R.S.A.No. 3829 of 2002 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3829 of 2002 (O&M) Date of decision: 14.9. 2009 Pritam Singh ......Appellant Versus Balram Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Palli, Sr. Advocate with Mr.Parminder Singh, Advocate, for the appellant. Mr.S.S.Salar, Advocate, for the respondent Nos. 1 and 2. **** SABINA, J. Plaintiff Pritam Singh filed a suit for declaration and permanent injunction, which was dismissed by the Civil Judge (Sr.Divn.), Sangrur vide judgment and decree dated 10.8.1998. In appeal, the said judgment and decree were upheld by the Additional District Judge, Sangrur vide judgment and decree dated 16.10.2001 R.S.A.No. 3829 of 2002 (O&M) 2 Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The plaintiff filed a suit for declaration and permanent injunction against the defendants on the averments that his father Fateh Singh was cultivating the suit land but he died in the year 1980 and after his death the plaintiff has been cultivating the suit land without payment of any rent or Chakota to the defendants or their father. He is in possession of the land in dispute for the last more than twelve years and his possession is uninterrupted, continuous, open and hostile to the knowledge of the defendants and their father Chand Singh. The entries in the revenue record are in the name of Fateh Singh, deceased father of the plaintiff and the latest Khasra Girdawari has been entered in the name of plaintiff. He has become owner of the suit land by way of adverse possession. 3. Notice of this suit was given to the defendants on which they appeared and filed a written statement wherein they pleaded that Fateh Singh was in possession of the suit land when the same was allotted to Chand Singh, their father. Said Fateh Singh and others challenged the validity of allotment order dated R.S.A.No. 3829 of 2002 (O&M) 3 25.6.1971 by filing a civil suit which was dismissed by the court on 8.5.1978. The appeal against the judgment and decree of the Trial Court was also dismissed on 3.4.1980 by Shri R.P.Anand, the then learned Additional District Judge, Sangrur. It is further pleaded that Chand Singh, father of the defendants entered into possession of suit land and remained in possession uptil his death and after his death the defendants came into possession of the suit land. It is averred that the plaintiff never remained in possession of the suit land. It is also averred that on 20.4.1995 the defendants entered into an agreement to sell the suit land in favour of Joginder Singh and Sukhwant Singh and delivered possession of the suit land to them and now they are in cultivating possession of the same. From the pleadings of the parties, the following issues were framed by the learned trial court:- 1. Whether the plaintiff is owner in possession of the suit land?OPP 2. Whether the plaintiff has become owner of the suit land by way of adverse possession?OPP 3. Whether plaintiff is entitled to injunction as prayed for?OPP 4. Whether suit of the plaintiff is not maintainable R.S.A.No. 3829 of 2002 (O&M) 4 in the present form?OPD 5. Whether plaintiff is estopped by his act and conduct to file the suit?OPD 6. Whether plaintiff has no locus standi to file present suit?OPD 7. Relief.” Learned counsel for the appellant has submitted that although the suit had been filed for declaration that the plaintiff was in exclusive possession of the suit property as an owner and permanent injunction restraining the defendants from alienating the suit land in any manner, the relief of declaration was not pressed before the first Appellate Court. The plaintiff was in continuous possession of the suit land and hence, could not be dispossessed from the suit land except in due course of law. The suit filed by the brother of the plaintiff for permanent injunction against Chand Singh was decreed by Additional Senior Sub Judge, Sangrur vide judgment and decree dated 9.10.1986. The suit filed by Jaswant Singh (subsequent vendee) against the plaintiff for permanent injunction was pending adjudication. As per the revenue record, the plaintiff was in continuous possession of the suit property. Learned counsel for the respondents, on the other hand, has submitted that the plaintiff had failed to establish that he was in possession of the suit property. Hence, the suit of the plaintiff had been rightly dismissed. The judgment and decree dated 9.10.1986 R.S.A.No. 3829 of 2002 (O&M) 5 had not been proved on record before the trial Court. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The controversy involved in this appeal is only to the extent as to whether the plaintiff is entitled for decree of permanent injunction restraining the defendants from interfering in his peaceful possession. Admittedly, the suit land was allotted to Chand Singh, father of the defendants. Fateh Singh and the present plaintiff had earlier sought relief of permanent injunction on the basis of possession and the same was dismissed. In these circumstances, learned Additional District Judge rightly held that the relief of permanent injunction could not be granted to the plaintiff. As per the revenue record, Fateh Singh, father of the plaintiff, is described to be in possession of the suit property. Admittedly, Fateh Singh died in the year 1980 but the entries in the revenue record continued in favour of Fateh Singh qua possession over the suit land. The fact that the allotment of the land was made in favour of Chand Singh was reflected in the jamabandi for the year 1970-1971. The allotment of the suit land in favour of Chand Singh was challenged by Fateh Singh and his sons including the present plaintiff and the said suit was dismissed. It has been noticed by the learned Additional District Judge that in an earlier suit filed by the plaintiff decree for permanent injunction was not granted to the plaintiff nor it was claimed by him. R.S.A.No. 3829 of 2002 (O&M) 6 Against the said judgment and decree dated 8.5.1978, civil appeal was filed and the same was dismissed vide judgment dated 3.4.1980 Ex.D-2. The following observations were made by the learned appellate Court in the said case as reproduced in para 6 of the impugned judgment passed by the learned Additional District Judge: “ Lastly, the counsel for the appellants pointed out that the appellants are in possession and their possession should be protected. I am afraid there is no such relief claimed in the present suit and so the relief cannot be granted. To the contrary, there is a copy of judgment on the file, which is Ex.DA/1 and from the same I find that the appellants filed separate suit for perpetual injunction restraining the respondents No.2 to 7 from dispossessing them from the land in question, but the said suit was dismissed. Ex.DA/2 is the copy of the judgment of the appellate Court which shows that the appeal of the appellants was also dismissed. In this situation without any specific prayer to that effect to grant any relief on those lines would amount to mutilation of the previous judgments of the civil Courts which are not the subject matter of the suit. Hence, no relief can be granted.” Both the Courts below, after appreciating the evidence led by the parties, gave a finding of fact that the plaintiff had R.S.A.No. 3829 of 2002 (O&M) 7 failed to establish that he was in possession of the suit land. The said finding of fact cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 14, 2009 anita