R.S.A. No.2017 of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2017 of 2003 Date of decision:27th August, 2009 Smt. Somoti and others ......Appellants Versus Dharambir and others ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Amit Jain, Advocate for the appellants. Mr. V.K.Kaushal, Advocate for Mr. B.R.Mahajan, Advocate for respondent no. 1. Mr. Jagmohan Singh, Advocate for respondent no.2. Mr. Adarsh Jain, Advocate for the respondents no. 4 to 8. RAJIVE BHALLA, J. The appellants challenge the judgment and decree dated 20.01.2003, passed by the Additional District Judge, Faridabad, partly accepting the appeal filed by the plaintiff-respondents no. 1 and 2 and as a consequence, partly reversing the judgment and decree dated 24.08.2001, passed by the Civil Judge (Junior Division) Palwal. The plaintiff-respondents no. 1, 2 and 5 filed a suit for permanent injunction, to restrain the defendant-appellants from interfering in their possession over land measuring 7 kanals and 19 marlas by alleging that they are in possession since 1955, as duly reflected in the revenue record. It was also, prayed that entries in the revenue record recording them as gair marusi Doem are incorrect and should therefore, be corrected. The appellants filed a written statement raising various 1 R.S.A. No.2017 of 2003 preliminary objections but in essence pleaded that they are in possession of the suit property and as the revenue record reflects their possession as mortgagees, the suit cannot be entertained and should be dismissed. On the basis of the pleadings the trial court framed the following issues:- “1. Whether the plaintiffs are in possession of the agricultural land as detailed in para no. 1 of the plaint?OPP 2. Whether the plaintiffs have no locus standi to file the present suit?OPD 3. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 4. Whether the plaintiffs have no cause of action to file the present suit?OPD 5. Relief. Thereafter, the learned trial Court also framed the following additional issue: Addl.Issue No.1: Whether the plaintiffs are owners of the suit land on account of lapse of period of redemption of tenancy rights in the suit land by the defendants?OPP” It would be necessary to mention here that the trial court did not frame any issue with respect to the legality or correctness of the revenue entries. On the basis of the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit. Aggrieved by the aforementioned judgment and decree, respondents no. 1 and 2 filed an appeal. Vide judgment and decree 2 R.S.A. No.2017 of 2003 dated 20.01.2003, passed by the Additional District Judge, Faridabad, partly accepted the appeal and restrained the appellants from interfering in the possession of respondents no. 1 and 2, over the suit land. Counsel for the appellants submits that the first appellate court could not have discarded the revenue entries, even if, corrected during the pendency of the suit. The revenue entries are based upon a decree passed against respondents no. 1 and 2. It is submitted that a presumption of truth attaches to revenue entries whether original or corrected and therefore, could not have been discarded by the courts below. It is submitted that in view of the errors committed by the courts below, the following substantial questions of law arise for consideration:- “1. Whether the plaintiffs have been disbelieved as mortgagees in possession and the defendants have become owners by virtue of Ex.D11, perpetual injunction still can be granted to the plaintiffs who even if presumed to be in possession, against true owners? 2. Whether the theory set up by the plaintiffs that they have entered into possession as mortgagees in oral mortgage which has not been proved, still the possession of the plaintiffs can be proved on the land in dispute? 3. Whether the defendants, having revenue document in their favour which is not rebutted rather presumed to be in possession of the land in dispute? 4. Whether judgment & decree of the learned Lower Appellate Court reversing well considered 3 R.S.A. No.2017 of 2003 judgment & decree of learned Trial Court is illegal and is liable to be set-aside?” Counsel for the respondents no. 1 and 2, on the other hand submits that the revenue entries were corrected without any notice to them and in violation of principles of natural justice and the instructions issued by the Financial Commissioner. It is further submitted, that the revenue record from the year 1955 reflects them as in continuous possession and therefore, in the absence of any order, judgment or decree directing their dispossession from the suit land, the revenue entries reflecting the appellants in possession were rightly rejected by the first appellate court. It is also argued that the fact that the courts below have recorded a finding against the plea of mortgage is irrelevant, that as the suit is for grant of an injunction. I have heard counsel for the parties and perused the impugned judgment and decree. As is apparent from a perusal of the judgment of the first appellate court, the jamabandies from the year 1955-56 to 1992-93 consistently reflect father of respondents no. 1 and 2 in possession as gair marusi Doem. The change in the jamabandi was effected pursuant to khasra girdwaris Ex.8 and Ex.D9, whereby, the name of Mohar Pal, one of the appellants was entered in the column of possession without any apparent reason for this change. The revenue record, prior thereto consistently reflects the possession of Charan Singh, father of respondents no. 1 and 2, and therefore, in the absence of any valid order, judgment or decree of any authority or court, the revenue authorities had no jurisdiction to alter the khasra girdwaris and to thereafter, record a Fard Badar reflecting change of possession. As regards the decree pressed into service by counsel for the appellants, suffice is to say that the respondents no. 1 and 2 are not parties to the decree and even otherwise, as the question herein relates to possession as gair marusi Awal, it is irrelevant as the 4 R.S.A. No.2017 of 2003 revenue record reflects respondent no. 1 as gair marusi Doem under the gair marusi Awal. It is, therefore, held that revenue entry altered during the pendency of the suit is illegal and void for want of any order passed by any authority or any judgment or decree passed in favour of Mohar Pal. As regards the questions of law framed by counsel for the appellants, the first and second question of law are irrelevant as the dispute relates to possession of the suit land and whether the respondents are mortgagees or not is irrelevant. As regards question no. 3, the revenue entry made in favour of the appellants has already been dealt with in the preceding part of the judgment. The last question is more in the nature of an issue and even otherwise, as the impugned judgments and decrees do not suffer from any illegality, the appeal is dismissed. In view of what has been stated hereinbefore, the appeal is dismissed. [RAJIVE BHALLA] JUDGE 27th August, 2009 SKaushik 5