Regular Second Appeal No. 3023 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3023 of 2008 Date of Decision: 5.3.2009 *** Baljit .. Appellant VS. Ravinder .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. C.B. Kaushik, Advocate for the appellant. *** ARVIND KUMAR, J. This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908(for brevity 'the Code'), challenging concurrent findings of fact recorded by both the Courts below holding that the plaintiff- appellant is not entitled for the relief of permanent injunction against the respondent. The brief facts of the case are that the plaintiff filed the suit against defendant for permanent injunction restraining him from interfering in his peaceful cultivating possession over the suit land with the averments that he is in cultivating possession of the suit land as tenant under one Rajbir and Amrav Singh since the time of his father and revenue record also reflects his possession, but irrespective of the fact that no ejectment order has been passed against him, the defendant as well as Rajbir and Amrao Singh wanted to dispossess him from the suit land forcibly and illegally, for which he also filed separate suit against the owners. On the other hand the stand of defendant was of denial. According to him the plaintiff is neither owner nor in cultivating possession of the suit land and hence no question of his dispossession from the suit land arises at all. As per case set up by the defendant, the suit land was Regular Second Appeal No. 3023 of 2008 2 declared surplus and after exchanging hands with many persons, it finally was allotted to Rajbir Singh and Umrao Singh, but the allotment in their favour was also cancelled and the suit land vested with the State Government, but the possession of the same was never taken. However, pursuant to settlement between plaintiff and defendant on 18.10.1996, the possessory rights of the suit land were transferred in favour of the defendant, for which the plaintiff not only executed the affidavit but suffered the statement before the AC Iind Grade regarding his no objection for the change of khasra girdawari and in lieu thereof the sons of Sube Singh, the original owner of the suit land, agreed to mortgage some other land in favour of the plaintiff without obtaining any consideration from him. It was further the case of the defendant that later the plaintiff became dishonest and backed out from the compromise by making complaint against the defendant and others and alleged that a fraud has been played with him. In replication the plaintiff took further stand that he never executed the affidavit dated 18.10.1996 regarding his no objection of transfer of suit land in favour of Ravinder Singh and the same is result of fraud and fabrication. On conclusion of trial, the learned Trial Court disbelieved the version of the plaintiff and dismissed the suit as also the learned First Appellate Court below dismissed his appeal. Hence this Regular Second Appeal. Having heard learned counsel for the appellant, this Court is of the considered view that no question of law warranting admission of the appeal arises for determination in this appeal. There is no dispute of the fact that although in the revenue record from 1986-87 onwards there was name of father of plaintiff as in cultivating possession of the suit land and after him the name of plaintiff was incorporated therein, but recitals of affidavit dated 18.10.1996 executed by the plaintiff, showed the possession of Ravinder Singh defendant over the suit land since 1988 and the plaintiff also asserted therein that the revenue record is wrongly continuing in the name of the plaintiff and he has no objection if the same is ordered to be corrected in the name of Ravinder Singh. It has also found that the plaintiff on the same day i.e. 18.10.1996 also filed an application Ex.D5 before the Regular Second Appeal No. 3023 of 2008 3 SHO Police Station Babain intimating that he do not want to take any action on the application which was previously moved by Baljit Singh against Suba Singh and his sons and Ravinder Singh and the Ravinder Singh is in possession of the suit land. Both the affidavit as well as application not only bore the thumb impression of the plaintiff but the affidavit was witnessed by Jhandu Ram Lamberdar, while the plaintiff was identified by Ch. Ram Pal Advocate and attested by the Executive Magistrate. Likewise, the application Ex.D5 was also found to have been witnessed/ attested by Jhandu Ram Lamberdar, Pritam Singh Member Panchayat and Mahender Singh. Not only this, it was found that prior to change in the revenue record in favour of Ravinder Singh, notice was sent to all the concerned persons; a revenue official visited the spot and after the plaintiff admitted the possession of Ravinder Singh on the suit land, order for correction of khasra girdawari in the name of Ravinder Singh was ordered to be made w.e.f. 1991-92. Thus, taking into account these facts, it has concurrently been held that the plea of the plaintiff regarding fraud is baseless. The findings returned by learned First Appellate Court in Para No.14 of its judgment, while affirming the findings of the learned trial court, are relevant and clinches the whole issue, which read as under:- “14. Plaintiff has claimed himself to be tenant under Rajbir and Amrao Singh to whom the land was allotted by the Government being surplus. An application was moved by Baljit Singh before the State Government that the land measuring 32 kanals situated at village Bhartoli was allotted to Amrao Singh and Rajbir; whereas they were not having possession over the land. They had not deposited the requisite installments. Baljit Singh was having possession over the land since the year 1966 continuously. Baljit has prayed for cancellation of the allotment in favour of Rajbir and Amrao Singh and making allotment of the land in his own favour. On the said application, notice was issued to Rajbir and Amrao Singh. The applications were moved by them seeking permission to deposit the Regular Second Appeal No. 3023 of 2008 4 installments. Permission was not granted by the State Government and the allotment in their favour was ordered to be cancelled vide order dated 9.12.1996 passed by SDO(Civil), Thanesar Ex.P9. Objections were filed by Rajbir and Amrao Singh. Vide order dated 14.6.2001 the precribed authority adjourned the application moved by Baljit Singh for allotment in his own favour sine-die as the matter was pending before the Civil Court. Appeal was filed against the said order by Rajbir and Amrao singh. Vide order dated 20.2.2002 passed by Collector, Kurukshetra, the appeal was dismissed. Meaning thereby, the allotment in favour of Rajbir and Amrao Singh was cancelled by the State Government and after the cancellation of allotment the suit land vested in the State Government. Ex.P8 is the jamabandi for the year 1996-97 relating to the suit land. In the ownership column name of State Government has been recorded. Similar are the entries in Ex.P9 and Ex.P10 copies of khasra girdawari for the period 1997 to 1998 and for the period 23.10.1997 to 30.10.1999, The whole picture becomes very clear. The revenue record produced by the plaintiff is up to the year 1995, jamabandi till the year 1991-92 and girdawari till the year 1995. After that there is no revenue record in favour of Baljit singh present plaintiff. The ownership as well as cultivating possession has been changed. Previously Rajbir and amarao were owners being allottees and after cancellation of their allotment, the State Government came into ownership. After execution of the affidavits on 18.10.1996 and also moving application before the revenue authorities stating no objection with regard to change of entries in the name of Ravinder defendant, the cultivating possession was changed in favour of Ravinder Singh which is apparent from Ex.P9. Plaintiff has alleged fraud in the execution Regular Second Appeal No. 3023 of 2008 5 of affidavits and application which remain unproved on the record. Fraud has to be proved like a criminal charge and only by stating that his thumb impressions were obtained on blank papers by defendants in collusion with revenue authorities, plaintiff has not succeeded in proving fraud in execution of the affidavits Ex.D8 and Ex.D9 dated 18.10.1996. The learned trial court has rightly observed that the plaintiff has not succeeded in proving that fraud was practiced upon him and illegal possession is being taken from him. During the course of arguments, it was also averred by the plaintiff that after cancellation of allotment in favour of Rajbir and amarao Singh plaintiff became tenant under the State Government. Learned trial court has rightly declined this plea of plaintiff being beyond pleadings.” Now what has been argued on behalf of the appellant is that in this case, temporary injunction was issued in favour of the plaintiff by the learned trial court, as affirmed by the appellate Court below and by this Court in exercise of its revisional jurisdiction, while finding him in possession of the suit property being the tenant and thus, in the background of it, the findings that the plaintiff is not in possession of the suit land are erroneous. A reliance has also been placed on the judgment passed by this Court in Civil Revision No. 1954 of 1997 filed by Ravinder Singh, in whose name the revenue record was entered, against the grant of temporary injunction in favour of plaintiff, which was affirmed by this Court while dismissing the same. But the contention is meritless. The observations, if any made on the basis of some material on record while disposing the application for ad-interim injunction, could not and must not have over-riding affect on the findings returned by the Court on the basis of evidence produced after the full- fledged trial. Moreover, the above-said findings of the learned Lower Appellate Court leave no manner of doubt that the plaintiff not only failed to discharge the burden of his having in possession of the suit land but also that any fraud was practiced upon him while asserting his no objection qua Regular Second Appeal No. 3023 of 2008 6 the transfer of possessory rights in favour of Ravinder Singh. There are concurrent findings of fact recorded by both the Courts below. The findings are based on cogent evidence, oral as well as documentary, and it cannot be concluded that the findings are laconic or they lack the support of evidence. Accordingly, the appeal is dismissed in limine. (ARVIND KUMAR) JUDGE March 5,2009 Jiten