RSA No. 170 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 170 of 2010 Date of decision:- 22.12.2011 Sher Singh ....Appellant Vs. Thakar Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL Present:- Mr. C.M. Munjal, Advocate, for the appellant. Mr. S.K. Aneja, Advocate, for the respondents. ***** A.N. JINDAL, J (ORAL) This is plaintiff's regular second appeal against the judgment dated 22.09.2009 passed by the Additional District Judge, Ferozepur, who concurred with the judgment passed by the trial Court, dismissing the suit of the plaintiff-appellant (herein referred as 'the plaintiff'). Factual matrix of the case is that plaintiff-Sher Singh has been in possession of 17 Kanals of land as tenant at will under the Provincial Government for the last 35/40 years and the defendants-respondents (herein referred as 'the defendants') have no right to interfere in his possession. RSA No. 170 of 2010 2 Upon notice, the suit was contested by the defendants by filing written statement, wherein they raised variety of preliminary objections, inter alia, that the suit is not maintainable in the present form; the plaintiff has no cause of action to file the suit; the suit is bad for non-joinder and mis-joinder of necessary parties and that the plaintiff has not come to the Court with clean hands. On merits, it was submitted that in fact, defendant No.2 and Harbans Singh son of defendant No.1 are in cultivating possession of the suit land as 'gair marusi' and had sown paddy crop for the 'kharif' 2003. Defendant No.2 along with Harbans Singh had moved an application for correction of Khasra Girdawari, which was accepted by the Assistant Collector, IInd Grade, Fazilka on 31.03.2003 and he had ordered correction of Khasra Girdawari in their favour. As such, the suit of the plaintiff is liable to be dismissed. The replication was also filed by the plaintiff. From the pleadings of the parties, the trial Court had framed the following issues:- 1. Whether plaintiff is in possession of the suit land? OPP 2. Whether plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the plaintiff has no cause of action to file the present suit? OPD 4. Whether suit of the plaintiff is not maintainable in the present form? OPD 5. Relief. In order to prove his case, plaintiff himself appeared as PW-1 and also examined Chakar Singh as PW-2. He also tendered into evidence documents Ex.P1 to Ex.P3, Ex.PX and RSA No. 170 of 2010 3 Ex.PY. On the other hand, defendant No.2-Ganda Singh appeared in the witness box as DW-1 and examined Rano Bai (DW-2), Joginder Singh (DW-3) and also proved on record documents Ex.D1 to Ex.D13. The trial Court dismissed the suit of the plaintiff. The appeal preferred by him was also dismissed. The first Appellate Court has mainly relied upon copies of Jamabandis Ex.D5 to Ex.D11, receipt of the challan, Ex.D12 & copy of Khasra Girdawari, Ex.D13 and has observed that the defendants are in possession of the suit land. Learned counsel for the appellant has contended that the defendants had also filed a civil suit No.473/1 dated 24.12.2003 against the plaintiff and that suit was dismissed by the Court of Additional Civil Judge (Senior Division), Fazilka, on 17.03.2008 vide judgment Ex.PX and the appeal preferred against the said judgment was also dismissed by the District Judge, Ferozepur on 22.01.2009. In that suit, the defendants had claimed themselves to be in possession of the suit land since 1970-71 onwards as 'gair marusi'. Consequently, the trial Court had framed following issue No.1 in that suit:- “1. Whether the plaintiffs are entitled to the declaration as prayed for? OPP” The trial Court had dismissed the said suit while giving observations in issue No.1 as under:- “Simple factum of the girdawari being corrected in the names of the plaintiffs wherein it is mentioned that they were in illegal possession of the suit property and no order passed by any competent authority inducting the plaintiffs RSA No. 170 of 2010 4 as tenants being proved or produced on file and in fact, the defendant No.1 being recorded to be in possession over the suit property since 1976-77 as gair marusi tenant, there are no grounds to believe or hold that the plaintiffs were in possession since 1970-71 and their names are liable to be incorporated in the revenue record as in possession and accordingly, issue is answered against the plaintiffs and in favour of the defendants.” The above said findings were also observed by the Appellate Court. It was further contended that any correction of Khasra Girdawari effected during the pendency of the litigation between the parties, had no effect. As such, he prayed for acceptance of the appeal. To the contrary, learned counsel for the defendants has relied upon the order dated 31.03.2003 passed by the Assistant Collector, IInd Grade, Fazilka, in their favour, vide which, Khara Girdawari was corrected and the defendants were held to be 'gair marusi kabaz'. The following substantial questions of law have arisen in this case for determination by this Court:- 1. Whether the judgment dated 17.03.2008 (Ex.PX) passed by the Additional Civil Judge (Senior Division), Fazilka, having attained finality, amounts to res judicata, in order to determine the issue regarding possession in favour of the plaintiff? 2. Whether the correction of Khasra Girdawari made by Assistant Collector, IInd Grade, Fazilka, during the pendency of the suit was relevant to determine possession between the parties? 3. Whether the impugned judgment is perverse being the result of misreading of the documents? While going through the documents, it is observed that RSA No. 170 of 2010 5 copy of Jamabandi for the year 1996-97 (Ex.P1) Khasra Girdawari for the year 1997-98 to 2001-02 (Ex.P2), indicate that the plaintiff is recorded in possession of the suit property. In order to counter the aforesaid documents, the defendants have placed on record copy of challan form (Ex.D1), copy of Jamabandi for the year 2001-02 (Ex.D2), copy of the challan form dated 13.12.2003, copy of the order dated 17.08.2003 passed by the Sub Divisional Magistrate-cum-A.C. Ist Grade, Fazilka (Ex.D5), copy of Khasra Girdawari for the year 2003-04 recorded on the basis of the said order (Ex.D6), copy of Khasra Girdawari for the year 2002-03 (Ex.D7) recorded on the basis of the order Ex.D5, copy of Jamabandi for the year 2006-07 (Ex.D9) and copy of Khasra Girdawari for the year 2003-04 onwards (Ex.D10), copy of Khasra Girdawari for the year 2007-08 (Ex.D11), copy of challan receipt dated 03.11.2008 (Ex.D12), copy of Khasra Girdawari for the year 2008-09 (Ex.D13) and copy of rapt roznamcha waqiyati dated 23.04.2004 Mark-A. On making critical analysis, it transpires that besides documents Ex.P1 and Ex.P2, copy of challan (Ex.D1) indicate that the plaintiff had paid the lease money for the year 1994 to 1997 to the tune of ` 3188/-. Thereafter, the Khasra Girdawari entries continued in his name till the order dated 31.03.2003 passed by the Assistant Collector, IInd Grade, Fazilka, for correction of the Khasra Girdawari, was passed. The appeal against the said order was dismissed on 07.08.2003 (Ex.D5) by the Collector, Fazilka. Actually, the order dated 31.03.2003 was passed by the Tehsildar- cum-Assistant Collector, IInd Grade, Fazilka, for correction of RSA No. 170 of 2010 6 Khasra Girdawari in favour of the defendants on 31.03.2003, whereas the plaintiff had filed the suit against the defendants on 28.11.2002. It is well settled by now that any order passed by the Revenue Officer for correction of Khasra Girdawari during the pendency of the suit, would be of no relevance, whereas the Court has to reach its conclusions independently regarding the question of possession, which is to be decided on the basis of evidence led by the parties on the date of filing of the suit. The aforesaid documents i.e. Ex.D2 to Ex.D12 refer to the order of Tehsildar- cum-Assistant Collector, IInd Grade, Fazilka, which was passed during the pendency of the suit, therefore, both the Courts below appear to have fallen in error while deciding the question of possession in favour of the defendants on the basis of the order dated 31.03.2003 passed by Assistant Collector, IInd Grade, Fazilka. Even no such order has been placed on record by the defendants. It may further be observed that the plaintiff has been shown to be in possession of the suit property till the date of filing of the suit, as the Khasra Girdawari for the year 2002-03 (Ex.D6) placed on record by the defendants, indicates that the plaintiff was in possession of the suit land till then and only red entry was recorded in favour of the defendants vide rapt No.667 dated 21.04.2003. It is not proved on record, as to how the defendants came in possession of the suit property; on what grounds the entry was changed and when and in what manner the possession was handed over to the defendants. Both the parties admit that the disputed land belongs to the Provincial Government. Had there been delivery of RSA No. 170 of 2010 7 possession by the plaintiff to the defendants, then that must have been delivery of possession under the orders of the Provincial Government. But, no such order has been placed on record. The matter with regard to the possession stood already decided by the Civil Court on 17.03.2008 vide judgment Ex.PX. The same question was involved in the said judgment. In the previous suit, one of the issues was also with regard to determining of the possession of the parties and the Additional Civil Judge (Senior Division), Fazilka, while dismissing the said suit of the present defendants (plaintiffs in that suit), declined to hold possession of the present defendants with the following observations:- “20. Further, the plaintiffs proved on record the revenue record relating to the suit property i.e. Jamabandis Ex.P1 to Ex.P5, Ex.P7, Ex.P8 and Ex.P12 and Khasra girdawaris Ex.P6, Ex.P9 to Ex.P11 and Ex.P20 and further produced on record receipt Ex.P16 regarding payment of 'lagaan' pertaining to the suit property. Further, case of the plaintiffs rests on an order of correction of Khasra girdawari dated 31.03.2003 passed by A.C. IInd in favour of the plaintiffs. In this regard, it would be pertinent to go through Ex.P11 Khasra girdawari pertaining to the suit property wherein mention is made regarding correction of girdawari in the names of the plaintiffs and it is mentioned therein that the girdawari was being corrected in the names of the plaintiffs as gair marusi “Najaij Kaabaj”. As such, order of correction of girdawari relied upon by the plaintiffs depicts their possession as illegal possession whereas the defendant, as per the revenue record relating to the suit property, is recorded to be in possession of the suit property as gair marusi tenant. 21. Further, to prove that the plaintiffs were in possession of the suit property as tenants, as depicted in the correction of girdawari, referred to above, did not RSA No. 170 of 2010 8 produce any order on the file of any competent authority so as to prove inception of any tenancy in their favour. Further, in case the plaintiffs were in possession of the suit property as alleged by them since the year 1970-71, it is not clear as to how their name did not figure in the revenue record depicting their possession and what prevented them from getting revenue record corrected earlier. 22. Simple factum of the girdawari being corrected in the names of the plaintiffs wherein it is mentioned that they were in illegal possession of the suit property and no order passed by any competent authority inducting the plaintiffs as tenants being proved or produced on file and in fact, the defendant No.1 being recorded to be in possession over the suit property since 1976-77 as gair marusi tenant, there are no grounds to believe or hold that the plaintiffs were in possession since 1970-71 and their names are liable to be incorporated in the revenue record as in possession and accordingly, issue is answered against the plaintiffs and in favour of the defendants.” It has also not been denied that this judgment was agitated in appeal and the District Judge, Ferozepur, vide judgment dated 22.01.2009, dismissed the same. The aforementioned judgment having become final and question with regard to possession having attained finality, would certainly amount to res judicata in the present suit. Both the Courts below appear to have misread the evidence and have passed the judgments while relying on the documents which were prepared on the basis of the order of correction of Khasra Girdawari passed during the pendency of the suit and none of the documents has been placed on record by the defendants indicating, as to if the defendants were ever leased out the disputed property or they, prior to the years 2002-03, had paid any lease money or obtained the property by way of auction, grant RSA No. 170 of 2010 9 or otherwise. It has also been wrongly observed that the plaintiff has not brought on record any document to prove his possession over the suit property, as the trial Court itself has discussed that besides the oral evidence, the plaintiff has tendered into evidence copy of Jamabandi (Ex.P1) and copy of Khasra Girdawari (Ex.P2). Even the documents placed on record by the defendants, also prove the possession of the plaintiff over the suit land till the filing of the suit. But it is surprising that the Courts below have recorded findings that the plaintiff has failed to prove his possession over the suit land on the date of filing the suit. Consequently, In view of the above discussion, it is observed that the copy of order dated 31.03.2003 (not produced on the record) passed by the Assistant Collector, IInd Grade, Fazilka, for correction of Khasra Girdawari, having been passed during the pendency of the suit, is of no consequence and no document has been placed on record with regard to change of possession and delivery of possession by the plaintiff to the defendants. The plaintiff has been successful in proving his possession over the suit property since long and no evidence has been led indicating that his possession was ever disturbed. The findings recorded by the Additional Civil Judge (Senior Division), Fazilka, vide judgment dated 17.03.2008, having attained finality wherein issue with regard to question of possession was determined against the present defendants, amounts to res judicata in this suit, which was decided subsequently. Since the trial Court and the first Appellate Court have not properly appreciated the evidence in the right perspective and the impugned judgments are based on misreading and mis- RSA No. 170 of 2010 10 appropriation of the evidence, therefore, the same deserve to be reversed. Resultantly, this appeal is accepted; the impugned judgment is set aside and the suit of the plaintiff is decreed as prayed for, with costs of both the Courts below. Decree sheet be prepared accordingly. (A.N.JINDAL) December 22, 2011 JUDGE ajp