RSA No.4641 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4641 of 2009 (O&M) Date of Decision: December 15 , 2009 Sukhdev Singh ...........Appellant Versus Darshan Lal and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vinod K.Kataria, Advocate for the appellant. ** Sabina, J. Plaintiff-Khushi Ram filed a suit for declaration . The suit of the plaintiff was decreed by the Additional Civil Judge (Senior Division) Faridkot vide judgment and decree dated 23.1.2009. Aggrieved by the same, defendant-Sukhdev Singh filed an appeal and the same was dismissed by the learned Additional District Judge,Faridkot vide judgment and decree dated 20.8.2009. Hence, the present appeal by the defendant. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:- “ 2. Brief facts of the case are that plaintiff filed a suit through his general attorney Banarasi Dass for declaration that he is owner in RSA No.4641 of 2009 (O&M) 2 possession of the suit land, but in the alternative he has claimed possession of the suit land measuring 18 Kanals 16 Marlas comprised in Khasra No.2150 Min situated in the revenue estate of Kotkapura. He alleged himself to be owner in possession by stating that he mortgaged the suit land alongwith land comprised in Khasra No.2137 with one Sukhdev Singh son of Jangir Singh “Darji Sikh” of Kotkapura and an entry was made in that regard in the Khasra Girdawari of 1976-77 (Kharif). Lateron the land was redeemed by him and an entry was made in that regard qua the land comprised in Khasra No.2137 but due to some omission the entry qua the suit land was not corrected in the revenue record which continued in the name of the mortgagee. Name of grand father of abovesaid Sukhdev Singh was not entered in the revenue record. His name was Harnam Singh. In the jamabandi for the year 1979-80 name of the grand father of Sukhdev Singh is not mentioned. However, in he jamabandi for the year 1984-85 name of grand father of Sukhdev Singh mortgagee has been recorded as Sucha Singh in place of Harnam Singh and this entry continued in the revenue record. Defendant taking advantage of wrong entry in the revenue record filed a suit for injunction against the plaintff, but he never came into the possession of the suit land and had no concern with it. In the Nehri Girdawaris possession over the suit land is recorded in the name of the plaitniff. Defendant is Dhaliwal Jat by caste. In the revenue record defendant has been in possession of the suit land. In its judgment dated 26.4.1997 Court of Civil Judge (Jr.Division) Faridkot, has held that the RSA No.4641 of 2009 (O&M) 3 defendant is in possession of the suit land and as such the plaintiff claims a decree for possession. 3.Defendant in his written statement took preliminary objections that the suit is not maintainable; that the suit is without any cause of action; that the suit is barred by the principle of resjudicata; that the suit is under valued and that the suit is barred by limitation. On merits, it has been admitted that the plaintiff is owner of the suit land which is in possession of the answering defendant for the last about 30 years and it has been held upto the Hon'ble High Court that the answering defendant is in possession of the suit land. He entered the land indispute as a tenant with payment of 1/3rd share of produce i.e. on `Batai' and has shown his ignorance that it was under mortgage with anybody. Rest of the contentions made in the plaint have been denied.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for declaration as prayed for?OPP 2. Whether the plaintiff is owner in possession of the suit property?OPP 3.Whether the suit is not maintainable?OPD 4. Whether the Court has no jurisdiction to try and decide the present suit?OPD 5.Whether the plaintiff has no cause of action to file the present suit?OPD 6.Whether the suit is not properly valued for the purpose of court RSA No.4641 of 2009 (O&M) 4 fee ?OPD 7.Whether the suit is barred by limitation?OPP 8. Relief.” The following additional issues were framed on 21.3.2007:- 7-A.If the plaintiff is not proved to be in possession of suit property;whether the plaintiff is entitled to possession of the suit property from the defendant as alleged?OPP 7-B.Whether the defendant is a tenant under the plaintiff in respect of suit land as alleged? If so its effect?OPP After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiff had filed a suit for declaration of ownership and for confirmation of possession or in the alternative, for actual possession of the suit land. In Civil Suit No. 412 of 14.10.1995, Sukhdev Singh was held to be in possession of the suit property as a tenant. No order of ejectment was passed against him. This Court in RSA No.1617 of 2000 dated 25.1.2005 has passed the following order, as reproduced in the judgment passed by the learned Additional District Judge,:- " Both the Courts below have held that respondent- plaintiff was in possession as per revenue record and presumption of truth, arising out of the said entries under Section 44 of the Punjab Land Revenue Act, 1887, was not rebutted by the appellant-defendant. The appellant took a plea that revenue entries were wrong and the defendant-appellant was owner in possession. The plea, of the appellant being in possession has been rejected for RSA No.4641 of 2009 (O&M) 5 want of any reliable evidence and plea of title has been left open to be decided in any suit which the appellant may filed. Hence this appeal. Learned counsel for the appellant wishes to rely upon a letter of the SDM, which is subsequent to the decree of the courts below. The plaintiffs was never heard before such a letter was written and such a document cannot be looks into in second appeal for the first time. Injunction granted by the courts below is to restrain the appellant from dispossessing the respondent-plaintiff except in due course of law. If the appellant has title to the suit property, he is at liberty to file a suit for possession on the basis of title. Finding regarding possession recorded by the courts below cannot be held to be perverse. No substantial question of law arises. Dismissed." Thus, the appellant was given liberty to file a suit for possession on the basis of title. As per the revenue record, plaintiff was shown to be owner of the suit land. Defendant was described in possession of the suit land as gair marusi bawaja Rehan. However, defendant failed to establish that he had ever paid any rent or had handed over/produced to the plaintiff, In these circumstances, the learned courts below rightly held that the defendant was not a tenant over the property in dispute. Defendant had not pleaded that he had become the owner of the suit property by way of adverse RSA No.4641 of 2009 (O&M) 6 possession. In these circumstances, the Courts below rightly held that the plaintiff who was owner of the suit property was entitled to get the possession of the suit land. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge December 15, 2009 arya