R.S.A. No. 1834 of 1992 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1834 of 1992 (O&M) Date of Decision : 27.5.2009 Khem Chand (dead) through L.Rs. .......... Appellant Versus Munshi Ram & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Rajesh Garg, Advocate and Mr. Hitesh Pandit, Advocate for the appellant. Mr. P.K. Mutneja, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The plaintiff / appellant has invoked the jurisdiction of this Court under Section 100 of the Code of Civil Procedure to challenge the judgment and decree dated 29.7.1992, passed by the learned Courts below, vide which suit filed by the plaintiff / appellant for permanent injunction, restraining the defendant / respondents herein from interfering in his peaceful possession stands dismissed. The case set up by the plaintiff / appellant was, that he was tenant at will over the property in dispute, and that the defendant / respondents were interfering in his peaceful possession. The claim qua tenancy was based on an order dated 25.11.1968, passed by the Asstt. R.S.A. No. 1834 of 1992 2 Collector, Jhajjar holding the plaintiff / appellant to be tenant at will. The plea raised was, that his possession as tenant was, thus, established on the basis of order passed by the Asstt. Collector, Jhajjar. The suit was contested by the defendant/ respondents by claiming, that the defendant / respondents were owner in possession on the basis of sale deed dated 20.8.1981 executed by Ved Parkash, the registered owner of the property. It was also the case set up by the defendant / respondents, that possession of the suit property was surrendered by defendant / appellant on receipt of Rs. 3,000/- from Ved Parkash. The defendant / respondents claimed, that at the time of execution of the sale deed the possession was handed over to the defendant / respondents by the vendor i.e. Shri Ved Parkash. It is not in dispute, that prior to filing of the suit the plaintiff / appellant initiated proceedings under Section 145 Cr.P.C. in the year 1983. In the said proceedings, the Executive Magistrate held the plaintiff / appellant to be in possession of the property in dispute. The defendant / respondents preferred an appeal against the order passed by the Executive Magistrate. The learned Addl. Sessions Judge reversed the findings, holding the plaintiff / appellant to be in possession. The learned Addl. Sessions Judge in appeal held, that it was the defendant / respondents who were in possession of the suit property. The plaintiff / appellant challenged the order passed by the learned Addl. Sessions Judge by filing a criminal revision in this Court. The criminal revision filed by the plaintiff / appellant was dismissed. However, this Court was pleased to observe, that findings recorded by the learned Addl. Sessions Judge should R.S.A. No. 1834 of 1992 3 not come in way of pending civil suit between the parties. In support of the case the plaintiff / appellant produced copies of jamabandi and khasra / girdawaris, which were duly exhibited as Ex. P-1 to P-7, wherein the plaintiff / appellant was shown to be in possession of the property in dispute. On the basis of revenue record the plaintiff / appellant claimed, that he was entitled to injunction, as he was dispossessed from the property after filing of the suit. The defendant / respondent adduced evidence to prove the payment of Rs. 3,000/- in consideration of taking possession from the plaintiff / appellant by Shri Ved Parkash. On appreciation of evidence, the learned Courts below recorded a concurrent finding, that the plaintiff was not in possession of the suit land on the date of filing of suit. It was held, that prior to filing of the suit it was the plaintiff / appellant, who was tenant at will. The learned Courts below also recorded a concurrent finding, that the defendant / respondents, were owners in possession of the suit property since the date of purchase i.e. 20.4.1981. It was in view of the findings, that the plaintiff / appellant had failed to prove his possession on the date of filing of the suit, the suit for injunction was held to be not maintainable. The suit filed by the plaintiff / appellant was also held to be time barred as plaintiff was held to be dispossessed from the property in dispute in the year 1979, when he surrendered his possession on receipt of Rs. 3,000/- from Ved Parkash, the previous owner. The suit having been not filed within one year of the date of dispossession. The learned Courts below were pleased to hold, that the R.S.A. No. 1834 of 1992 4 suit filed by the plaintiff / appellant was barred by limitation. The special costs claimed by the defendant / respondents were declined. The concurrent finding of fact is challenged by the plaintiff / appellant by raising the following substantial questions of law :- 1. Whether the learned Courts below had taken into consideration inadmissible evidence and ignored the admissible evidence, to record the finding that the plaintiff / appellant was not in possession, therefore, the findings being perverse are liable to be set aside ? 2. Whether the learned Courts below could hold the suit to be time barred when the plaintiff / appellant was in possession of the property in dispute at the time of filing of the suit ? In support of the substantial questions of law the learned counsel for the appellant contended, that the learned Courts below committed an error in placing reliance on the oral evidence in preference to the documentary evidence i.e. the revenue entries Ex. P-1 to Ex. P7, showing the possession to be that of the plaintiff / appellant. It is also the contention of the learned counsel for the appellant, that in view of the documentary evidence, the learned Courts below committed an error in taking into consideration the oral evidence, which was not admissible being contrary to the documentary evidence produced by the plaintiff / appellant. The plea, therefore, is that the learned courts below erred in law in coming to the conclusion, that the appellant was dispossessed in the year 1979 on receipt of consideration Rs. 3,000/-. The learned counsel for the appellant also contended, that the R.S.A. No. 1834 of 1992 5 defendant / respondents produced no documentary evidence either to prove payment of Rs. 3,000/- nor showing handing over of possession by the plaintiff / appellants. The learned Courts below, therefore, wrongly held, that the presumption of truth attached to revenue record stood rebutted. The learned counsel for the appellant also contended, that the learned Courts below wrongly held, that the suit was time barred even though it was proved, that the plaintiff / appellant was dispossessed after filing of the suit, therefore, the suit filed by the plaintiff / appellant could not be said to be barred by limitation. Though the arguments raised by the learned counsel for the appellant look attractive on the face of it, but on going into the depth, I find no force in the contentions raised, for the reasons hereinafter mentioned. It is not in dispute, that the plaintiff / appellant is admittedly not in possession of the suit property. It is further not in dispute, that prior to filing of the civil suit, the plaintiff / appellant had initiated the proceedings under Section 145 Cr.P.C. claiming, that he was in possession of the suit property and there was likelihood of breach of peace as his possession, was being disturbed. The learned Addl. Sessions Judge, in appeal was pleased to hold, that it were the defendant / respondents, who were in possession of the suit property on the date of initiation of proceedings under Section 145 Cr.P.C. The findings recorded by the learned Addl. Sessions Judge itself could not be a ground to non-suit the plaintiff / appellant as this Court was pleased to observe, that the civil court should take the decision independent of the findings recorded by the learned Addl. Sessions Judge. In spite of observations of this Court in the criminal revision, the plaintiff / appellant R.S.A. No. 1834 of 1992 6 did not lead any evidence to prove the date of his dispossession. On the other hand, the defendant / respondents led evidence to prove their possession over the suit property as also the fact, that the possession was in fact handed over to Sh. Ved Parkash, the previous owner on receipt of consideration of Rs. 3,000/-. The plaintiff / appellant merely made a bald statement about his dispossession after the filing of the suit without leading any independent evidence. The learned Courts below, on appreciation of evidence rightly came to the conclusion, that the plaintiff / appellant was not in possession of the suit property on the date of filing of suit for injunction. The suit filed, therefore, was not competent. The remedy with the plaintiff / appellant in that situation was to seek possession, that too within one year of his dispossession. The plaintiff / appellant was dispossessed in the year 1979 whereas the suit was filed by the plaintiff / appellant in the year 1985, after having failed in criminal proceedings. The suit was, thus, rightly held to be time barred also. The contention of the learned counsel for the appellant, that documentary evidence was required to be preferred to the oral evidence on the principle, that person may lie but the documents do not lie, cannot be accepted in view of the admission of the plaintiff / appellant, that he was dispossessed during the pendency of the suit but he failed to prove the date of dispossession by leading any evidence, rather it was found as a fact that it was defendant / respondents who were in possession since the date of purchase. R.S.A. No. 1834 of 1992 7 The learned Courts below on appreciation of evidence held, that the plaintiff / appellant was dispossessed in the year 1979. The substantial questions of law raised are answered against the appellant for the reasons stated above. The appeal being without any merit is ordered to be dismissed, but with no order as to costs. 27.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE