RSA No.3884 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3884 of 2009(O&M) Date of Decision: October 30, 2009 Jai Narain etc. ...........Appellants Versus Fateh Singh etc. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Bhoop Singh, Advocate for the appellants. ** Sabina, J. Plaintiffs filed a suit for declaration and permanent injunction. Vide judgment and decree dated 17.4.2008, the suit of the plaintiffs was decreed with costs by the Additional Civil Judge (Senior Division), Meham and a decree for permanent prohibitory injunction against the defendants and in favour of the plaintiffs restraining the defendants from making any interference in the peaceful possession of the plaintiffs or dispossessing the plaintiffs from plots no.449, 450, 451 was passed. Aggrieved against the same, the defendants filed an appeal and the same was accepted by the Additional District Judge Rohtak vide judgment and decree dated 23.9.2009. Hence, the present appeal by the plaintiffs. The facts of the case in brief, as noticed by the learned Additional District Judge in paras 2 to 5 of its judgment, are reproduced herein below:- “2.Briefly stated, the allegations of the plaintiffs as set out in their RSA No.3884 of 2009(O&M) 2 plaint, are that Chandgi Ram their as well as proforma defendants' predecessor-in-interest was owner in possession of a plot measuring 451 Sq. yards duly mentioned in para no.1 of the plaint falling within the Lal Dora (Abadi) of the village. Similarly, Bhartu son of Pohkar was allotted the plots in dispute. As the residential house (in fact plot) of their predecessor-in-interest Chandgi Ram detailed in para no.1 of the plaint was adjacent to the house of Bhartu and the plots in dispute adjoined their house, so Chandgi Ram orally exchanged his said plot with the plots in dispute of Bhartu on 4.5.1967. In this way, Chandgi Ram became owner of the plots in dispute while Bhartu that of aforesaid plot of Chandgi Ram. For `Yadaasht' (memory) in respect of this exchange a writing was made by one Tara Chand, Goldsmith in the Bahi of Chandgi Ram which was thumb marked by Chandgi Ram and Bhartu and attested by Raghubir Sarpanch of the village. 3. As the Khewat of the land owned by Bhartu was joint with other members of his family so, the ownership of the plots in dispute carved out during the consolidation of holding proceedings, was also recorded in his joint khata wherein Bhartu was shown to be a co-sharer of the plots in dispute though the same were allotted and exclusively owned by him. After his death, said Bhartu was succeeded by his sons/grandsons Jaipal etc. while they (plaintiffs) and proforma defendants succeeded Chandgi Ram after his death. So, they have become the owners in possession of the plots in dispute while the LRs of Bhartu owners in possession of plot mentioned in para no.1 of the plaint and RSA No.3884 of 2009(O&M) 3 have constructed their houses. The plaintiffs are using the plots in dispute for storage of fodder, tethering cattle, placing cow-dung, Bitoras and Kurdis. Otherwise also, their possession over the same is open, peaceful since 4.5.1967 and without any interference from any side. 4. In 1992, the defendants filed a suit for partition of their land in which they secretly included the plots in dispute. Anyhow, plaintiff no.1 on coming to know about that very suit, got himself impleaded as party therein but that suit was dismissed for want of jurisdiction. However, the question of title raised by plaintiff no.1 was left undecided. They have every right to prevent the defendants from their illegal designs who under the garb of entries in the revenue record which amounts to a clog on their revenue record which amounts to a clog on their (plaintiff's) right over the plots in dispute, are threatening to dispossess them (plaintiffs) therefrom forcibly to which they have no right, title or authority to do so. They requested them to admit their claim and not to interfere in their possession over the plots in dispute but in vain. Hence, the suit. 5. The contesting defendants No.1 to 20 in their joint written statement have pleaded that the plaintiffs have no locus-standi to file and maintain the suit in the present form, as they are neither owners nor in possession of the plots in dispute. The suit is also false, frivolous time barred and no proper court fee has been affixed. Also, this court has no jurisdiction to entertain the suit. The father of the plaintiffs was not owner of the house rather it RSA No.3884 of 2009(O&M) 4 was under the ownership of the defendants, Balbir and Dariya father of the defendants no. 12,13,17 and 18. Bhartu was not exclusive owner of the plots in dispute rather he was having only 1/6th share therein and other co-sharer were owners in possession of their respective shares out of remaining 5/6th share. The plot mentioned in para no.1 of the plaint was not owned by Chandgi Ram. It was exclusively owned by the defendants being the ancestral one of their predecessor-in-interest where now Dariya and Balbir are residing with their families after having it inherited from their forefathers. So, Chandgi Ram had no right, title or claim over the same. As such, there was no question of exchange of plots. No entry in this regard in the Bahi was made, as alleged. They (Jaipal etc.) are the successors-in-interest of Bhartu but the plaintiffs are not the successors in interest of Chandgi Ram. The plaintiffs are neither owners nor in possession of the plots in dispute since 4.5.1967 nor using the same for storage of fodder, tethering cattle, placing cow-dung, Bitoras and Kurdis. It is also wrong that the plaintiffs are in possession of the plots in dispute peacefully and without any interference from any side as alleged. It is correct that defendants no. 1 to 4 filed the suit for partition of the plots in dispute and plaintiff no.1 was allowed to be impleaded to defend the suit and that the said suit was dismissed for want of jurisdiction. With these pleadings all the defendants have prayed for dismissal of the suit with special costs” On the pleadings of the parties, the trial Court framed the following issues:- RSA No.3884 of 2009(O&M) 5 “1.Whether the plaintiffs are owners in possession of plot no. 449, 450, 451 in village Lakhan Majra, as alleged?OPP 2.Whether the plaintiffs are entitled to a decree of permanent injunction against the defendants, as prayed for?OPP 3.Whether the suit is not maintainable in the present form?OPD 4.Whether the plaintiffs have no locus standi to file the present suit?OPD 5. Whether the suit of the plaintiffs is time barred?OPD 6. Whether proper court fee has not been affixed?OPD 7.Whether the court has no jurisdiction to try and entertain the present suit?OPD 8.Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. In the present case, plaintiffs had placed reliance on Exhibit P2 to substantiate their pleas that the suit land had came to their share in an exchange entered by them with Bhartu. However, the original entry was not produced in the Court. Only a copy of the bahi entry was produced on record. Plaintiffs failed to give any explanation with regard to the non -production of the original of Exhibit P2. Admittedly, the original bahi was in possession of the plaintiffs and some pages in the bahi were lying unwritten. In these circumstances, the Courts below have given a finding of fact that since the original of Exhibit P2 was not produced on record, no reliance could be placed on the entry Exhibit P2. RSA No.3884 of 2009(O&M) 6 No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge October 30, 2009 arya