IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1848 of 2005 Date of Decision: 15.04.2009 Harpinder Singh and others. ....... Appellants through Shri D.S.Bali, Senior Advocate with Shri Salil Bali, Advocate. Versus Shri Wazir Singh (since deceased) through L.Rs. ....... Respondents through Shri B.S.Bedi,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 15.6.2002 and 30.3.2005 passed respectively by the Additional Civil Judge (Senior Division), Karnal (hereinafter referred to as `the trial Court') and the Additional District Judge, Karnal (described hereinafter as `the First Appellate Court') whereby the suit of plaintiff- Wazir Singh (since deceased and represented now by his legal representatives) was decreed and the appeal of the defendants-appellants was dismissed. Wazir Singh initially filed suit against the appellants for R.S.A.No.1848 of 2005 -2- .... permanent injunction. Subsequently, the plaint was permitted to be amended on an application filed by him as it was alleged that the possession of the suit land had forcibly been taken by the appellants. Accordingly, a prayer for passing a decree for possession of the suit land was made. It was pleaded that he was in possession of the land measuring 157 kanals 7 marlas as lessee on the basis of lease deed dated 18.7.1983. It was further pleaded that Bhagwan Singh son of Gurdit Singh was the owner of the suit land at that time and he had executed the registered lease deed in favour of Wazir Singh for a period of twenty years, i.e., from Kharif,1983 to Rabi,2003, at the rate of Rs.4000/- per annum and since then, he was in possession thereof. The suit land was stated to have been sold to the appellants on 19.7.1983 through a registered sale deed, but therein it was categorically mentioned that they would take possession thereof after the expiry of the period of lease in favour of Wazir Singh. Since then, it was averred that the payment of lease money was being made to the appellants and they were accepting the same without any objection and no receipt was obtained. It was pleaded that on account of some dispute during the election of the Gram Panchayat, the relations between Wazir Singh and the appellants became strained and, therefore, they started making attempts to take possession of the suit land from him. It was alleged that after filing of the suit, Wazir Singh was called by the police in the presence of father of appellant nos. 5 & 6 and was asked to surrender the possession of the suit land and even he along with his two brothers was detained in policy custody R.S.A.No.1848 of 2005 -3- .... on 21.4.1995 and thereafter, they were challaned under Sections 107/151 of the Cr.P.C. It was further alleged that on 22.4.1995, at about 10.00 A.M., the appellants along with 40-50 persons armed with lethal weapons and with the police of Police Station, Nissing, came at the site and took forcible possession of the suit land. Upon notice, the appellants put in appearance and filed their written statement, contesting the suit. However, no written statement was filed to the amended plaint. It was alleged by the appellants that there was no lease deed in favour of Wazir Singh and he was never in possession of the suit land and that they were in possession thereof from the date of sale deed in their favour. The other averments of Wazir Singh were also denied. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for relief of possession of the suit property as prayed for?OPP 2. Whether the plaintiff has got no locus standi?OPD 3. Whether the suit is not maintainable, as alleged?OPD 4. Whether the suit is bad for mis-joinder of parties and non- joinder of necessary parties?OPD 5. Whether the suit is improperly valued for the purposes of court fee and jurisdiction?OPD 6. Relief. After appraisal of the evidence before it, the trial Court, as also R.S.A.No.1848 of 2005 -4- .... the First Appellate Court concluded that the possession of the suit land had been forcibly taken from Wazir Singh on 22.4.1995 during the pendency of the suit which was filed for permanent injunction. Accordingly, the suit was decreed and the appellants were required to hand over the possession of the suit land to Wazir Singh. This has resulted in the Regular Second Appeal by the appellants. Learned counsel for the appellants contended that the findings of the Courts below are perverse. It was submitted that there was a valid sale deed executed in favour of the appellants qua the suit land and the finding that the appellants had dispossessed Wazir Singh is palpably incorrect. It was next contended that whatever material has been taken into account against the appellants, the fact remains that the lease deed was executed in the year 1983 for a period of twenty years, which has expired in the year 2003 and in this view of the matter, as on today, the respondents, who are successors-in-interest of Wazir Singh, have no right to enter upon the suit land even if the findings of the Courts below are affirmed. On the other hand, learned counsel for the respondents contended that both the Courts below have recorded a concurrent and consistent finding that Wazir Singh was forcibly dispossessed from the suit land on 22.4.1995 and further that since no substantial question of law arises in the present appeal, it deserves dismissal. It was further contended that if a person has been forcibly dispossessed, then in similar R.S.A.No.1848 of 2005 -5- .... circumstances, the Apex Court in S.R.Ejaz Versus Tamil Nadu Handloom Weavers Co-operative Society Ltd., 2002(1) R.C.R. (Rent) 331, ordered restoration of possession. I have thoughtfully considered the rival contentions/ submissions and have gone through the record. As noticed above, Wazir Singh had pleaded that there was a lease deed executed in his favour on 18.7.1983 by the owner of the suit land, namely, Shri Bhagwan Singh and he was put in possession thereof for a period of twenty years commencing from Kharif,1983 to Rabi,2003. The appellants had seriously disputed the lease deed and alleged that the same was a sham transaction. The lease deed is dated 18.7.1983, whereas the sale deed in favour of the appellants is dated 19.7.1983. It was also the case of Wazir Singh that he was dispossessed from the suit land after the filing of the suit. If that were so and the possession of Wazir Singh, as a matter of fact, fructified in his favour at some point of time, then it was for him to prove the execution of the lease deed on the basis of which he had entered into possession, but what to talk of any evidence in support of the lease deed, Wazir Singh himself did not even appear in the witness box. Therefore, I am of the opinion that the crucial evidence which could have substantiated the plea of Wazir Singh that there was a validly executed lease deed on the basis of which he entered possession, had been withheld from the Court for the reason best known to him. The other material on record to indicate possession regarding a R.S.A.No.1848 of 2005 -6- .... case having been registered under Sections 107/ 151 of the Cr.P.C. is meaningless. The civil Courts which are seized of the question of answering the factum of possession have to determine the same by testing the pleas raised by the respective parties, who lay their claim on the strength of quality evidence, such as documents which per se show possession or the arrangements which show such a possession. Merely because a case was registered under Sections 107/151 of the Cr.P.C. would not imply and determine the possession in favour of Wazir Singh. Since the lease deed has not been produced and proved by examining the lessor, scribe and attesting witnesses, and other such material which could have established its veracity and execution, I am of the view that Wazir Singh had miserably failed to prove his case and the findings which have been recorded by the Courts below can, at best, be termed to be perverse as they have been arrived at by ignoring the aforesaid crucial aspect. The questions of law which arises for determination in this appeal is, therefore, as under:- “1. Whether in the given set of facts and circumstances of the case, the findings recorded by both the Courts below can be termed to be perverse so as to warrant interference in the Regular Second Appeal or not? 2. If a person claims possession on the basis of a legally recognised and executed document, then whether the Court are right in determining possession in the absence of such a R.S.A.No.1848 of 2005 -7- .... document before it and in the absence of any other plea on which possession was entered?” The Supreme Court in Harjeet Singh and another Versus Amrik Singh and another, (2005) 12 S.C.C. 270, the findings of the Courts below can be interfered in the Regular Second Appeal when some perversity therein has been shown. On the basis of the above discussion and the law laid down by their Lordships in the above mentioned case, the aforesaid questions of law are answered as below:- “(i) The findings recorded by the Courts below regarding possession of Wazir Singh are based on evidence which is an inconclusive indicator, in the absence of the lease deed on the basis of which the possession was claimed by the respondents and also for the reason that Wazir Singh did not appear at all to testify. (ii) The findings recorded by the Courts below are held to be perverse and it is also held that a person who claims title or possession on the strength of a legally executed and recognised document must necessarily prove such a document.” Accordingly, this appeal is accepted and the impugned judgments & decrees are set aside. April 15,2009 ( Mahesh Grover ) “SCM” Judge