RSA No. 2603 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2603 of 2006 Date of Decision: 20.10.09 1. Jagga Singh son of Dalip Singh son of Bishan Singh; 2. Karamjit Kaur widow; 3. Kamaljit Singh; 4. Balbir Singh; sons of Maghar Singh adopted son of Puran Singh son of Bishan Singh (now deceased) petitioners No. 2 to 4, are the representative of deceased Maghar Singh, residents of Pindi Kehar Singh Wala, Village Longowal, Tehsil and Distt. Sangrur. ... Appellants Versus 1. Isher Singh son of Tamber Khan; 2. Sukhdev Singh son of Mukhtiar Singh; 3. Teja Singh son of Sehansi Singh; 4. Parsa Singh son of Jang Singh; 5. Prem Singh son of Sehansi Singh; 6. Kartar Singh son of Bachan Singh; 7. Mohla Singh son of Ishwer Singh; 8. Basakha Singh son of Labha Singh; 9. Harcharan Singh son of Mukhtiar Singh; 10. Baldev Singh son of Gulzar Singh; 11. Gurtej Singh son of Saun Singh; 12. Gulab Singh son of Piara Singh; RSA No. 2603 of 2006 2 13. Fauji Singh son of Bhanga Singh; 14. Gurcharan Singh son of Karam Singh; 15. Pritam Singh son of Bishan Singh; 16. Rulia Singh son of Bant Singh; 17. Gulab Singh son of Bahman Singh; 18. Ginder Singh son of Sarwan Singh; all residents of village Longowal, Tehsil and Distt. Sangrur. ...Respondents 19. Isher Singh son of Mann Singh; 20. Gurdev Singh son of Jatti Singh; 21. Mal Singh son of Lal Singh; 22. Bhupinder Singh son of Maghi Raj; 23. Balwinder Singh son of Amru Singh; 24. Sukhdev Singh son of Mehar Singh; all residents of village Longowal, Tehsil and Distt. Sangrur. ...Proforma-Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S. Sekhon, Advocate, for the appellants. Mr. Jatinder Singh, Advocate, for respondents No. 1 to 9, 11 to 17, 19 and 21. Respondents No. 10, 18, 22, and 24, already exparte. Respondent No. 20, has already demised. Service of respondent No. 23, already dispensed with. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, RSA No. 2603 of 2006 3 dated 01.04.06, rendered by the Court of Additional District Judge, Sangrur, vide which, it accepted the appeal, against the judgement and decree dated 21.05.05, rendered by the Court of Civil Judge (Junior Division), Sangrur, and decreed the suit of the plaintiffs. 2. The facts, in brief, are that, the plaintiffs/respondents, claimed themselves to be the owners in possession of the land, in dispute, situated at village Longowal. It was stated that the plaintiff, had placed manure and got constructed latrines, over the land, in dispute. It was further stated that the defendants/appellants, in connivance with the revenue authorities, got entered themselves as owners of the land, in dispute, though, the plaintiffs, were in possession thereof. It was further stated that the order dated 07.06.95, passed by the Director Consolidation, was illegal, as he had no right, to allot the land, in dispute, to anybody. It was further stated that the land, in dispute, is situated, in village Longowal, whereas, the defendants, belonged to village Pindi Kehar Singh Wali. It was further stated that the defendants, had no concern with the land, in dispute. It was further stated that the order dated 07.6.95, passed by the Director, Consolidation, vide which, the land, in dispute, was allotted to the defendants, had been set aside, by this Court, on 25.03.04, and the khasra-girdawaries, in their favour, were also ordered to be corrected by the Assistant Collector, Longowal. The defendants, were many a time asked, not to interfere into the peaceful possession of the plaintiffs, over the land, in dispute, but to no avail. Ultimately, a suit for permanent injunction, was filed. RSA No. 2603 of 2006 4 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that the land, in dispute, was owned and possessed by them, and the plaintiffs, had no concern with it, as they were neither the owners, nor in possession thereof. It was further stated that the defendants alongwith Bant Singh, filed a petition, under Section 42 of the Consolidation Act, 1948, before the Additional Director Consolidation, Mohali, who allotted the land, bearing khasra No. 348//5/3 and 6/1, in their favour. It was further stated that Mehma Singh and others of village Longowal, filed a Writ Petition No. 7250, titled as 'Mehma Singh and others Vs. Additional Director', in this Court, against the order dated 07.06.95, which was dismissed, on 20.05.96, with the observation, that only deficiency, had been made good, from the land, reserved for common purposes, and, as such, no ground to interfere, was made out. It was further stated that the order of the Additional Director, dated 07.06.95, merged into the orders of this Court, and the same was legal and binding between the parties. It was further stated that the Additional Director, Consolidation, Punjab, was competent to allot the land to khewatdars of the village. It was further stated that the defendants are the khewatdars of village Longowal, and the Gram Panchayat, had no concern with the land, in dispute. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- RSA No. 2603 of 2006 5 (i) Whether the plaintiffs are in possession of the suit land as alleged? OPP (ii) Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP (iii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiffs. 6. Feeling aggrieved, an appeal was preferred, by the plaintiffs/respondents, which was accepted, by the Court of Additional District Judge, Sangrur, vide judgment and decree dated 01.04.06. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the first Appellate Court, on misreading and misappreciation of evidence, recorded perverse findings, to the effect, that the plaintiffs/respondents, were in exclusive possession of the property, in dispute, and, as such, they were entitled to injunction? 10. The Counsel for the appellants, submitted that the appellants, were allotted the land, in dispute, vide order D1. He further submitted that after the allotment of the land, mutation, was sanctioned, in their favour, and they were recorded to be in possession of the land, RSA No. 2603 of 2006 6 in dispute. He further submitted that, no doubt, during the pendency of the suit, the order D1, was set aside, yet the possession of the defendants, was not disturbed. He further submitted that, even the appellants, are the khewatdars, in the village, and had right and interest, in the land, in dispute. He further submitted that the plaintiffs, were never recorded to be in exclusive possession of the land, in dispute. He further submitted that the first Appellate Court, was, thus, wrong in decreeing the suit of the plaintiffs, by setting aside the well seasoned judgement and decree of the trial Court. He further submitted that the judgement and decree of the first Appellate Court, being based on the misreading and misappreciation and non-consideration of the material piece of evidence, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that, once the order D1, vide which, the land, was allotted, in favour of the defendants, was set aside, they did not have any right or interest, in the same. He further submitted that the plaintiffs/respondents, were not the khewatdars, in the village. He further submitted that, on the other hand, in the revenue record, the possession of makbuja malkan, has been shown. He further submitted that the plaintiffs, being the proprietors and khewatdars of the village, were in possession of the land, in dispute. He further submitted that even the said land, was being used, for keeping cow dung cakes etc. He further submitted that the first Appellate Court, was right, in decreeing the suit, in favour of the plaintiffs. He further submitted that the judgement and decree of the first Appellate Court, being legal and RSA No. 2603 of 2006 7 valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. The question, that falls for determination is, as to who was in possession of the property, in dispute, at the time of filing the suit. The plaintiffs, no doubt, claimed that they being the proprietors and khewatdars of the village, were in possession of the property, in dispute. From the jamanabdi P1, for the year 1990-91, it was clear, that the plaintiffs, were not in exclusive possession of the suit land. They being the proprietors (khewatdars) of the village, had interest therein. The suit land, was shown, as 'makbuja malkan', in the column of possession, in the jamabandi, for the year 1990-91. Vide order D1, the land, in question, was allotted, to the defendants, and mutation D2, was also sanctioned, in their names. On the basis of D1 order, the defendants, were recorded to be the owners in possession of the land, in dispute, in the jamabandi D3. Similarly, in khasra-girdawri D5, they were recorded to be in possession of the land, in dispute. During the pendency of the suit, D1 allotment letter, in favour of the defendants, was set aside, by this Court, vide order P3 dated 25.03.04. When the suit, was filed, on 12.01.90, on the basis of allotment D1, the defendants, were recorded as owners in possession of the suit land. No doubt, the plaintiffs, denied that the defendants, were the khewatdars of the village. The defendants, however, claimed themselves to be the khewatdars, in the village. Sukhdev Singh, PW4, in clear-cut terms RSA No. 2603 of 2006 8 stated, in his statement, that the defendants, were the khewatdards, in the village. Even after setting aside the allotment D1, in favour of the defendants, the land, continued to be reflected, as belonging to 'shamlat deh hassad rassad raqba khewat' and in possession of the entire proprietary body. It was never shown to be in the exclusive possession of the plaintiffs. Even P2, the khasra-girdawri, was ordered to be corrected, in the name of the proprietary body of the village. The trial Court, was, thus, right, in holding, that the plaintiffs, were not in exclusive possession of the land, in dispute, and, as such, were not entitled to the injunction prayed for. The first Appellate Court, was wrong, in coming to the conclusion, that the plaintiffs, were in possession of the property, in dispute, and that the defendants, were not the khewatdars, in the village. Since the plaintiffs, were not shown to be in exclusive possession of the property, in dispute, they were not at all entitled to the injunction prayed for. The findings of the first Appellate Court, are based on the misreading and misappreciation of oral, as well as documentary evidence. The judgement and decree of the first Appellate Court, thus, being contrary to the evidence, on record, are liable to be set aside, whereas, the judgement and decree of the trial Court, are liable to be restored. 13. The substantial question of law, depicted above, is answered, in favour of the appellants. 14. For the reasons recorded above, the appeal, is accepted with costs throughout. The judgement and decree of the first Appellate Court, are set aside, whereas, the judgement and decree of the trial RSA No. 2603 of 2006 9 Court, are restored. The suit of the plaintiffs, shall stand dismissed. 20.10.2009 (SHAM SUNDER) Amodh JUDGE