R. S. A. No. 1842 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1842 of 2011 (O&M) Date of Decision : April 28, 2011 Smt. Anita Singh and others .... Appellants Vs. Jakir Hussain and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. N. D. Achint, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5200-C of 2011 : Allowed as prayed for. Main Appeal : Defendants no.1, 2 and 4, who were successful in the trial court, but have been partly unsuccessful in the lower appellate court, are in second appeal. Suit was filed by plaintiff Tayyub Hussain (since deceased and represented by respondents no.1 and 2 herein) against appellants and other respondents. R. S. A. No. 1842 of 2011 (O&M) 2 Defendants no.1 to 11 and 11-A i.e. appellants and proforma respondents no.3 to 10 and 79 were impleaded as main defendants, whereas proforma respondents no.11 to 78 (including predecessors of some of them since deceased) were impleaded as proforma defendants no.12 to 41. However, later on, proforma defendants no.12 to 41 were given up and so also defendants no.5 to 10 and 11-A. Plaintiff alleged that he is in possession of the suit land measuring 146 kanals 04 marlas as tenant continuously for more than 30 years preceding the filing of the suit on nominal rent of Rs.1,600/- per annum, and therefore, the plaintiff acquired occupancy rights in the suit land and resultantly, became owner thereof. It was also pleaded that sale deeds dated 15.11.1996 executed by defendants no.6 to 11 through their general attorney Dharam Chand in favour of defendants no.1 to 4 are also, therefore, illegal and null and void. It was also pleaded that Dharam Chand was not appointed as general attorney by defendants no.6 to 11. Relief of permanent injunction restraining the defendants from interfering in possession and ownership of the plaintiff over the suit land and from changing nature thereof and from alienating the same was also claimed. Defendants no.1 to 4 contested the suit and broadly denied the plaint allegations. It was inter alia pleaded that suit land was leased out to plaintiff for fixed period of one year i.e. 1966-67 on fixed amount of Rs.1,600/- as rent and after expiry of lease period of one year, possession R. S. A. No. 1842 of 2011 (O&M) 3 was delivered back by the plaintiff to the then owners of the suit land and thereafter, no fresh tenancy or lease was created in favour of the plaintiff. It was denied that plaintiff is tenant or is in possession of the suit land or remained tenant or in possession thereof for more than 30 years on Rs.1,600/- per annum as rent. It was pleaded that sale deeds in favour of defendants no.1 to 4 are legal and valid. General Power of Attorney in favour of Dharam Chand is legal. Defendants no.1 to 4 are bona fide purchasers of the suit land. It was denied that plaintiff acquired occupancy rights in suit land and consequently became owner thereof. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Nuh, vide judgment and decree dated 31.01.2008, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been partly allowed by learned Additional District Judge, Fast Track Court, Nuh and thereby, suit filed by the plaintiff has been partly decreed, thereby restraining the defendants from dispossessing the plaintiff (represented by legal representatives) from the suit land except in due course of law. Feeling aggrieved, defendants no.1, 2 and 4 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Entries in jamabandis since 1966-67 till 2001-02 i.e. till long R. S. A. No. 1842 of 2011 (O&M) 4 after the filing of the suit, which was instituted in the year 1997, continuously depicted possession of the plaintiff over the suit land through his sub-tenants. Entries in jamabandis carry presumption of correctness. The presumption gets reinforced and strengthened if the entries are consistent for a long period as in the instant case. Consequently, on the basis of consistent revenue entries for more than 30 years preceding the filing of the suit, the plaintiff is proved to be in possession of the suit land. If he had not been in possession of the suit land, defendants would have challenged the aforesaid entries at some stage during this long period, but they never did so. Presumption attaching to the aforesaid consistent entries in jamabandis has not been rebutted by oral evidence of the defendants. Therefore, the plaintiff has been rightly found to be in possession of the suit land. Learned counsel for the appellants vehemently contended that only Ashraf Hussain (PW-1) has stepped into the witness-box on behalf of the plaintiff, but Ashraf Hussain himself was born in the year 1968 and therefore, he could have no knowledge about continuous possession of the plaintiff since 1966-67. It was pointed out that the suit was filed by the plaintiff through his general attorney Badruddin, but even Badruddin has not appeared as witness. It was pointed out that courts below have incorrectly recorded that Badruddin appeared as PW-1 and Ashraf Hussain as PW-2, but in fact, only Ashraf Hussain appeared as PW-1 and Badruddin R. S. A. No. 1842 of 2011 (O&M) 5 never stepped into the witness-box. It was contended that Ashraf Hussain was only special attorney of the plaintiff and had no authority to depose on his behalf. It was contended that on the other hand, defendants have examined many witnesses including Lambardaar. I have carefully considered the aforesaid contentions, but the same do not help the appellants. Section 134 of the Evidence Act stipulates that no particular number of witnesses shall in any case be required for the proof of any fact. Even otherwise, it is well settled by precedents that evidence is to be weighed and not counted. It is the quality of evidence and not quantity of evidence that matters. In the instant case, there is revenue record of the suit land and the said record is the best documentary evidence. In view thereof, oral evidence is not of much significance. As regards age of Ashraf Hussain, even if he was born in 1968, he could depose on the basis of his personal knowledge acquired since childhood that plaintiff was continuously in possession since his childhood. In any case, his oral statement would also not be of much significance in the face of documentary evidence supporting the plaintiff's case. Learned counsel for the appellants also contended that alleged sub-tenants of plaintiff, who were impleaded as proforma defendants no.12 to 41, were given up. However, it is beyond comprehension as to how this contention adversely effects the case of the plaintiff because he did not seek any relief against said sub-tenants, but sought relief against the other main R. S. A. No. 1842 of 2011 (O&M) 6 defendants. Learned counsel for the appellants contended that defendants produced affidavits of some of the alleged sub-tenants of the plaintiff affirming that they are not in possession of the suit land and that they have delivered possession of the suit land to defendants no.1 to 4. The contention is completely misconceived. The aforesaid affidavits cannot be read in evidence against the plaintiff because the deponents were not examined as witnesses to afford opportunity to the plaintiff to cross- examine the said deponents. On the contrary, if the said sub-tenants affirmed that they delivered possession of the suit land to defendants no.1 to 4, it would rather depict that plaintiff was in possession of the suit land through the said sub-tenants. It is not the case of the contesting defendants that they took possession from the said sub-tenants. Moreover, defendants no.1 to 4 came into picture only after sale deeds dated 15.11.1996 and the aforesaid contention would depict that till then, plaintiff was in possession through the sub-tenants. There is no pleading that defendants no.1 to 4 took possession from the sub-tenants. It may be added that contesting defendants pleaded that plaintiff was lessee in possession of the suit land for one year i.e. 1966-67. However, there is no cogent evidence on record to depict that the plaintiff thereafter ever surrendered possession of the suit land to the land owners or was ever ejected or dispossessed therefrom. Consequently, the plaintiff continued to be in possession of the suit land. Learned counsel for the appellants next contended that there is R. S. A. No. 1842 of 2011 (O&M) 7 neither any pleading nor any evidence led by the plaintiff to depict that he ever paid any rent to the owners. However, this contention is irrelevant because irrespective of whether the plaintiff paid rent or not, the question to be determined for the purpose of injunction is whether the plaintiff has been in established peaceful possession of the suit land. Payment of rent has no bearing on this question in the facts and circumstances of the instant case, when plaintiff is proved to have been in long established peaceful possession of the suit land since 1966-67. Learned counsel for the appellants also contended that Report Roznamcha Patwari, vide which the plaintiff came in possession of the suit land, has not been proved. This contention is also misconceived and devoid of substance because contesting defendants have themselves pleaded in the written statement that plaintiff came in possession of the suit land in the year 1966-67 i.e. when he came in possession of the suit land for the first time, as per plaintiff's own version also. In view of the aforesaid, I do not find any infirmity, much less illegality or perversity, in the finding of the lower appellate court that plaintiff was proved to be in possession of the suit land. The said finding is based on proper appreciation of evidence and is supported by cogent documentary evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the R. S. A. No. 1842 of 2011 (O&M) 8 instant second appeal. Before parting with the order, it may be noticed that lower appellate court has observed that Civil Court has no jurisdiction to adjudicate upon the plea of plaintiff regarding occupancy rights and consequent ownership over the suit land. I am not making any comment on the said finding because the same is not required for adjudication of the instant second appeal. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. April 28, 2011 ( L. N. MITTAL ) monika JUDGE