R. S. A. No. 2690 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2690 of 2009 Date of Decision : May 07, 2010 Charanjit Kaur .... Appellant Vs. Raja Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Satinder Khanna, Advocate for the appellant. Mr. Amit Jain, Advocate for respondent no. 1. None for respondents no.2 to 4. * * * L. N. MITTAL, J. (Oral) : Plaintiff Charanjit Kaur has filed the instant second appeal having remained unsuccessful in both the courts below. Plaintiff filed suit for permanent injunction against Raja Singh – respondent no.1/defendant no.1, Mukhtiar Singh – defendant no.2 (since deceased and now represented by respondents no.2 to 4 as his legal representatives) and Balwant Singh – defendant no.3 (suit qua defendant no.3 dismissed as withdrawn in the trial court ). The plaintiff alleged that she is owner in possession of 08 kanals land, as detailed in the head note of R. S. A. No. 2690 of 2009 2 the plaint, vide agreement dated 06.09.1982, executed by defendants no.2 and 3 in favour of the plaintiff, after receipt of entire payment (consideration). Defendants have no concern with the suit land, but they were trying to dispossess the plaintiff therefrom. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the suit land measuring 08 kanals and from dispossessing the plaintiff therefrom illegally and forcibly without due process of law. Defendant no.1 denied the allegations of the plaintiff. It was pleaded that plaintiff is neither owner nor in possession of the suit property. Agreement pleaded by the plaintiff was an act of forgery. Plaintiff had relinquished her right in the suit land by receiving Rs.20,000/-. Defendant no.2 also filed separate but similar written statement. Learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 05.06.2007, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ludhiana, vide judgment and decree dated 15.05.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that plaintiff's version was supported in the witness-box by Mukhtiar Singh – defendant no.2, while appearing as PW-1 and also by Parsa Singh PW-2, R. S. A. No. 2690 of 2009 3 who is son of Balwant Singh, besides the plaintiff herself, and therefore, the plaintiff is proved to be in possession of the suit land and she cannot be dispossessed therefrom except in due course of law. It was also contended that defendant no.1, by pleading that the plaintiff had relinquished her right in the suit land by receiving Rs.20,000/-, has admitted the plaintiff's case, but defendant no.1 has failed to prove his aforesaid assertion. On the other hand, learned counsel for respondent no.1 referred to observations of the lower appellate court in paragraph 13 of the impugned judgment and contended that the agreement pleaded by the plaintiff has not been proved nor there is any other documentary evidence to prove that plaintiff is owner or in possession of the suit land. It is also contended that vide rapat roznamcha patwari dated 10.03.1993, entry in revenue record regarding possession was changed in favour of defendant no.1 and the said rapat was signed by defendants no.2 and 3 as stated by Amrik Singh – Patwari Halqa (DW-7). I have carefully considered the rival contentions. The plaintiff has claimed that she is owner in possession of the suit land vide agreement dated 06.09.1982 executed by defendants no.2 and 3 in favour of the plaintiff after receipt of entire consideration. However, perusal of alleged agreement reveals that out of sale consideration of Rs.50,000/-, plaintiff allegedly paid Rs.4,000/- only as earnest money and therefore, it cannot be said that the said agreement was executed after receipt of entire consideration. Statement of defendant no.1 to the contrary R. S. A. No. 2690 of 2009 4 cannot be accepted being against the pleaded case of the plaintiff as well as against the contents of the alleged agreement. In fact, it is apparent that defendant no.2 has turned dishonest and appeared as plaintiff's witness to support her case, although in the written statement, defendant no.2 controverted the plaintiff's case. On the other hand, defendant no.2 had even signed rapat roznamcha patwari regarding change in entry of revenue record, pertaining to possession of suit land in favour of defendant no.1. In addition to the aforesaid, the alleged agreement dated 06.09.1982, which is the basis of the whole claim of the plaintiff, has not seen the light of the day and there is no explanation for withholding the said agreement. On the contrary, photostat copy of the alleged agreement was produced as Mark-A, but even the said document was not duly proved. Moreover, no permission was sought for leading secondary evidence of the alleged agreement nor the original agreement has been placed on record. There is also no other document on record to depict that plaintiff is either owner or in possession of the suit land. The alleged agreement is dated 06.09.1982 and the suit was filed on 11.03.1995 i.e. 12½ years after the execution of the alleged agreement, but during this long period, plaintiff was never recorded to be in possession of the suit land in the revenue record. On the other hand, two years before the filing of the said suit, defendant no.1 was recorded to be in possession of the suit land on the basis of rapat roznamcha patwari dated 10.03.1993, which was also signed by R. S. A. No. 2690 of 2009 5 defendants no.2 and 3. Since thereafter, revenue record depicted possession of defendant no.1 over the suit land. It is also significant to mention that the plaintiff, in the head note of the plaint, mentioned various khasra numbers. Total area of the said khasra numbers is stated to be 58 kanals 11 marlas, as also deposed by Amrik Singh – Patwari Halqa (DW-7). The plaintiff, however, claimed possession over 08 kanals only without, however, specifying as to over which specific part measuring 08 kanals out of 58 kanals 11 marlas land described in the head note of the plaint, was allegedly in possession of the plaintiff. Faced with this situation, learned counsel for the plaintiff- appellant contended that during pendency of the suit, the plaintiff restricted her claim to 08 kanals land comprised of khasra no.33//1. However, this contention does not help the appellant because it is not even pleaded by her in the plaint that she was in possession of 08 kanals land of khasra no.33//1 only. She rather pleaded that she is in possession of 08 kanals land detailed in the head note of the plaint. Her said pleading would rather show as if only 08 kanals land had been described in the head note of the plaint, whereas in fact, khasra numbers mentioned in the head note of the plaint have area of 58 kanals 11 marlas. Moreover, there is no evidence to depict that the plaintiff is in possession of 08 kanals land of khasra no.33//1 nor it is so mentioned even in the alleged agreement dated 06.09.1982, which is the sole basis of the plaintiff's claim. It is not explained as to how the plaintiff could claim possession over land of khasra no.33//1 when R. S. A. No. 2690 of 2009 6 possession of land of said specific khasra number is not even recited in the alleged agreement to have been delivered to the plaintiff by defendants no.2 and 3. In addition to the aforesaid, the suit is also barred by Section 41 (h) of the Specific Relief Act, 1963, which lays down that injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. In the instant case, the plaintiff has sued for permanent injunction only, but has not claimed relief of specific performance of the alleged agreement. There is admittedly no sale deed in favour of the plaintiff, pursuant to the alleged agreement. Accordingly, suit for permanent injunction alone is also not maintainable. From the aforesaid discussion, it becomes manifest that the plaintiff has miserably failed to prove that she is either owner or in possession of the suit land. Both the courts below have correctly arrived at concurrent finding to this effect. The said finding does not suffer from any illegality or perversity so as to call for interference in the second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal, being without any merits, is accordingly dismissed. May 07, 2010 ( L. N. MITTAL ) monika JUDGE