RSA No. 2920 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2920 of 2008(O&M) Date of Decision: February 10, 2010 Prem Chand ...... Appellant Versus Ramesh Chand and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Ravinder Malik, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the courts below decreeing the suit of the respondents for injunction restraining the appellant from illegally interfering in their possession over the land in dispute. Both the courts have concurrently found that even though the vendor of the appellant was one of the co-sharers of the land yet the respondents were in possession as tenants Gair Marusi. The Courts relied upon the revenue record from the year 1990 to 2004 to come to this conclusion. The following questions have been proposed:- i) Whether misreading of oral as well as documentary evidence by the courts below amounts to substantial question of law? ii)Whether the suit for permanent injunction claiming to be RSA No. 2920 of 2008(O&M) 2 owner in possession without seeking declaration is maintainable? iii)Whether the judgment and decree of both the courts below is based on conjectures and surmises? It would be seen that questions No (i) and (iii) are pure questions of fact. Learned counsel has taken me through the findings of both the Courts below recorded thereon but has not been able to persuade me that the said findings are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. He has, however, argued that on the basis of the sale deed in his favour the appellant had to be considered to be in possession. In this context he has relied upon M.Kallappa Setty v. M.V.Lakshminarayana Rao reported as AIR 1972 SC 2299 wherein the Hon'ble Supreme Court held as follows:- “5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by RSA No. 2920 of 2008(O&M) 3 the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore in our opinion the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief no.2.” There is no dispute with this proposition of law. No doubt sale deed is a relevant document but it has not been denied that as a consequence of the sale deed, for a period of merely five years before the suit was filed, neither any mutation was got sanctioned in favour of the appellant nor his possession was recorded in any revenue record. As regards question No. (ii) respondents only claimed protection from illegal dispossession. Consequently there was no requirement for them to seek a declaration. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE February 10, 2010 sunita