R.S.A. No. 2237 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2237 of 2009 (O&M) Date of decision: 29.05.2009 Bikkar Singh and another ....appellants versus Om Parkash and others ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Lal Singh Sandhu, Advocate, for the appellants. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 6707-C of 2009 This application under Section 151 of the Code of Civil Procedure has been moved for condoning the delay of 25 days in refiling the appeal. For the reasons stated in the application, delay of 25 days in refiling the appeal is ordered to be condoned. C.M. stands allowed. R.S.A. No. 2237 and C.M. No. 6708-C of 2009 This regular second appeal is directed against the judgment and decree dated 4.2.2009 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for injunction, stands decreed. R.S.A. No. 2237 of 2009 (O&M) -2- The plaintiff/respondents brought a suit on the pleadings that the land in dispute is under the tenancy of the plaintiff/respondents since the time of their father, who was duly recorded as tenant over the suit land on 1/3rd batai. The father of the plaintiff/respondents died in the year 1980, however, the revenue record continued showing him to be in possession of the property. On the basis of the documentary evidence, the plaintiffs claimed declaration that they were tenants in possession of the suit property, and consequential relief of injunction was sought against the defendant/appellants, who were the owners of the property in dispute. The suit was contested on he plea that it was the defendant/appellants who were in possession of the property and khasra girdawri by way of spot inspection stood corrected in their name, therefore, the suit deserved to be dismissed. The learned Courts below, on appreciation of evidence, have recorded a concurrent finding of fact that no reliance could be placed on the change in entries in revenue record, as the same was not carried out in accordance with law, nor the defendant/appellants were able to prove the presence of Naib Tehsildar at the time of spot inspection, who ordered the correction of khasra girdawri. Consequently, by accepting the stand of the plaintiff/respondents, the suit has been ordered to be decreed. The learned counsel appearing on behalf of the appellants contends, that the appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the R.S.A. No. 2237 of 2009 (O&M) -3- learned Courts below is result of mis-reading and mis-interpretation of evidence and law, thus, perverse? 2. Whether the learned Courts below could ignore the revenue record to which presumption of truth is attached, to hold that it was the plaintiff/respondents who were in possession of the property in dispute?” In support of the substantial questions of law, the learned counsel for the appellants contends that the learned Courts below have mis-read the evidence in ignoring the revenue record vide which the entries stood corrected in the khasra girdawari by way of spot inspection. The learned Courts below also ignored the well settled law, that the party not in possession is not entitled to injunction, therefore, the judgment and decree passed by the learned Courts below is on the face of it perverse, and deserves to be set aside. It is also the contention of the learned counsel for the appellants, that the presumption of truth is attached to the revenue entries, once it stood corrected, in absence of any evidence to the contrary, the entries could not be disbelieved. The learned Courts below, therefore, committed an error in decreeing the suit filed by the plaintiff/respondents. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. Once it was not disputed, that the father of the plaintiff/respondents was the tenant over the suit property on 1/3rd batai, and that even after his death the revenue entries in his name continued, it could not be said that it was the defendant/appellants, who were in possession of the property, as the tenancy was heritable and R.S.A. No. 2237 of 2009 (O&M) -4- tenancy vested in the plaintiff/respondents immediately on death of their father. In absence of any evidence to show as to how the possession was surrendered by the tenant in favour of the landlord, it could not be held, that the defendant/appellants came into possession merely because revenue authorities changed the khasra girdawri in absence of the plaintiff/respondents. The concurrent findings of fact recorded on appreciation of evidence and cannot be said to be outcome of mis-reading of evidence and law. No fault can be found with the finding recorded by the learned Courts below in rejecting the revenue record in view of the admitted position, that father of the plaintiff/appellants was tenant on 1/3rd Batai and there was no evidence of surrender of possession. The presumption of truth attached to the revenue entries, therefore, stood rebutted. The plaintiff/respondents being in possession were entitled to injunction granted. For the reasons stated, the substantial questions of law raised are answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge May 29, 2009 R.S.