R.S.A.No. 1551 of 1984(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1551 of 1984(O&M) Date of decision: 22.11.2011 Atma Ram through LR Munshi and others ......Appellants Versus Harcharan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Som Nath Saini, Advocate, for the appellants. Mr. Rajiv Joshi, Advocate for legal representatives of respondent No.1. Ms.Daljit Kaur in person. **** SABINA, J. Plaintiffs had filed a suit for permanent injunction restraining the defendants from dispossessing them from the suit land bearing khasra No.35/21 (3 bigha 10 biswas) situated in village Gazipur. The case of the plaintiffs, in brief, was that the land in dispute was banjar Kadim. There was an oral agreement between the parties that plaintiff Munshi along with his brother Tulsi would R.S.A.No. 1551 of 1984(O&M) 2 make the land cultivable and the defendants would not charge any share out of the produce from the plaintiffs for a period of three years. Thereafter, the plaintiffs would be required to pay 1/4th share of the produce to the owner. The relationship between the parties was of landlord and tenant. It was also agreed between the parties that the tenant/ plaintiffs would not be ejected from the suit land except in default of payment of 1/4th share out of the produce. The plaintiffs had made the land cultivable and had spent ` 2,000/- for improving the quality of the land. The defendants were threatening to dispossess the plaintiffs from the suit land and hence, the suit was filed by them. Defendants, in their written statement, admitted the fact that the suit land was banjar kadim. It was denied that there was any relationship of landlord and tenant between the parties. It was averred that defendants No.1 and 2 were owners in possession of the suit land. The execution of the alleged agreement between the parties was denied. It was further averred that the plaintiffs had no concern with the suit land nor they were in possession of the suit land. In fact, vide order dated 03.11.1978 passed by Sub Divisional Magistrate, Rajpura in proceedings under Section 145 of the Code of Criminal Procedure, 1973, it was held that defendant Harcharan Singh was in possession of the suit land. The said order was upheld in revision by Additional Sessions Judge, Patiala. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are in possession of the suit R.S.A.No. 1551 of 1984(O&M) 3 land as tenants as alleged? OPP. 2. Whether the plaintiffs are entitled to the injunction prayed for ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether the defendants are entitled to special costs under Section 35-A CPC? OPD 5. Relief.” Parties led their evidence in support of their case. The trial Court vide judgment and decree dated 10.4.1980 decreed the suit of the plaintiffs. The first Appellate Court vide judgment and decree dated 28.4.1984 allowed the appeal filed by the defendants and dismissed the suit of the plaintiffs. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the first Appellate Court had misread the evidence on record and had erred in allowing the appeal filed by the defendants. The plaintiffs were established to be in possession of the suit land since long and hence, could not be dispossessed from the same except in due course of law. Learned counsel for the respondents, on the other hand, have submitted that the plaintiffs had failed to establish that they had been inducted as tenants qua the suit land. Assuming that the plaintiffs were in possession of the suit land, then their possession was unlawful and no injunction could be granted against a true owner. In support of their arguments, learned counsel have placed R.S.A.No. 1551 of 1984(O&M) 4 reliance on Premji Ratansey Shah vs. Union of India 1995 (3) RRR 11, wherein, in para 5, it was held as under:- “It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, admittedly, defendants No.1 and 2 are owners of the suit land. Ex.P-1 is the copy of the order dated 21.11.1978, whereby, an application moved by defendants No.1 and 2 for correction of entries in the khasra girdawari was dismissed being not maintainable by Assistant Collector, IInd Grade, Dera Bassi. Ex.P-2 is the copy of the order passed by Assistant Collector, IInd Grade, Dera Bassi dated 16.1.1979, whereby, an application moved by Harcharan Singh was dismissed. Ex.P-3 is the copy of khasra girdawari for November 1978, wherein, Harcharan Singh is described as owner of khasra No.35//21(3-10). Munshi and Tulsi R.S.A.No. 1551 of 1984(O&M) 5 are described to be in possession of the suit land on the basis of exchange. Similar are the entries in copy of khasra girdawari Ex.P-4 and Ex.P-5 from November 1978 to November 1979. Thus, as per the revenue record, proved on the file by the plaintiffs, they were described to be in possession of the suit land on the basis of exchange. The application moved by Harcharan Singh qua correction of the entries in the khasra girdawari was dismissed. Learned first Appellate Court erred in observing that Ex.P- 1 and Ex. P-2 were the copies of the orders, whereby the application moved by the plaintiffs for correction of khasra girdawari were dismissed. Rather the applications had been moved by Harcharan Singh. However, the fact remains that defendants No.1 and 2 are owners of the land in dispute although Munshi and Tulsi were described to be in possession of the suit land on the basis of exchange in the revenue record but the said exchange had not been established on record by the plaintiffs. Rather the case of the plaintiffs was that Munshi and Tulsi had been inducted as tenants qua the suit land but the plaintiffs had failed to establish the said plea. Learned counsel for the appellants has failed to point out from the record that the plaintiffs had ever paid any share out of the produce of the land to the owners. In these circumstances, the learned first Appellate Court rightly held that the plaintiffs had failed to establish their status as tenants qua the suit land. Ex.D-2 is the copy of the order dated 20.8.1979 passed by Additional Sessions Judge in revision filed by the plaintiffs against the order of the Sub R.S.A.No. 1551 of 1984(O&M) 6 Divisional Magistrate, Rajpura dated 03.11.1978 in the proceedings under Section 145 Cr.P.C. Para 5 of the said order reads as under:- “There is no ground whatsoever to interfere with the order in question. The learned Magistrate appears to have arrived at a correct conclusion that the land in dispute had fallen to the share of the respondents in a partition. Ex.P-8 and Ex.P-6 are the documents evidencing that fact. Then it would also appear that the respondents were in possession of the land on 1.8.1978. There is no cogent evidence in support of the fact that there was any exchange of the land thereafter between the parties. Vide order dated 21.12.1971 Ex.P-5 Naib Tehsildar, Dera Bassi has ordered the correction of the khasra girdawri in favour of the respondents in respect of kharif 1971 as khud kashat of Harcharan Singh, Upinder Singh and Gurcharan Singh. Ex.R-1 copy of khasra girdawri produced by the petitioners also goes to show that the respondents have been in possession of the land comprising khasra No.35/19 since 1974-75. The impugned order therefore, cannot be said to suffer from any material irregularity of illegality. The conclusion arrived at by the learned Magistrate also cannot be said to be perverse.” In the present suit also the plaintiffs had failed to establish their plea that they had been inducted as tenants qua the suit land or that they had got the suit land by way of exchange. Hence, the R.S.A.No. 1551 of 1984(O&M) 7 possession of the plaintiffs could be at the most of that of trespasser and it is a settled proposition of law that no injunction can be granted against a true owner. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE November 22, 2011 anita