R. S. A. No. 347 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 347 of 1985 Date of Decision : July 05, 2010 Ram Bhul and others .... Appellants Vs. Ram Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. S. Mittal, Senior Advocate with Mr. Sudhir Mittal, Advocate for the appellants. Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the respondent. * * * L. N. MITTAL, J. : By this common judgment, I am disposing of two appeals i.e. R.S.A. No. 347 of 1985 titled Ram Bhul and others vs. Ram Chand and R.S.A. No. 366 of 1985 titled Kailash Chand Sharma and others vs. Ram Chand and another. These appeals have arisen out of two separate suits filed by Ram Chand – respondent, relating to same suit land against the appellants of both appeals (including proforma respondent no.2 in R.S.A. No. 366 of 1985). Ram Chand filed suit No.242 on 20.04.1981 R. S. A. No. 347 of 1985 2 against Ram Bhul etc. giving rise to R.S.A. No. 347 of 1985. Ram Chand filed second suit No.303 on 30.04.1981 against Sunder Pal etc. giving rise to R.S.A. No. 366 of 1985. In both the suits, plaintiff Ram Chand sought permanent injunction alleging that he is in possession of the suit land measuring 03 kanals 04 marlas (banjar kadim land) as pattedaar/perpetual lessee since January 1975 and is using the said land for tethering cattle and placing bongas. He had also grown kikar trees in the suit land and his crop was also lying there. Plaintiff is in continuous possession of the suit land since January 1975. Defendants threatened to dispossess the plaintiff from the suit land forcibly and illegally. The plaintiff never relinquished his possession over the suit land nor he was ejected therefrom nor he was dispossessed from the suit land. The plaintiff is, therefore, entitled to protect his possession. Defendants have no right, title or interest in the suit land. The plaintiff therefore claimed permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit land and from dispossessing him therefrom. Defendants in both the suits, by filing written statement, controverted the allegations of the plaintiff. It was pleaded that the plaintiff has never been in possession of the suit land. The suit land was in possession of Thola Sahib Ram and Thola Lal Ji through one Raman Lal on rent of Rs.350/- per year, as per jamabandi for the year 1957-58. The lease R. S. A. No. 347 of 1985 3 was for one year. In December 1974, proprietors of Thola Sahib Ram and Thola Lal Ji leased out the suit land to Shiv Charan (defendant no.4 in suit No.242 of 1981) @ Rs.40/- per year. After said Shiv Charan gave up possession of the said suit land, proprietors of the Tholas took possession thereof and remained in possession thereof as owners. On 20.04.1981, proprietors of the Tholas leased out the suit land to Kailash Chand (defendant no.8 in suit No.303 of 1981) on rent of Rs.100/- per year and said lessee Kailash Chand is in possession of suit land since then under the proprietors of the Tholas. Plaintiff, with mala fide intention, got recorded his name in khasra girdawri for the year 1975-76 without any basis, but the same was corrected in jamabandi for the year 1976-77. The aforesaid stray entry in khasra girdawri in favour of the plaintiff was wrong and incorrect. The plaintiff intended to take forcible possession of the suit land. Various other pleas were also raised by the defendants. Plaintiff, by filing replication, controverted the pleas raised by the defendants in both the suits and reiterated the plaint allegations and also pleaded that Hukam Singh and Hari Singh were in possession of the suit land as owners/co-sharers in shamlat deh in the year 1974 and they, vide lease deed dated 08.01.1975, leased out the suit land to the plaintiff, who is in possession thereof since then. Learned Sub Judge IInd Class, Palwal, vide common judgment dated 25.01.1984, dismissed both the suits. Feeling aggrieved, plaintiff R. S. A. No. 347 of 1985 4 preferred two first appeals arising out of both the suits. Both the said appeals were allowed by learned Additional District Judge, Faridabad, vide common judgment dated 06.11.1984 and resultantly, both the suits were decreed for permanent injunction restraining the defendants from forcibly dispossessing the plaintiff from the suit land except in due course of law. Feeling aggrieved, defendants have preferred the instant two second appeals arising out of the two suits. I have heard learned counsel for the parties and perused the case files. After hearing learned counsel for the parties and perusing the records, I find that following substantial question of law arises for determination in the instant second appeals :- “Whether the finding of lower appellate court, that plaintiff is proved to be in possession of the suit land, is based on misreading and misappreciation of evidence and is perverse, illegal and unsustainable ?” Perusal of the revenue record, placed on file by both the parties, reveals that the suit land is shamlat deh owned by its proprietors. Defendants are proved to be proprietors in shamlat deh. The plaintiff himself has also not claimed ownership of the suit land. Since both the suits are for permanent injunction only, the question of possession is therefore R. S. A. No. 347 of 1985 5 the main controversy to be determined. As per khasra girdawri Ex.P-B (also Ex.P-E), plaintiff's possession was recorded over the suit land in kharif 1975 and rabi 1976 crops. However, in jamabandi for the year 1976-77 Ex.P-A (also Ex.D-1 and D-10), suit land was recorded to be in possession of the owners i.e. Proprietors of shamlat deh. Then there is khasra girdawri since kharif 1977 crop till rabi 1981 crop Ex.P-C (also Ex.P-F), but therein name of the person in possession of the suit land has not been mentioned in the relevant column. Only the word `Maqbuja' has been recorded in the column of cultivator in the said khasra girdawri. `Maqbuja' means occupied by or in possession of, but who was in possession of the suit land is not mentioned in this khasra girdawri. From the aforesaid analysis of the revenue record produced in evidence by the parties, it emerges that plaintiff's possession over the suit land was recorded only in 1975-76 in khasra girdawri, but immediately thereafter in jamabandi for the year 1976-77, possession of proprietors of shamlat deh was recorded over the suit land. Entry in jamabandi carries presumption of correctness, whereas no such presumption of correctness attaches to entry in khasra girdawri, although entry in khasra girdawri also has evidentiary value. In the instant case, on the basis of solitary entry in khasra girdawri, depicting possession of the plaintiff over the suit land in 1975-76, it cannot be said that the plaintiff was in possession of the suit R. S. A. No. 347 of 1985 6 land at the time of filing of suits in April 1981. On the other hand, in immediate next jamabandi for the year 1976-77, possession of proprietors of shamlat deh was recorded over the suit land. It is thus apparent that the plaintiff was not in possession of the suit land at the time of filing of the suit. In fact, plaintiff's possession over the suit land for the year 1975-76 is also not established merely on the basis of solitary and stray entry in khasra girdawri. It is worth noticing that according to the defendants, proprietors of the Tholas had leased out the suit land to Shiv Charan in December 1974. Defendants have placed on record copy of rapat roznamcha dated 04.01.1975 (Ex.D-X) to prove their said plea. It is recorded in the said rapat that proprietors of the Tholas had leased out the suit land to Shiv Charan for one year @ Rs.40/- per annum. The defendants have also pleaded that in the year 1957-58, proprietors of the Tholas were in possession of the suit land through Raman Lal. This plea is substantiated by copy of jamabandi for the year 1957-58 (Ex.D-1). From the documentary evidence discussed herein before, it is fully established that the plaintiff never remained in possession of the suit land and was not in possession thereof since long before the filing of the suits. Learned lower appellate court grossly misread khasra girdawri from kharif 1977 to rabi 1981 to hold that the plaintiff is in possession of the suit land, but in the said khasra girdawri, plaintiff is not recorded to be in R. S. A. No. 347 of 1985 7 possession of the suit land. On the other hand, in the immediately preceding jamabandi for the year 1976-77, the suit land was recorded to be in possession of proprietors of shamlat deh and therefore, same entry can be be presumed to have been recorded in the following khasra girdawri since kharif 1977 till rabi 1981. In any event, the said khasra girdawri does not record possession of the plaintiff over the suit land and therefore, finding of the lower appellate court based on the said khasra girdawri is perverse and illegal and therefore, unsustainable being based on misreading and misappreciation of the said document. Learned counsel for the plaintiff-respondent laid great emphasis on lease deed dated 08.01.1975 (Ex.PW-3/1) and contended on its basis that the suit land was leased out to the plaintiff vide this lease deed and therefore, plaintiff is in possession of the suit land since then. The contention, although attractive on first blush, is bereft of any force. Hukam Singh and Hari Singh, who executed the said lease deed, have not been examined as witnesses by the plaintiff. Learned counsel for the appellants contended that one of the lessors had died. However, even the second lessor, who was alive, has not been examined as witness. In addition thereto, there is not even a shred of evidence to depict that the said lessors Hukam Singh and Hari Singh were in exclusive possession of the suit land at the time of said lease deed. When the plaintiff's lessors themselves were not in exclusive possession of the suit land, they could not have transferred R. S. A. No. 347 of 1985 8 its possession to the plaintiff. The lease deed is a sham and paper transaction and it could not have effect of transferring possession of the suit land to the plaintiff when the executants of the lease deed themselves were not in possession thereof. In addition to the aforesaid, the aforesaid lease deed reserved annual rent of Rs.99/- and the lease was from year to year. Consequently, in view of Section 17 (1) (d) of the Registration Act, 1908 and Section 107 of the Transfer of Property Act, 1882, the lease deed required compulsory registration, but the same is unregistered. Consequently, the unregistered lease deed could not transfer any right, title or interest in the suit land in favour of the plaintiff. Learned counsel for the plaintiff-respondent contended that even unregistered lease deed can be looked into for collateral purposes like nature of possession. In support of this contention, reliance has been placed on a judgment of Hon'ble Apex Court in the case of Bondar Singh vs. Nihal Singh reported as 2003 (1) PLJ 366. The contention has no merit because the lease deed, being unregistered, could not have the effect of creating lease rights in favour of the plaintiff. At the risk of repetition, it has to be highlighted that lessors, who executed the said lease deed, were not in possession of the suit land and therefore, they could not deliver its possession to the plaintiff by merely executing the lease deed. Learned counsel for the plaintiff also contended, as observed by the lower appellate court also, that possession of Kailash Chand over the R. S. A. No. 347 of 1985 9 suit land is not proved. However, this contention is also misconceived and without substance. The suit land was leased out to Kailash Chand vide registered lease deed dated 20.04.1981 (Ex.DW-2/A). The plaintiff filed suit No.242 also on 20.04.1981 and the second suit No.303 on 30.04.1981. Consequently, before filing of suits, no entry in revenue record could possibly be made regarding possession of Kailash Chand because Kailash Chand came in possession of the suit land on 20.04.1981 only, pursuant to lease deed of said date Ex.DW-2/A. Resultantly, approach of the lower appellate court that Kailash Chand was not proved to be in possession of the suit land, as pleaded by the defendants, is gravely erroneous and unsustainable. Learned counsel for the plaintiff also contended that the plaintiff, even as trespasser, is entitled to protect his possession even against true owners i.e. defendants as proprietors of shamlat deh, who cannot dispossess the plaintiff forcibly except in due course of law. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Rame Gowda (D) by Lrs vs. Mr. Varadappa Naidu (D) by Lrs and Anr. reported as 2004 (1) RCR (Civil) 519. This contention is also devoid of substance. As discussed herein before, the plaintiff is not proved to be in possession of the suit land. Moreover, even according to judgment of Hon'ble Supreme Court in the case of Rame Gowda (supra), trespasser can seek injunction against the R. S. A. No. 347 of 1985 10 true owner, only if the trespasser is in peaceful, lawful and established long possession without any concealment from the true owner. In the instant case, the plaintiff was neither in lawful possession of the suit land, even according to his evidence nor he was in possession of the suit land for a long period nor he was in established peaceful possession thereof. There is only stray entry in khasra girdawri for the year 1975-76 regarding possession of the plaintiff over the suit land, whereas the suits were filed in April 1981. Consequently, the plaintiff could not be said to be in peaceful, lawful or established long possession over the suit land and therefore, for this reason as well, the plaintiff is not entitled to injunction against the defendants, who being proprietors in shamlat deh, are owners in the suit land. I may hasten to add that the plaintiff is not proved to be in possession of the suit land at all. For the reasons recorded herein above, I conclude that the plaintiff is not proved to be in possession of the suit land and finding of the lower appellate court to the contrary is based on gross misreading and misappreciation of evidence and is perverse, illegal and unsustainable. Substantial question of law, framed herein above, is accordingly answered in favour of the appellants. As a necessary upshot of the discussion aforesaid, both the instant second appeals i.e. R.S.A. No. 347 of 1985 titled Ram Bhul and others vs. Ram Chand and R.S.A. No. 366 of 1985 titled Kailash R. S. A. No. 347 of 1985 11 Chand Sharma and others vs. Ram Chand and another are allowed and judgment and decrees dated 06.11.1984 passed by the lower appellate court are set aside, whereas judgment and decrees dated 25.01.1984, passed by the trial court dismissing both the suits filed by the plaintiff-respondent Ram Chand, are restored. The parties are, however, left to suffer their respective costs throughout. July 05, 2010 ( L. N. MITTAL ) monika JUDGE