RSA No. 2241 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 2241 of 2011 (O&M) Date of Decision: 23.5.2011. Krishan .......Appellant Vs. Smt. Bimla Devi and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Akshay Bhan, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for permanent injunction. The case of the plaintiff in brief was that he was in possession of the suit land for the last more than 12 years as tenant under Chandero, who later on transferred the same in favour of her two daughters namely Krishna and Bimla. Mutation No. 1693 dated 21.3.2001 was sanctioned in this regard. Plaintiff cultivated the suit land under Krishna and Bimla on the same terms. Krishna and Bimla were aunts (Bua) of the plaintiff and due to the close relationship of the parties, plaintiff never obtained any receipt from his aunts qua payment of rent. Plaintiff had moved a petition seeking correction of entries in the khasra girdawari as the name of the plaintiff was not recorded in the entry in the column of cultivation. Krishna and Bimla sold the suit property to defendant No.1 vide sale deed dated 8.1.2007 but the possession of the suit property remained with the plaintiff. Defendants were threatening RSA No. 2241 of 2011 (O&M) -2- to dispossess the plaintiff from the suit land. Hence, the suit for permanent injunction was filed by the plaintiff. Defendants No. 1 and 2, in their written statement, denied the contentions in the plaint. It was averred that the plaintiff was not in possession of the suit land. Rather, the defendants were in possession of the suit land. Defendants No. 4 to 6, in their written statement, admitted that the plaintiff was in possession of the suit land as Mujara Gair Marusi Batai Tihai . Krishna and Bimla were never in possession of the suit land. Defendants No. 3 and 7 were proceeded exparte. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants can be restrained from interfering in the peaceful possession of the plaintiff over the agriculture land fully detailed and described in the head note of the plaint except in due course of law, as he is tenant on 1/3rd batai? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has no cause of action to file the present suit? OPP 4. Whether the plaintiff has suppressed the material facts from the Court? OPD 5. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 6. Relief.” Additional Civil Judge (Senior Division) vide judgment RSA No. 2241 of 2011 (O&M) -3- and decree dated 8.1.2010 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed by the Additional District Judge, vide judgment and decree dated 16.4.2011. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the courts below had erred in dismissing the suit of the plaintiff. In fact, the plaintiff had been successful in establishing that he was in possession of the suit property and hence, his possession was liable to be protected. In support of his argument, learned counsel for the appellant has placed reliance on 'Rame Gowda (D) by LRs versus Mr. Varadappa Naidu (D) by Lrs. and another 2004(1) S.C.C. 769, wherein it was held as under:- “In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.” After hearing the learned counsel for the appellant, I am RSA No. 2241 of 2011 (O&M) -4- of the opinion that the instant appeal deserves dismissal. The case of the plaintiff was that he was in possession of the suit land as a tenant but the plaintiff had failed to establish the said plea. The plaintiff had failed to establish his plea qua possession by producing the revenue record in this regard. The plaintiff had earlier filed civil suit No. 315 RBT of 23.5.2006 for permanent injunction against Dharam Singh and others. The trial court, while deciding the said suit, held that the plaintiff had failed to prove his possession in the capacity of tenant gair marusi on batai tihai but his possession over the suit property stood proved and defendants in the said suit were restrained from dispossessing the plaintiff from the land bearing Khasra Nos. 56//6/2(2-13), 7(8-0), 8 (8-0), 13(8-0), 14(8-0). The plaintiff, however, while filing the present suit had failed to disclose the pendency of the earlier suit. Thus, the plaintiff had not come to the court with clean hands. In these circumstances, the courts below rightly held that the suit of the plaintiff was liable to fail. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 23, 2011 Gurpreet