RSA No. 4862 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 4862 of 2009 (O&M) Date of Decision : 13.1.2010 Amarjit Singh and another .......... Appellants Versus Teja Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rahul Chhatwal, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 17.3.2009 passed by the learned lower appellate Court, partly decreeing the suit filed by the plaintiff / appellants. The plaintiffs brought a suit for permanent injunction claiming injunction against the defendant / respondents from interfering in their possession over 45K-13M of land, as per jamabandi for the year 1992-93, forcibly and illegally and from dispossessing the plaintiffs forcibly, otherwise than in due course of law. The case of the plaintiffs was that Gurbax Singh son of Amolak Singh was in possession of 45K-13M of land till his death, i.e. 15.1.1995, his sons the plaintiffs succeeded him and entered into possession of the suit land on the basis of registered will dated 8.11.1983. The case of the plaintiffs was that the property was being RSA No. 4862 of 2009 2 managed through attorney Charanjit Singh, and the property was in their possession. The original Will was not placed on record by claiming that it got misplaced. It was also claimed that their mother Mohinder Kaur was also in possession on their behalf. The defendants being inimical towards their father, were threatening to take forcible possession of the suit land, and to dispossess them forcibly . As the defendants failed to accept the claim of the plaintiffs, the suit was filed. The suit was contested, by raising objections regarding locus standi, and maintainability in the present form. The plea of estoppel was also raised. It was also pleaded, that the plaintiffs have not come to the Court with clean hands. It was also pleaded, that Charanjit Singh had no authority to file the suit. On merit, the stand taken by the defendants was that in fact Kabul Singh Canadian Sidhu Memorial Govt. High School, Fatehpur Khurd was in possession of 39 K-4M of land i.e. 4048/4740 share, through Sarpanch of Gram Panchayat of the village, being President of Building Fund Committee/ Managing Committee of the said school, whereas the plaintiffs and their mother were in possession of 6K-9 M of land i.e. eastern portion of khasra No. 4//23, 11//8/1, 3/2 and 3/1. The allegation of the enmity was denied. It was alleged that the plaintiffs and their mother were not in possession of the suit land except 6K-9M of land, therefore, there was no question of threat as alleged. In the replication, stand taken in the plaint was reiterated. On the pleadings of the parties, the learned trial Court framed RSA No. 4862 of 2009 3 the following issues :- “1. Whether the plaintiffs are entitled to the permanent injunction as prayed for ? OPP 2. Whether the plaintiffs are estopped from filing this suit by their acts, conducts and admissions ?OPD 3. Whether Charanjit Singh has valid authority to file the present suit on behalf of the plaintiffs ?OPP 4. Relief.” On appreciation of evidence, the learned trial Court found, that the plaintiff / appellants were in possession of part of the land, and the other land was in possession of the school, and decreed the suit partly. In appeal the findings recorded by the learned trial Court were affirmed and the appeal was dismissed. The learned counsel for the appellants contends that this appeal raises the following substantial questions of law :- 1. Whether the judgment and decree passed by the learned Courts below is outcome of misreading of oral and documentary evidence on record, thus, perverse? 2. Whether a true owner of the property can be denied the relief of injunction against the stranger? In support of the first substantial question of law, the learned counsel for the appellants contends, that the jamabandi for the year 1992-93 showed, that the appellants and their predecessor-in-interest were the owner in possession of the property in dispute, therefore, the possession of the RSA No. 4862 of 2009 4 appellants over the land stood proved. The learned Courts below were not justified in partly decreeing the suit, as the suit deserved to be decreed in toto. This contention of the learned counsel for the appellants cannot be accepted, once it was proved on record by oral and documentary evidence, that the plaintiff / appellants were in possession of part of the land, and also that, it was not in dispute, that the school was in existence, on the land in dispute and was in possession of the part of property of the plaintiffs. It is well settled law, that presumption of truth, attached to the revenue entries is rebuttable, and once by positive evidence it was rebutted, and it was proved that whole land was not with the plaintiffs, no fault can be found with the findings recorded by the learned Courts below, in decreeing the suit partly. It cannot be said that the judgments and decree passed by the learned Courts below are outcome of misreading of oral and documentary evidence. On the second substantial question of law, the learned counsel for the appellants contended, that even the witnesses produced by the defendants admitted the fact, that the property was purchased by the predecessor-in-interest of the plaintiffs by way of registered sale deed, therefore, the learned Courts below were not justified in denying the injunction to the true owner against the stranger. This plea of the learned counsel for the appellants is again misconceived. Once it was proved on record, that school was running there, which fact is not even disputed by the plaintiffs, and part of land was in possession of the school, which was being run by the Managing Committee, RSA No. 4862 of 2009 5 the remedy of the appellants lied somewhere else, and not by way of suit for injunction. Once the person claiming injunction is not found in possession of the property, the learned Courts below could have not passed any order restraining the defendants / respondents,who were not in possession, nor were claiming any right. In fact school was in possession of part of the property through Managing Committee, but the plaintiff for the reason best known chose not to file any suit against the school, by claiming it to be their own school. The learned Courts below rightly held that no decree of injunction could be passed against defendant / respondents. No merit. Dismissed. 13.1.2010 ( VINOD K. SHARMA ) 'sp' JUDGE