly, the appeal is dismissed in limine. (ARVIND KUMAR) JUDGE March 5,2009 Jiten