RSA No.1141 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1141 of 1985 Date of decision: 02.11.2010 Tarlok Singh and another ......Appellant(s) Versus Gurnam Singh and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. P.S. Bhangu, Advocate for the appellants. Mr. S.S. Swaich, Advocate for LRs of respondent No.1. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit for permanent injunction was decreed in favour of the plaintiff-respondents. As per the facts as averred in the plaint, plaintiff-respondent No.1 was in peaceful and actual cultivating possession of the suit land and previous to him, plaintiff-respondent No.2 was in peaceful cultivating possession of the suit land continuously for the last more than 30 years. The possession of the plaintiff had always been open, peaceful, hostile and uninterrupted to the knowledge of the defendants and thus, the defendants had no right or concern with the suit land who were intending and threatening to dispossess the plaintiff-respondent from the suit land. Hence the present suit was filed. In the written statement filed on behalf of the defendant- appellants, it was pleaded that the defendants were the owners in possession of the suit land and plaintiffs never came in possession of the RSA No.1141 of 1985 2 same. It was further pleaded that since the defendants were owners in possession of the suit land, the question of dispossessing the plaintiff- respondent did not arise. It was further averred that the plaintiffs have filed Civil Suit No.446 of 1980 for permanent injunction against the defendants regarding the suit land and obtained ad interim injunction order from the Court by concealing and suppressing true facts but the said injunction order was vacated by the Court on 2.2.1981 and ultimately the suit was dismissed. The plaintiffs had filed the present suit concealing the true facts. In the replication, the plaintiffs controverted the pleas taken in the written statement and reiterated those of the plaint. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs are owners and in possession of the suit land as alleged? OPP 2. Whether the plaintiffs are entitled to the injunction prayed for? OPP 3. Relief.” Both the parties led evidence in support of their respective case. Before the trial Court, plaintiff No.1 and his witnesses deposed that the plaintiff and his father are in adverse possession of the suit land and the defendants never came in possession of the same and their possession over the suit land was for the last about 40 years. On the other hand, appellant-Tarlok Singh while appearing as DW-1 deposed that they were the owners of the possession of the suit land and they had purchased the same from one Tek Chand and mutation was also sanctioned in their favour. It was further stated that they had sown the crop after the purchase RSA No.1141 of 1985 3 of the suit land and nobody else came in possession of the same. DW-3 and DW-5 also deposed in support of the case of the appellants. Photographs Ex.DW-5/C and DW-5/D were also proved on record identifying the photos of appellants Tarlok Singh and his son Kuldip Singh showing them in possession of the land. It may also be noticed that during the course of arguments before the trial Court, learned counsel for the plaintiff-respondents had submitted before the Court that the earlier suit filed by the plaintiff- respondents was not decided on merits and they were never evicted from the suit land under any law and they continued to be in possession of the suit property. The trial Court after considering the evidence on record and hearing the counsel for the parties observed that the suit was not for declaration of title and it being a suit for permanent injunction, the same can be decided on the basis of present possession. Since from the evidence on record and the fact that the defendants have not been able to prove as to when and how they came in possession of the suit land from the plaintiffs especially when neither they have surrendered the possession nor they were evicted from the suit land under any law, plaintiff No.1 was in continuous possession of the suit property and prior to him his father was in cultivating possession of the same. On the basis of the aforesaid findings, it was held that the plaintiffs were entitled to injunction. Resultantly, a decree restraining the appellants from dispossessing the plaintiff-respondents from the suit land forcibly and illegally except in due process of law, was passed. The relevant observations of the trial Court reads as follows: “After careful consideration I am of the opinion that this suit is not for declaration of title. It is a suit for permanent RSA No.1141 of 1985 4 injunction and can be decided on the basis of the present possession. From the evidenc led by the plaintiff and revenue record as corrected upto date the khasra girdawaries of the suit land stands in the name of the plaintiff. The defendants have not been able to prove as to when and how they came in possession of the suit land from the plaintiff when the plaintiffs ever surrendered the possession nor he was evicted from the suit land under any law. The police report produced by the defendants of no help to the defendant. I, therefore, hold that plaintiff No.1 is in continuous possession of the suit property and prior to him his father plaintiff No.2, was in cultivating possession of the same. This issue is therefore, decided in favour of the plaintiff and against the defendant.” Feeling aggrieved from the aforesaid judgment and decree of the trial court, the defendants filed an appeal before the Lower Appellate Court which was also dismissed. Still not satisfied from the judgment and decree of the Lower Appellate Court, the defendants approached this Court by way of instant appeal. This appeal was admitted for regular hearing vide order dated 17.5.1985. Learned counsel for the appellants framed the following substantial questions of law which are said to be arising out of this appeal: “1. Whether the approach of learned Courts below is illegal, unjustified and erroneous in decreeing the suit for permanent injnction filed by respondents/plaintiffs on the basis of one manipulated revenue entry in their favour? RSA No.1141 of 1985 5 2. Whether the subsequent events in respect of the revenue entries after the filing of suit for permanent injunction could not be taken into consideration for the just and proper decision of the case and controversy regarding the actual possession of the parties on the suit land? 3. Whether a stray entry in the revenue record showing illegally the possession of respondents on the suit land at one point of time could be the sole basis for decreeing the suit for permanent injunction whereas consistent possession being owner of appellants has been proved on the record prior and subsequent till date from filing of the suit for permanent injunction by respondents? 4. Whether the Lower Appellate Court has committed great illegality in not allowing the application under Order 41 Rule 27 CPC filed by the appellants to place on record the rectified Khasra Girdawari and latest Jamabandi in respect of the suit land?” However, during the course of arguments, learned counsel for the appellants contended before this Court that no suit for permanent injunction against the appellants at the instance of the plaintiff-respondents was maintainable, the appellants being the true owners of the suit property. It was further argued by the learned counsel for the appellants that in fact the suit filed by the plaintiff-respondents for permanent injunction on the basis of their title against the appellants being the owners of the suit property on the plea of adverse possession itself was not maintainable. RSA No.1141 of 1985 6 On the other hand, Mr. Surjit Singh Swaich, learned counsel appearing on behalf of the respondents, has vehemently argued that suit of the plaintiffs for permanent injunction restraining the defendants from interfering in the possession of the land was based on possession and the Court can grant decree on proof of possession and the Court cannot go into the question of title of the suit land. In support of the aforesaid argument, learned counsel for the respondents has relied upon a judgment of the Hon’ble Supreme Court in the case of Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs & another 2007(3) RCR (Civil) 680. Learned counsel appearing on behalf of the plaintiff-respondents has further argued that the appellants have failed to establish their title in question as they are not recorded as owners in the revenue record and a mere entry in column No.12 of the jamabandi for the year 1978-79 Ex.P-1 was not sufficient to hold the appellants as owners of the suit property as the aforesaid entry in column No.12 does not carry any presumption of truth. Moreover, the appellants have not produced on record the sale deed in their favour to prove their title on the suit property. Learned counsel for the plaintiff-respondents also relied upon a judgment of the Hon’ble Supreme Court in Des Raj and others v. Bhagat Ram (Dead) & others 2007(1) PLJ 531. On the basis of the aforesaid argument raised, this Court is of the opinion that the following substantial questions of law arise in this appeal: “1. Whether a suit for permanent injunction wherein the plaintiff-respondent has taken the plea that he is owner in possession of the suit land on the basis of his adverse possession is maintainable? 2. Whether an injunction can be granted against the RSA No.1141 of 1985 7 appellants who are the true owners at the asking of the plaintiff-respondents who are claiming their title to the suit property on the plea of adverse possession?” At the outset it may be mentioned that the judgment cited by the counsel for the plaintiff-respondents is of no help to him as in Ramji Rai's case (supra), the learned Apex Court was considering the grant of permanent injunction in a suit filed under Section 38 of the Specific Relief Act, 1963. Section 38 reads as follows:- “Perpetual injunction when granted- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) Whether the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c ) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.” RSA No.1141 of 1985 8 Admittedly, the suit of the plaintiff-respondents does not fall in any of the aforesaid provisions of Section 38 of the aforesaid Act. At this stage, it is relevant to mention that this Court in the cases of Bhim Singh and others v. Zile Singh and others 2008(3) RCR (Civil) 97 and State of Haryana v. Mukesh Kumar and others passed in RSA No.3909 of 2008 decided on 17.3.2009, has authoritatively laid down that a suit filed by the plaintiff for declaration of his title on the plea of adverse possession is not maintainable. While passing the judgment in Mukesh Kumar's case (supra), this Court had also noticed the judgment of the Hon'ble Supreme Court in the case of Krishnamurthy S. Setlur Dead by LRs v. O.V. Narasimha Setty and others 2007(2) RCR (Civil) 313, the facts of which are similar to the facts of Des Raj's case (supra). Not only this, after relying upon various judgments of the Hon’ble Supreme Court, this Court, in the case of Sukhwant Singh v. Divisional Forest Officer, 2009 (3) PLR 432, has held that no injunction can be granted at the asking of an unauthorized person and against the true owner of the suit property. However, the argument of the learned counsel for the respondents before this Court is that the appellants have failed to establish their title over the suit property in question in the present case and they are entitled to protect their possession against the whole world except true owner. The argument raised by the learned counsel for the respondents is without any merit. Firstly by taking the plea of adverse possession in the suit, the appellants has admitted the ownership of the suit property in favour of the defendant-appellants. Not only this, a specific issue was framed as to whether the plaintiffs are owners and in possession of the suit property and the onus to prove the aforesaid issue, was upon the plaintiff-respondents. However, the plaintiff-respondents except RSA No.1141 of 1985 9 leading evidence to the effect that they were in continuous possession of the suit land which according to them was hostile and uninterrupted to the knowledge of the defendant-appellants, had led no other evidence to prove their ownership. It may also be noticed that in the jamabandi Ex.P-1, the plaintiff-respondents have been shown to be in cultivating possession under one Tek Chand whereas in the column of remarks, it has been mentioned that Tarlok Singh-appellant has become owner of the suit property on the basis of sale deed executed by Tek Chand in his favour. Presumption of truth is attached to the said jamabandi. There is no rebuttal evidence to controvert the aforesaid presumption of truth attached to the aforesaid entry. The argument of the learned counsel for the plaintiff-respondents that note in column No.12 does not carry the presumption of truth, is without any basis, though he has admitted that revenue entries in the jamabandi carries presumption of truth unless rebutted. On the basis of the bald argument as aforesaid raised by the learned counsel for the respondents, it is not possible to hold that entries in column No.12 of the jamabandi do not carry presumption of truth whereas according to the learned counsel for the appellants all other entries in column No.1 to 11 carry presumption of truth. Thus, the argument raised by the learned counsel for the plaintiff-respondents does not seem to be plausible and is liable to be rejected. Keeping in view the aforesaid evidence on record and the plea taken by the plaintiff-respondents themselves, there is no escape from the conclusion that the appellants are the owners of the suit property. There is no dispute with the aforesaid proposition of law as canvassed by the learned counsel for the plaintiff-respondents. However, the argument of the learned counsel for the respondents that the plaintiff- respondents, who are in possession of the suit land, are entitled to protect RSA No.1141 of 1985 10 their possession against the whole world except the true owner is again baseless as they have failed to prove themselves to be the owners of the suit property. In this case, as noticed above, it stands established that the defendant-appellants are the owners of the suit land and the plaintiff- respondents were not having the right, title or interest in the suit property and therefore, no injunction can be granted at their asking against the appellants, who are the true owners of the suit land. The suit of the plaintiff-respondents for permanent injunction against the defendant- appellants was not maintainable in view of Sukhwant Singh's case (supra). Thus, they are neither entitled to protect their possession nor to a decree for permanent injunction restraining the appellants from evicting them except in due course of law. Thus, both the questions as framed above are answered in favour of the appellants and against the plaintiff-respondents holding that suit of the plaintiff-respondents for permanent injunction against the defendant-appellants, who are the true owners, was not maintainable. Consequently, the appeal is allowed, judgment and decrees of the Courts below are set aside and suit of the plaintiff-respondents is dismissed. No order as to costs. November 02, 2010 (RAKESH KUMAR GARG) ps JUDGE