R. S. A. No. 2019 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2019 of 2010 Date of Decision : August 18, 2010 Phool Singh and others .... Appellants Vs. Dharam Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Jain, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 6232-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 73 days in re-filing the appeal is condoned. C. M. No. 6233-C of 2010 : Deficiency in court fee is stated to have been made good. The application is therefore allowed, subject to all just exceptions. Main Appeal : Defendants, having lost in both the courts below, have filed the R. S. A. No. 2019 of 2010 2 instant second appeal. Respondents no.1 to 7 filed suit against the appellants and proforma respondents no.8 to 10. Initially, the suit was filed for permanent injunction alleging that the plaintiffs are owners in possession of suit land measuring 2 bighas 3 biswas comprised of khasra no.211 having purchased it vide sale deed dated 22.06.1977. Defendants, without any right, title or interest in the suit land, tried to dispossess the plaintiffs therefrom illegally and forcibly. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from entering upon the suit land. By amendment of plaint, the plaintiffs alleged that during pendency of the suit, when the Civil Courts were closed for summer vacation in the year 1998, the defendants, taking advantage of vacation, forcibly and illegally raised construction in the suit land. In November 1998, the defendants after dismantling a bathroom constructed earlier, converted it into a room. The defendants thus had taken forcible possession of part of the suit land during pendency of the suit. Accordingly, plaintiffs sought relief of possession of the said portion of the suit land, by claiming to be in continuous possession of the remaining suit land. Defendants contested the suit and denied the plaint allegations. The defendants pleaded that they are owners in possession of 4299 sq. yds. land within phirni/lal dora of the village and the said land is not part of any khasra number. Defendants pleaded that land in their possession is not part R. S. A. No. 2019 of 2010 3 of khasra no.211, which is claimed to have been purchased by the plaintiffs. The defendants are in possession of their land since the time of their forefathers and have constructed their residential house. Their mangers and trees also exist in the suit land. It was denied that the defendants dispossessed the plaintiffs from the suit property during summer vacation of 1998 by raising construction. The plaintiffs were not in possession of the land comprised of khasra no. 211 at the time of filing of suit. It was denied that plaintiffs are owners in possession of the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Karnal, vide judgment and decree dated 03.03.2005, decreed the plaintiffs' suit for vacant possession of the portion of the suit land, which was in possession of the defendants and also decreed the suit for permanent injunction restraining the defendants from interfering in possession of the plaintiffs over the remaining vacant suit land. First appeal preferred by defendants no.1 to 7 has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 18.02.2009. Feeling aggrieved, defendants no.1 to 7 (including legal representatives of defendant no.5) have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. The plaintiffs, besides other evidence, produced sale deed dated R. S. A. No. 2019 of 2010 4 22.06.1977 (Ex.P-2), vide which they purchased the suit land. The plaintiffs have also produced copy of jamabandi for the year 1987-88 (Ex.P-3), copies of khasra girdawari Exs. P-4 to P-7 from kharif 1989 to rabi 1990, from kharif 1996 to rabi 1997, from kharif 1992 to rabi 1993 and from kharif 1998 to rabi 1999. All these documents prove that plaintiffs are owners in possession of the suit land. Of course, the defendants have now encroached upon a part of the suit land. This unrebutted documentary evidence is sufficient to prove the plaintiffs' case. Presumption of correctness has to be given to entry in jamabandi, which has not been rebutted. On the other hand, said presumption is strengthened by entries in khasra girdawari as well as by the sale deed. Learned counsel for the appellants vehemently contended that sale deed was not duly proved as neither any vendor nor any attesting witness of the sale deed has been examined and therefore, Section 68 of the Evidence Act has not been complied with. The contention cannot be accepted. Section 68 of the Evidence Act stipulates that if a document is required by law to be attested, it shall not be used as evidence untill one attesting witness at least has been called for the purpose of proving its execution. However, learned counsel for the appellants has not been able to refer to requirement of any law that sale deed has to be attested by witnesses. Consequently, substantive provision of Section 68 of the Evidence Act is not attracted and it was not mandatory to examine at least R. S. A. No. 2019 of 2010 5 one attesting witness of the sale deed to prove its due execution. On the contrary, one of the vendees has appeared as witness and he was also competent to prove the sale deed being party to it. In addition to it, proviso to Section 68 of the Evidence Act lays down that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with provision of Indian Registration Act, 1908, unless its execution by the person, by whom it purports to have been executed, is specifically denied. In the instant case, sale deed Ex.P-2 is registered sale deed and its execution by its executants i.e. vendors has not been denied. Consequently, for this added reason as well, it was not necessary to call an attesting witness to prove execution of the sale deed. Moreover, entries appeared in revenue record in favour of the plaintiffs pursuant to the sale deed and it would also point to authenticity of the sale deed. Thus, from the documentary evidence, it is clear that plaintiffs are owners of suit land comprised of khasra no.211. Defendants have not pleaded any right, title or interest in the land of khasra no.211. Consequently, the plaintiffs being owners of the suit land, are entitled to possession of portion of the suit land, which is now in the possession of the defendants. The suit has been decreed regarding land of khasra no.211, in which the defendants have no right, title or interest. The plaintiffs having established their ownership over the suit land, there remained no ground to non-suit the plaintiffs. R. S. A. No. 2019 of 2010 6 Learned counsel for the appellants also contended that there is no evidence to depict that plaintiffs ever came in possession of the suit land or that they were dispossessed during pendency of the suit. The contention cannot be accepted. Revenue entries mentioned above clearly proved that plaintiffs did come in possession of the suit land. It is now admitted case that the defendants are in possession of the part of the suit land. Consequently, the aforesaid contention cannot be accepted. There is concurrent finding of fact by both the courts below after appreciation of evidence. The said finding is, in no manner, perverse or illegal warranting interference in second appeal. On the other hand, judgments of the courts below are based on finding of fact. Lower appellate court is the final court of fact. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine being devoid of any merit. August 18, 2010 ( L. N. MITTAL ) monika JUDGE