RSA No. 2763 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2763 of 1985 Date of decision: 29.11.2011 Smt.Parkash Kaur and Others Appellants v. Municipal Corporation, Jalandhar and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. D.S.Bali, Sr.Advocate with Ms. Neha Maan, Advocate for the appellants Ms. Sandip Kaur, Advocate for Mr. S.C.Khunger, Advocate for the respondents ..... JITENDRA CHAUHAN.J The present appeal is directed against the judgment decree and dated 5.6.1985 passed by the Ld. Additional District Judge, Jalandhar whereby the appeal filed by the Municipal Corporation, Jalandhar was partly accepted and the judgment and decree dated 7.4.1983 passed by the Civil Judge Ist Class, Jalandhar Court was upheld to the extent that defendant No.1 appellant was restrained from taking possession of the land measuring 3 kanals 10 marlas in dispute forcibly or illegally, otherwise than in due course of law. The brief facts of the case are that appellants-plaintiffs filed a suit for grant of permanent injunction restraining defendant-respondent No.1 from forcibly,illegally and unlawfully taking possession of the land measuring 3 kanals 10 marlas comprised in Khewat No. 206, Khatuni No. RSA No. 2763 of 1985 2 212, Khasra No. 378/227 (1-12) 228 (1-5), 379/231 (0-31), situated in New Vijay Nagar, Jullundur City as per Jamabandi for the year 1978-79. The further case of the plaintiff is that she alongwith defendant Nos. 2 to 10 are the owners of the land described above. Hem Raj was the co-sharer to the extent of 1/6th share who has since died and in his place Sh. Ranjeet Khanna plazintiff No.;6, Smt. Raj Rani plaintiff No.4 and defendants No. 2 to 7 have been impleaded being his legal heirs. Smt/ Daljit Kaur has also died and her share has been inherited by Smt. Parkash Kaur, plaintiff. Suit of the plaintiffs was contested by defendant-respondent No.1 Municipal Corporation, Jalandhar on the ground that neither the plaintiffs nor the co-sharers are in possession of the suit land. They have no right to raise construction on the portion of the public street. It was further averred that the streets are already in existence and only street and parks are being improved. Therefore, the question of taking possession from the plaintiffs did not arise. From the pleadings of the parties, the following issues were framed:- 1. Whether the Civil Court has no jurisdiction to try this suit? OPD 2. Whether there has been any mis-joinder and non-joinder of necessary parties? If so, its effect? OPD 3. Whether the plaintiffs and defendants No. 2 to 10 are owners in possession of the suit land? OPP 4. Whether the plaintiffs are entitled to the injunction prayed for? OPP 5. Relief” . Learned counsel for the appellants has mainly relied upon the Jamabandi for the year 1978-79, Ex.P1 to show that the plaintiffs were in RSA No. 2763 of 1985 3 possession of the suit land. It was further submitted that the respondent- defendant No.1 could not prove by leading any cogent evidence that there exists any public street on the land in question. It was submitted that Public Street has been well defined under Section 2(43) of the Punjab Municipal Corporation Act. Learned counsel for the appellants submitted that the respondent has failed to prove that the area in question is under street whereas the appellants have successfully demonstrated on the basis of Jamabandi for the year 1978-79 that they were owner in possession of the land in dispute. Therefore, the learned counsel prays that as the respondents have failed to substantiate their stand, the instant appeal deserves to be accepted. On the other hand, learned counsel for Municipal Corporation submitted that from the perusal of the heading of the suit, it is clear that the suit was filed by the appellants for grant of permanent injunction restraining the Corporation from forcibly, illegally and unlawfully taking possession of the land in dispute but the Ld. Trial Court erroneously declared the appellants as owners in possession of the suit land inspite of the fact that the suit in question was simplicitor a suit for permanent injunction and not a suit for declaration. Learned counsel further argued that the Ld. Ist Appellate Court has granted injunction in favour of the appellants and restrained the Corporation from taking the possession of the suit land forcibly or illegally, otherwise than in due course of law. Therefore, no illegality could be found with the judgment dated 5.6.1985 of the Ld. Ist Appellate Court. He further submitted that the appellants are claiming title on the basis of the entries recorded in the Jamabandi for the year 1978-79 RSA No. 2763 of 1985 4 Ex.P1. He referred to the statement of appellant Parkash Kaur that there was a title deed in favour of the plaintiff and the same is lying at her residence. Therefore, Ld. Counsel argued that an adverse inference is required to be drawn against the appellants as the best evidence which is in their possession has been withheld by them. He made reference to the judgments of Hon'ble the Apex Court in the case of S.V.R. Mudaliar v. Mrs. Rajabu F.Buhari, 1995 (2) Recent Revenue Reports 401 and of this Court in Gita Ram Kalsy vs. Arjan Singh Kalsy 1996(2) ( P & H) Recent Revenue Reports 303 . Learned counsel next raised the argument that no benefit can be given to the appellants on the ground that respondent-Corporation has not produced any evidence to prove the ownership of the Corporation. It is submitted that that the appellants are the plaintiffs and being plaintiffs they are to prove their case independently and cannot take the benefit of the weakness of the defence. Learned counsel lastly submits that inspite of the fact that the present appeal is pending adjudication since 1985, no effort has been made by the appellants to lead any additional evidence to produce on record any sale deed in order to substantiate their ownership over the property in dispute. Therefore, the Ld. counsel prays for the dismissal of the present appeal. I have heard the learned counsel for the parties and perused the file. “The only point to be determined in this appeal is as to whether the judgment and decree of the Ist Appellate Court is perverse and against law and facts?” RSA No. 2763 of 1985 5 The appellants have established their right of ownership on the basis of Jamabandi, Ex. P1 for the year 1978-79. From the perusal of the headnote of the civil suit filed before the trial court, it is made clear that the suit was filed for the grant of permanent injunction restraining the Corporation from forcibly, illegally and unlawfully taking possession of the said land. Thus the suit filed by the plaintiffs-appellants was simplicitor a suit for permanent injunction and not a suit for mere declaration. No adverse inference for non production of sale-deed can be drawn against the plaintiffs as they have inherited the property. Jamabandi Ex. P1 is sufficient proof to establish the ownership and possession. Jamabandi is the best document of title unless and until it is rebutted by a cogent evidence. It was the duty of the Municipal Corporation to rebut this document, but the Corporation is equally responsible for with-holding the best record of public street available with it. No documents viz-a-viz property register, plan of public street and any Notification of public street have been produced on record by the Corporation. Presumption of truth is attached to the jamabandi entries, which cannot be ignored. The Corporation ought to have produced some document to prove the land in dispute to be a public street. In view of the fact that no documentary evidence has been produced by the Corporation, jamabandi Ex.P1 has to be believed regarding ownership and possession of owners i.e the plaintiffs. No record declaring the land to be a public street is forthcoming. Once an owner is found to be in possession of the land, he is entitled to retain it without interference of anybody else. Aksh Sajra Ex. D1 produced by the Corporation does not belong to the land fallen under Jamabandi Ex. P1, as admitted by DW1 Sadik Ram, Patwari of the Corporation. No record of acquisition of land as a public street is RSA No. 2763 of 1985 6 brought on record. It is also not the case of the Corporation that the land is being maintained as public street by the Corporation. On the contrary, the assertion made by the appellant is on the basis of the Jamabandi for the year 1978-79. The Ld. Ist Appellate Court has already granted the injunction to the appellants-plaintiffs and the respondent-Corporation has been restrained from taking possession of the land except indue course of law. It is an innocuous relief which will not affect the ownership right of any of the parties. It means that the Corporation will be able to take possession only after proving it as a public street, in appropriate proceedings initiated by it for taking the possession of the land in dispute. No substantial question of law has arisen for adjudication in this regular second appeal. There is no perversity in the impugned judgments. Consequently, the present appeal is dismissed. The judgments and decrees passed by the Ld. Courts below are maintained. However, it is made clear that the respondent-Corporation will not take the possession of the land in dispute except by resorting to the process of law. (JITENDRA CHAUHAN) JUDGE 29.11.2011 MS