Regular Second Appeal Nos.1197 & 1262 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No.1197 of 1987 Gurmej Singh ...Appellant Versus Lakha Singh and another ...Respondents 2. Regular Second Appeal No.1262 of 1987 Lakha Singh ...Appellant Versus Tara Singh and another ...Respondents Date of Decision:-9.8.2011 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Ms.Gagan Preet Kaur, Advocate for the appellant. Mr.Premjit Kalia, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) As identical factual matrix is involved, therefore, I propose to dispose of above indicated two regular second appeals, by virtue of this common judgment, in order to avoid the repetition, which were also decided by the first appellate Court, vide impugned single judgment, However, the facts have been extracted from RSA No.1197 of 1987 titled as “Gurmej Singh Vs. Lakha Singh and another” for ready reference in this context. 2. The epitome of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeals and emanating from the record, is that Tara Singh son of Ganga Singh, respondent No.2-plaintiff (for short “the plaintiff”), filed the suit, seeking a decree for permanent injunction, restraining Gurmej Singh appellant- defendant No.1 and Lakha Singh respondent No.1-defendant No.2 (for brevity “the defendants”) from interfering into his lawful possession over the land measuring 3 kanals 11 marlas, comprised in Khata/khatoni No.229/411, rectangle No.17 and Regular Second Appeal Nos.1197 & 1262 of 1987 -2- Killa no.12/4, situated in the area of village Kaler, Tehsil Ajnala, District Amritsar, inter-alia pleading that he (plaintiff) is in its physical possession, as a tenant since 1976 and regularly paying the rent, in pursuance of order of Tehsildar, Ajnala. The defendants have got no right, title or interest in it. However, they intend to forcibly dispossess him, without any legal right. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of permanent injunction against the defendants, in the manner indicated hereinbefore. 3. The defendants contested the suit and filed the written statement pleading certain preliminary objections of, maintainability of the suit, cause of action and locus standi of the plaintiff. According to the defendants that the plaintiff is not in possession. In fact, they are in possession of the land in dispute. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the plaintiff is entitled to the injunction prayed for?OPP 2. Relief. 5. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 6. The trial Court, after taking into consideration the entire evidence on record, partly decreed the suit of the plaintiff and restrain defendant Lakha Singh from dispossessing him from the land measuring 1 kanal, out of the suit land. However, the suit with regard to land of defendant Gurmej Singh, was dismissed, by means of judgment and decree dated 23.12.1982. 7. Aggrieved by the decision of the trial Court, Tara Singh-plaintiff and Lakha Singh-defendant No.2 filed their respective appeals. The first appellate Court accepted the appeal of the plaintiff and decreed his suit for permanent injunction, restraining the defendants from interfering in his lawful possession of land measuring 3 kanals 11 marlas. Consequently, the connected appeal filed by Regular Second Appeal Nos.1197 & 1262 of 1987 -3- Lakha Singh defendant No.2 was dismissed with costs, by way of impugned judgment and decree dated 13.12.1986. 8. The defendants did not feel satisfied with the impugned judgment and decree of the first appellate Court and preferred their two separate regular second appeals. That is how I am seized of the matter. 9. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeals in this behalf. 10. Ex facie, the argument of the learned counsel that since the appellant-defendants are proved to be in possession of the suit land and latest khasra girdawari is in their name, so, the Ist Appellate Court fell in error in decreeing the suit of the plaintiff, sans merit. 11. As is evident from the record that plaintiff has been recorded in possession of the land in dispute in the jamabandi for the year 1975-76 (Ex.P1). In the subsequent khasra girdawari, the plaintiff has also been described in its possession. The trial Court has ignored the entries in the jamabandi (Ex.P1), to which, the presumption of truth is attached and subsequent revenue entries in favour of the plaintiff and has negatived his claim only on the basis of one stray entry in the khasra girdawari, without any legal basis, in which, the defendants have been shown in possession of the suit land. Once it is proved that the plaintiff has been described in possession of the suit land in the jamabandi (Ex.P1) and subsequent khasra girdawari, then it was for the defendants to prove that either he (plaintiff) himself surrendered the possession to them or he was legally ejected by the competent authority, which is totally lacking in the present case. Strange enough, still, the khasra girdawari was changed, without issuing any notice to plaintiff or following any instructions issued by the Financial Commissioner. The trial Court has ignored this vital aspect of the matter with impunity. The first appellate Court rectified the legal error committed by the trial Court, by virtue of Regular Second Appeal Nos.1197 & 1262 of 1987 -4- impugned judgment dated 13.12.1986, which, in substance, is (paras 6 to 9) as under:- “6. xxx xxx xxx However, should the conclusion be that the original incorporation of the names of the respondents as the cultivators in the Khasra Girdari was done without notice to the person in whose name the entry was standing, then quite obviously the same is liable to be ignored. The instruction of the Financial Commissioner is to this effect and needless to say the rules of natural justice also required that such changes in record should only be done after the person who is likely to be adversely effected is given an opportunity to represent his side of the case. There is no evidence in this case whatsoever that such procedure was adopted. D.W.1 in his statement could not give the exact date when he entered into possession of the land. His statement was recorded on December 13,1982 and he mentioned that he had been in possession of the land for the last 4/5 years. He also further stated that he could not say if the Patwari had given any notice in writing to the appellant when he changed the entry in the Khasra Girdawari in his name. 7. It may be useful to notice the relevant Jamabandi for the year, 1975-76 which is Ex.P1. There in the column of ownership, Gram Panchayat is shown to be owner whereas the column of cultivation shows the Central Government as tenant at will through the appellant as a tenant-at-will under the Central Government. Similar is the position in Khasra Girdwari for the period Kharif, 1976 to Rabi, 1980 in the copy filed Ex.P2. However, in Kharif, 1980, the two respondents have been mysteriously introduced as the cultivators but have been shown to be in forcible possession. 8. The entire question of correction of the revenue entries is stated to be pending before the learned Financial Commissioner in R.O.R.No.763 of 1983-84. That may be on account of the merits of the case as the learned Financial Commissioner sees them but would have no influence on a civil court called upon to determine the question which party is in possession. This is purely a question of law and I find from the documents on record that the appellant was a tenant on the suit land under the Central Government. He was a tenant and he was in possession thereof. Nothing can dislodge him from his possession, least of all an entry recorded in Khasra Girdwari showing the respondents in forcible possession. This is because this entry was recorded in violation of all Regular Second Appeal Nos.1197 & 1262 of 1987 -5- instructions of the Financial Commissioner to give prior notice to the party adversely effected and also is violation of principle of natural justice. In any case, the respondents are recorded to be in forcible possession which means they are not in legal or peaceful possession at all. 9. The respondents took up the position that the suit land was not being cultivated at all by the appellant and this was established from the entries in the Khasra Girdwaris Ex.P2 which showed the type of soil as Banjar Kadeem right upto Rabi, 1980. The first crop sown on this land was in Kharif, 1980 when the entry showed the existence of Bajra crop sown by the respondents. As the land was lying fallow it could not be possessed by the appellant ran the argument. But in my opinion what the Khasra Girdwaris do show is only cultivation of the land and if so by whom. These entries are a record of the two harvests but it does not mean that if the land is not cultivated and no crops are harvested, it could not be in possession of the appellant. This is really a case of an ordinary man being overwhelmed by arm twisting and bullying tactics adopted by some powerful members of the village community. For this, I am sorry to note, the revenue authorities have colluded with the respondents and changed the entries in the record in their favour without following the procedure prescribed by the Land Revenue Act and the instructions of the Financial Commissioner in this respect.” 12. The learned counsel for the appellant-defendants did not point out any material, much less cogent, as to how and in what manner, the impugned judgment and decree of Ist appellate Court are illegal and would invite any interference in this relevant connection. 13. Meaning thereby, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the first Appellate Court has recorded the above- mentioned findings of fact. Such pure findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the Regular Second Appeal Nos.1197 & 1262 of 1987 -6- learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Ist appellate Court, in this regard. 14. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the first appellate Court in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Ist appellate Court. 15. Therefore, since no question of law, much less substantial, is involved, so, no interference is warranted, in the impugned judgment and decree of the Ist Appellate Court, which is hereby maintained, in the obtaining circumstances of the case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 17. In the light of aforementioned reasons, as there is no merit, therefore, the instant regular second appeals are hereby dismissed as such. (Mehinder Singh Sullar) 9.8.2011 Judge AS Whether to be referred to reporter?Yes/No