IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4311 of 2009 Date of decision: 11th July, 2011 Raghbir Singh … Appellant Versus Tarlok Singh and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vipin Mahajan, Advocate for the appellant. Mr. Arun Abrol, Advocate for respondent No.1. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been instituted by plaintiff-appellant. Both the courts below have declined the relief of permanent injunction sought by him against the defendant-respondent. In the suit it was pleaded by the appellant-plaintiff that he is in cultivating possession as a tenant for the last more than 15 years of land measuring 4 kanals 14 marlas comprised in Rectangle No.13 Killa No.15 situated in the revenue estate of village Barhoe, Tehsil and District Gurdaspur. Notice of the suit was issued and defendants No.1, 3, 4 and 5 caused their appearance. The suit was dismissed qua defendant No.2 for non-filing of the process fee. In the joint written statement filed, defendants No.1, 3, 4 and 5 raised a preliminary objection that the suit is not maintainable and the plaintiff has not approached the Court with clean hands. Furthermore, it was specifically pleaded that the plaintiff is not in possession of the suit land. It was the further case of these defendants that defendant No.5 remained in possession of the suit land continuously and the suit land is being used Regular Second Appeal No.4311 of 2009 by all the villagers including defendants No.1 to 4 for placing carcasses of their dead animals and thus, it is being used as a Hadda Rori. Upon the pleadings of the parties, the trial Court had drawn the following three issues: “1. Whether the plaintiff is entitled for permanent injunction? OPP 2. Whether the suit is not maintainable? OPD 3. Relief.” To prove his claim, the appellant-plaintiff himself appeared as PW-1. He examined Jagir Singh as PW-2, Nishan Singh as PW-3 and thereafter, his evidence was closed by Court order. He also tendered copies of Khasra Girdawris as Ex.P2 and Ex.P3 on record. Whereas, in support of their case, defendants examined Tarlok Singh as DW-1 and Sulakhan Singh as DW-2 and closed their evidence. He also led his documentary evidence as Ex.DA, Ex.D1 and Ex.D2. Learned trial Court held that even though in the revenue record in jamabandi name of the appellant-plaintiff has been entered as a tenant, but he has failed to produce any document to show as to on which date he took possession of the land and furthermore, as to whether he is continuing in possession of the land or not. The trial Court took into consideration the admission of the witnesses that the place where earlier Hadda Rori was situated, now Dharamshala and a school have been constructed. Ultimately the trial Court found that it was defendant-respondent No.5 who was owner in possession of the suit land and thus decided issue No.1 in his favour and against the plaintiffs. Issue No.5 was also decided in the same way. The suit was, thus, dismissed with costs. 2 Regular Second Appeal No.4311 of 2009 Counsel for the appellant has assailed the findings returned by the trial Court and has submitted that the trial Court was not justified in stating that the appellant-plaintiff admitted in his cross-examination that the Hadda Rori was shifted to the suit land about 20 years ago. Learned counsel has stated that if the entire cross-examination of appellant-plaintiff is read it can be safely deciphered that a suggestion was put to the appellant-plaintiff, who appearing as PW-1 in his cross- examination has stated this fact to be incorrect. Be that as it may, the trial Court has very rightly stated that the plaintiff has not stated the Khasra number which is in his possession. The plaintiff had admitted that the suit land is now far away from the village. The plaintiff had also admitted that the place where earlier the carcasses of dead animals were kept that land was near the village and now in that land Dharamshala and a school are existing. Feeling dissatisfied with the findings of fact returned, the plaintiff-appellant filed regular first appeal. The plaintiff could not persuade the lower appellate Court to differ with the findings given by the trial Court. Thus, after going through the pleadings of the parties, their oral as well as documentary evidence on record and hearing their counsel, affirmed the findings returned by the trial Court. Finding no merits in the appeal, it was dismissed. The lower appellate Court held that the appellant-plaintiff has failed to prove as to how he came into possession of the land and furthermore, as per jamabandi in column No.5 it has been noticed as Gair Dakhildar, which means that the appellant-plaintiff had not been paying the rent as a tenant. No document has been produced on record to show that the appellant-plaintiff was paying the rent to the Gram 3 Regular Second Appeal No.4311 of 2009 Panchayat. The lower appellate Court held the possession of the appellant-plaintiff over the suit land to be unauthorized. The Court further held that the relief of permanent injunction being discretionary in nature cannot be granted against the true owner i.e. Gram Panchayat- defendant No.5. Counsel for the appellant-plaintiff has stated that he had deleted the Gram Panchayat, which was impleaded as respondent No.4, from the array of parties and an order to this effect has been passed on April 27, 2010. It has been specifically stated in the written statement that the Gram Panchayat is in possession of the suit land and respondents No.1, 3 and 4 as per the joint written statement filed, are using the land for placing carcasses of their dead animals and as per them also, the Gram Panchayat is in possession of the land. The material party which is stated to be in possession of the land in question, has already been deleted by the appellant-plaintiff from the array of parties. There is a concurrent finding of fact given by both the courts below that the appellant-plaintiff has failed to prove his possession as a tenant over the suit land. The above said concurrent finding of fact returned by both the courts below suffers from no infirmity. No substantial question of law arises which calls for interference by this Court. Hence, the present appeal is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 11, 2011 rps 4