R.S.A. No.3686 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3686 of 2007 Date of Decision:20.11.2008 Ajit Singh .....Appellant Vs. Jaspal Singh and another .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. D.S. Gurna, Advocate for the appellant. Mr. Sandeep Kumar Sharma, Advocate for the respondents. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 17.8.2007 passed by the Court of learned Additional District Judge (Adhoc)-cum-Presiding Officer, Fast Track Court, Rupnagar whereby he dismissed the appeal preferred against the judgment/ decree dated 10.11.2005 rendered by the Court of learned Civil Judge (Junior Division), Ropar vide which he decreed the suit for permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiffs forcibly and illegally except in due course of law. The factual matrix is that the plaintiffs are the owners in possession of the suit property in which the defendant has got no right, title or interest. The defendant is bent upon to interfere in the possession of the plaintiffs forcibly and illegally. On these allegations, the suit has been filed for perpetual injunction restraining the defendant from unlawful dispossession of the plaintiffs from the suit property. In his written statement, the defendant has inter-alia pleaded R.S.A. No.3686 of 2007 -2- that Ajit Singh, defendant and Gurcharan Singh son of Dhera Singh alias Dheru son of Pakhar Singh are brothers inter-se. Gurcharan Singh was in the Army whereas Ajit Singh was staying in the Village. Khasra Nos.243 and 244 as recorded were owned by both of them. They being the joint owners, the defendant raised construction in the shape of a house in Khasra No.244 with the consent of Gurcharan Singh. It was orally agreed between them that Khasra No.243 will be enjoyed by Gurcharan Singh, but mistakenly or otherwise Gurcharan Singh entered into an oral exchange with the plaintiffs regarding Khasra No.244 though the plaintiffs had never been in possession of this khasra number. That Khasra No.243 is still lying vacant at the spot. The plaintiffs are in the actual physical possession thereof. The dispute regarding the suit property had arisen and a compromise was effected on 6.7.1994 by both the parties. The original compromise was given by the parties to the Station House Officer, Police Station, Morinda and a copy thereof was retained by the parties. Traversing other facts in the plaint, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether plaintiffs are in possession of the suit property as owner? OPP 2. Whether plaintiffs are entitled to the injunction as prayed for? OPP 3. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed earlier. Feeling aggrieved therewith, the defendant went up in appeal which has also been dismissed by the Court of learned Additional District Judge R.S.A. No.3686 of 2007 -3- (Adhoc)-cum-Presiding Officer, Fast Track Court, Rupnagar. I have heard the learned counsel for the parties, besides perusing the record as well as the findings returned by both the Courts below with due care and circumspection. The following substantial questions of law arise for determination by this Court:- 1. Whether a suit for permanent injunction lie against the person who is already in peaceful and settled possession of the suit property? 2. Whether in the present case the fact with regard to the building of house and installation of electric meter was not a fact-in-issue and thus was not to be got determined by the local commissioner? Mr. D.S. Gurna, Advocate appearing on behalf of the appellant urged with great eloquence that it is not the case of the plaintiffs/ respondents that they have themselves constructed the house in dispute nor is their case that they have got khasra number 244 from appellant's brother Gurcharan Singh. As would be apparent from the copy of jamabandi for the year 1994-95, the disputed land is a bara (enclosure) and Ex.D.5, the mutation regarding exchange entered on 14.7.1999 also does not show that there stood a house on Khasra No.244. The entry of house appeared in copy of khasra girdawari Ex.P.2 for the first time in the year 2000. Thus, evidently, the plaintiffs - respondents and Gurcharan Singh by taking an undue advantage of revenue entries connived to grab the built up house of the appellant. It is further argued that the fact in issue in the instant case was as to when the house was constructed, i.e., either prior to the oral R.S.A. No.3686 of 2007 -4- exchange or after it. This fact has not been proved at all. However, the presumption of correctness attaches to the entries in the jamabandi, but these are rebuttable. The appellant has not been able to rebut the same. The plaintiffs- respondents have not produced even an iota of evidence on the record to prove that the house was either constructed by them or their transferor and that they are living in it. An application for appointment of the Local Commissioner was moved which was dismissed wrongly and illegally by the learned trial Court. In these premises, the judgments recorded by both the Courts below are liable to be set aside. To tide over these submissions, Mr. Sandeep Kumar Sharma, Advocate representing the plaintiffs- respondents argued that a glance through the findings returned by both the Courts below would reveal that no holes can be picked therein. I have well considered the rival contentions. As reflected in Ex.P.1, the copy of jamabandi for the year 1999-2000, the plaintiffs are the joint owners in possession of the land measuring 0 kanal 19 marlas bearing Khasra No.244 which is in dispute. This land is recorded as gair mumkin house. Similar entries exist in Ex.P.2, the copy of khasra girdawari for the years from 2002 to 2003. As per the entries existing in Ex.P.3, the copy of jamabandi for the year 1994-95, Gurcharan Singh was the owner in possession of the disputed khasra No.244 who gave it to the plaintiffs in exchange. The defendant has placed on record the electricity bills Ex.D.1 to D.3 and to prove the same, he has examined Surjit Singh DW3, Lower Divisional Clerk of the office of SDO, Punjab State Electricity Board, Chamkaur Sahib but his evidence does not reveal that these bills pertain to the house existing in the khasra in dispute. In Ex.D.4, the copy of R.S.A. No.3686 of 2007 -5- jamabandi for the year 1999-2000, it has been reflected that the plaintiffs are the joint owners in possession of the disputed khasra. Ex.D.5 purports to be a copy of mutation No.1407 relating to the exchange of land between the plaintiffs and Gurcharan Singh. The defendant- appellant has not adduced any evidence to the effect that the house in dispute was constructed by him, although he has come up with a specific plea in his written statement that he has constructed this house in Khasra No.244 and is residing therein. As alleged by him in his written statement, the alleged exchange in between plaintiffs and Gurcharan Singh was effected only during the year 1996 and 1999. This admission establishes this exchange of land. At this juncture, Mr. Gurna by relying upon the observations made in Re: Ram Rai and another v. Jagdish Mallah (Dead) through LRs and another, 2007(3) Recent Civil Reports 680 pressed into service that this being a suit for perpetual injunction, title is not to be decided. There is no dispute with this proposition of law but the fact remains that the appellant has not adduced any cogent, convincing and clear evidence showing his possession over the property in dispute. The revenue record referred to above clearly demonstrates the ownership as well as possession of the plaintiffs- respondents over the same. Thus, the first substantial question of law is determined against the appellant. Order 26 Rule 9 of the Code of Civil Procedure reads as under:- “Commissions to make local investigations. 9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the R.S.A. No.3686 of 2007 -6- market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” On interpreting the afore-quoted provisions of law, the Local Commissioner herein could not be appointed for ascertaining as to which party was in possession for the simple and obvious reason that the plaintiffs- respondents have adduced plenty of documentary evidence in the nature of revenue record referred to above. Thus, the second substantial question of law also goes against the appellant. On perusing the concurrent findings returned by both the Courts below, it transpires that no interference is warranted therein. Sequelly, this appeal being bereft of any merit is dismissed. November 20, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No