RSA No.4054 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4054 of 2009 (O&M) Date of decision: 22.2.2010 Basanti and others ......Appellant(s) Versus Anand Parkash and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.N. Pillania, Advocate for the appellants. Rakesh Kumar Garg, J.(Oral) CM No.12313-C of 2009 Application is allowed subject to all just exceptions. CM No.12314-C of 2009 For the reasons mentioned in the application, delay of 60 days in refiling this appeal is condoned. CM stands disposed of. CM No.12315-C of 2009 Application is allowed subject to all just exceptions. LRs of Basanti are ordered to be brought on record. RSA No.4054 of 2009 This appeal has been filed on behalf of the legal representatives of defendant No.1-Dalip (now deceased) challenging the judgment and decree of the Lower Appellate Court whereby suit for possession of the suit property filed by the plaintiff-respondents has been decreed. Brief facts of the case of plaintiff-respondent No.1 are that the RSA No.4054 of 2009 (O&M) 2 suit land was owned jointly by the respondents (i.e. Plaintiff and proforma defendants No.2 and 3 ¼th share each and proforma defendants No.4 to 7 1/4th share in equal share). The land of defendant No.1(predecessor-in- interest of the appellants) was adjacent to the suit land. In the month of July 2003, defendant No.1 illegally and forcibly occupied 7 marlas of land of the plaintiff and proforma defendants by making one Kotha/room. The said possession of defendant No.1 is illegal and forcible. Hence, the plaintiff and proforma defendants are entitled to possession of the aforesaid land from the appellants after removing the illegal encroachments on the basis of the ownership. Defendant No.1 (predecessor-in-interest of the appellants) contested the suit submitting therein that the land in dispute was a water course owned and possessed by the Irrigation Department, Government of Haryana and the plaintiff had no concern with the suit land in any manner. It was further submitted that the earlier water course which was on the spot was not in use now and has been closed. It was further submitted that the water course was constructed after deducting the land of defendants and other share-holders and not from the land of the plaintiff and proforma defendants alone. It was further submitted that as per demarcation report, the suit land was shown as a water course. Other averments were denied and dismissal of the suit was prayed for. Both the parties were allowed to lead their respective evidence. After hearing learned counsel for the parties, the trial Court vide judgment and decree dated 8.5.2007 dismissed the suit of the plaintiff- respondent. Aggrieved by the said judgment and decree dated 8.5.2007, the plaintiff filed an appeal before the Lower Appellate Court mainly RSA No.4054 of 2009 (O&M) 3 submitting that the trial Court has erred in appreciating the evidence and documents placed on record. The Lower Appellate Court while allowing the appeal vide judgment and decree dated 21.3.2009, observed as under: “Plaintiff/appellant in order to prove that suit land is owned by him and proforma defendants jointly placed on file copy of jamabandi Ex.P-4. A perusal of Ex.P-4 reveals that the suit land comprised in Khasra No.370 measuring 5 kanals 8 marlas is owned and possessed by the plaintiff and proforma defendants as per their shares. In order to prove that the suit land which is gair mumkin khal as per copy of jamabandi Ex.P-7 was inherited by him along with proforma defendants, he has placed on file copy of mutation Ex.P-6. Ex.P-7 and P-8 are the copies of jamabandi for the year 1966-67 and 1960-61. In Ex.P-8 Smt. Vidhya Devi wife of Purna Nand is shown to be owner in possession of the suit land along with other land. A perusal of jamabandi for the year 1966-67 Ex.P-7 reveals to the same effect. Ex.P-7 copy of jamabandi further reveals that old Khasra numbers of the suit land were 1728, 1739 and 1755. Ex.P-6 copy of mutation No.3770 reveals that the suit land was inherited by the plaintiff and proforma defendants after the death of Smt Vidhya Devi. Ex.P-4 and P-5 are the copies of jamabandi which reveals that plaintiff and proforma defendants are owners in possession of the suit land in equal shares. In addition to this documentary evidence plaintiff has examined himself as PW2. In examination-in-chief by way of RSA No.4054 of 2009 (O&M) 4 affidavit Ex.PW2/A he deposed about his ownership over the suit land. Sube Singh Patwari was examined by defendant/respondent as DW3 in order to prove the existence of water course in khasra No.370. He deposed that the water course is lying closed and in the cross examination he admitted that as per copy of jamabandi and revenue record the plaintiff along with proforma defendants is owner of the suit land. Defendant/respondent No.1 has taken the plea that suit land is not owned by the plaintiff and proforma defendants and the same is owned by the Irrigation Department but not even a single document has been placed on file to reveal the ownership of the suit land of Irrigation Department. Even there is no oral evidence to this effect. Solitary statement of DW 2 Chand Bahadur is not sufficient to conclude that the suit land is owned by Irrigation Department. The presumption of truth is attached with the entries incorporated in the revenue record/copy of jamabandi until the same are rebutted. Reliance in this respect is placed upon Chatter Singh vs. Girdhari and others, 1987(1) All India Lands Law Reporter 439. A perusal of entire revenue record in the shape of copy of jamabandi and copy of mutation reveals that the plaintiff along with proforma defendants is owner of the suit land as per their shares. In the absence of any evidence to prove that Irrigation Department is owner of the suit land, presumption attached to the entry incorporated in the copies of RSA No.4054 of 2009 (O&M) 5 jamabandi remains unrebutted and plaintiff alongwith proforma defendants is proved to be owner of the suit land. In order to prove the encroachments to the extent of 7 marlas out of the suit land by the defendant/respondent, plaintiff/appellant has examined Ravi Dutt, Field Kanungo as PW1. He demarcated the suit land after giving notice to the parties and proved his report Ex.P-1, presence of son of defendant Dalip on the memo of presence Ex.P-2 and site plan Ex.P-3. A perusal of report of Local Commissioner Ex.P1 as well as site plan Ex.P-3 reveals that the defendant/respondent Dalip Singh has encroached 7 marlas of land out of the suit land by way of constructing Kotha. Chand Bahadur one of the LRs of defendant Dalip Singh appeared into witness box as DW2. He denied the factum of encroachment over the suit land by them. Thus, in the presence of demarcation report the encroachment stands duly proved. As per revenue record, the plaintiff and proforma defendants are jointly owners of the suit land to the extent of their shares. Hence, they are entitled to take possession of the land measuring 7 marlas encroached upon by defendant/respondent No.2 without any right. Learned lower court has not appreciated the evidence and revenue record placed on file properly and erred in dismissing the suit. Its finding suffers from infirmity and the same is hereby set aside.” RSA No.4054 of 2009 (O&M) 6 Aggrieved from the aforesaid judgment and decree passed by the Lower Appellate Court, the appellants have filed the instant appeal challenging the judgment and decree dated 21.3.2009. Learned counsel for the appellant has vehemently argued that the Lower Appellate Court has failed to appreciate that neither the pleadings nor evidence of the plaintiff prove that he had become owner in possession of the suit land and that the suit land is joint as water course which was owned and possessed by the Government of Haryana was constructed after deducting the land of defendants also and thus, the findings of the Lower Appellate Court are perverse and are liable to be set aside. On the basis of the above argument, learned counsel for the appellant has submitted that the following substantial question of law arisea in this appeal: “(i) Whether the findings of the Lower Appellate Court are perverse and are liable to be set aside?” I have heard learned counsel for the appellants. From the perusal of the pleadings between the parties, it may be seen that it is the specific case of the appellants that the land in dispute belongs to the Government of Haryana whereas now the argument raised is that the land under the Khal was joint and the Khal was constructed after deducting the land from defendants' share also. However, admittedly, there is no evidence on record to substantiate the contention of the appellants as raised in the pleadings as well as before this Court. There is ample evidence on record in the shape of revenue entries according to which the plaintiff-respondent along with proforma defendants are the owners of the land in dispute. Presumption of truth is attached to these entries incorporated in the revenue record. In the absence of any evidence to RSA No.4054 of 2009 (O&M) 7 prove to the contrary, presumption attached to the entries incorporated in the copies of Jamabandi remains unrebutted and therefore, no fault can be found in the findings of the Lower Appellate Court in this regard. The encroachment of the land in dispute is proved from the report Ex.P-1 of the Local Commissioner as well as site plan Ex.P-3. The demarcation was done by Ravi Dutt, Field Kanungo PW-1. He demarcated the suit land after giving notice to the parties. It also stands established on record that the aforesaid demarcation was done by him in the presence of son of the defendant, namely, Dalip. Thus, from the demarcation report, encroachment stood duly proved. Learned counsel for the appellants was unable to find fault with the aforesaid findings. Thus, I find no merit in the arguments raised by the learned counsel for the appellants. In view of the aforesaid discussion, no question of law, much less substantial question of law, arises in this appeal. Dismissed. February 22, 2010 (RAKESH KUMAR GARG) ps JUDGE