R.S.A. No. 3504 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3504 of 2009 Date of decision: 11.05.2010 Birbal ....Appellant versus Smt. Basanti and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Gaurav Sharma, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 24.2.2009, passed by the learned Courts below, vide which the suit for permanent injunction, filed by plaintiff/respondent No.1, restraining the defendants/appellant from interfering in her peaceful possession, stands decreed. Plaintiff/respondent No.1 filed a suit by pleading therein that she is owner in possession of the agricultural land mentioned in para No.1 of the plaint. The property in dispute, was owned and possessed by defendants No.1 to 4. It was purchased by mother of the plaintiff Smt. Shakuntla Devi, by way of registered sale deed dated 21.6.2002. Mutation of sale was also sanctioned. It was also the case set up by plaintiff/respondent No.1, that defendants have no concern with ownership and possession of the suit land, but the appellant in collusion with defendants No.1 to 4 were adamant to interfere in the possession of plaintiff/respondent No.1. R.S.A. No. 3504 of 2009 -2- The suit was contested by the defendants. Defendants No.1 to 4 denied their collusion with the appellant herein. They also denied that they were attempting to interfere in the possession of plaintiff/respondent No.1. Sale in favour of plaintiff/respondent No.1 was denied. Suit was contested by appellant/defendant No.5, by claiming that he was in possession of the land, in pursuance to the agreement to sell dated 25.7.2002 for a sum of Rs.1,30,000/- (Rupees one lac and thity thousand only). The appellant further claimed, that the agreement to sell was within the knowledge of plaintiff/respondent No.1, at the time of execution of sale deed. This plea was raised to deny the claim of bona fide purchase by the plaintiff/respondent No.1. On merits, the averments made in the plaint were denied. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is owner in possession of the suit land as prayed for? OPP 2. Whether the plaintiff is entitled to relief of permanent injunction restraining the defendants from interfering in the peaceful possession over the suit land or raising any construction? OPP 3. If during the pendency of the suit, defendants succeed in raising construction or oust the plaintiff from suit land? OPP 4. Whether the plaintiff is entitled to mandatory injunction for restoration of prior position? OPP 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the plaintiff has no cause of action to file R.S.A. No. 3504 of 2009 -3- the present suit? OPD 7. Whether the plaintiff is estopped from filing the suit by her own act and conduct? OPD 8. Whether the plaintiff has not come in the Court with the clean hands, if so its effect? OPD 9. Whether the suit is not properly valued for the purpose of Court fees? OPD 10. Relief.” On appreciation of evidence, the learned trial Court recorded a finding, that the plaintiff was owner in possession of the suit land and that the plaintiff was entitled to relief of permanent injunction, restraining the defendants from interfering in the possession of the suit land or raising any construction. Issues No.5 and 6 were decided against the defendants/appellant as also issues No.8 and 9 as not pressed. In view of the findings recorded above, the suit was decreed. In appeal, the findings of the learned trial Court have been affirmed on all the issues. Learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned Courts below is perverse being outcome of mis-interpretation of evidence and for the reasons, that it took into consideration the inadmissible evidence? 2. Whether the learned Courts below committed perversity in rejecting the report of Local Commissioner, showing that it was defendant No.5/appellant who was in possession of the R.S.A. No. 3504 of 2009 -4- property?” In support of the substantial question of law, referred to above, the learned counsel for the appellant contends, that the learned Courts relied on the evidence of PW4 i.e. attorney of the plaintiff. The contention of the learned counsel for the appellant was, that the plaintiff failed to appear in the witness box, therefore, the learned Courts below were required to draw adverse inference, as the evidence of the attorney could not be read in evidence in deciding the suit filed by the plaintiff. This contention of the learned counsel for the appellant, cannot be accepted. It is well settled law, that the attorney can always depose with respect to facts borne out from the documents, and other matters not in exclusive personal knowledge of the party. The suit was based on documentary evidence i.e. the sale deed, and the attorney had deposed qua this. It cannot, therefore, be said, that inadmissible evidence was taken into consideration, or there was mis-reading of evidence. It was next contended by the learned counsel for the appellant, that there was evidence by way of DW10/1 i.e report of the Local Commissioner that defendant No.5/appellant was in possession of the suit property. Therefore, the judgment is perverse, as in view of the evidence showing possession of the appellant, no decree for injunction could be passed in favour of the plaintiff. This contention of the learned counsel for the appellant also deserves to be noticed to be rejected. The learned Courts below have recorded a concurrent finding of fact, that the report of the Local R.S.A. No. 3504 of 2009 -5- Commissioner was not admissible in evidence. Firstly for the reason, that he had no authority to give his opinion, on the possession of the parties, for want of authority. Secondly that the report was given at the back of the plaintiff/respondent No.1, as admittedly no notice was given by the Local Commissioner, while inspecting the spot. For the reasons stated, finding no merit in this appeal, the substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 11, 2010 R.S.