R.S.A. No.1936 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1936 of 2006 Date of Decision:3.11.2008 Baldev Singh and another .....Appellants Vs. Tarsem Kumar and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Sanjiv Gupta, Advocate for the appellants. Mr. C.M. Munjal, Advocate for respondents No.1 to 3. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 25.2.2006 passed by the Court of learned Additional District Judge, Ferozepur whereby he dismissed the appeal preferred against the judgment/ decree dated 9.2.2005 rendered by the Court of learned Additional Civil Judge (Senior Division), Jalalabad dismissing the suit. The facts which form the backdrop of the suit are that Baldev Singh, plaintiff is having 7/2929 shares whereas Central Government is having 1912/2929 share in the total land measuring 146 kanal 9 marlas comprised in Khasra No.396/2/2 situated in the area of Jalalabad. The plaintiffs are in joint possession of the plot measuring 2 kanal 14 marlas as shown in the site plan in which they have constructed a room for the purpose of living and are also enjoying the possession of the same by storing their agricultural implements and tethering their cattle for the last so R.S.A. No.1936 of 2006 -2- many years uninterruptedly. They have also constructed a boundary wall over the plot by spending a lot of money. The entire land measuring 146 kanal 9 marlas bearing afore-mentioned khasra number is being used for residential purposes. Some other persons have also built up their residential houses in this land to which the defendants have no right or title. The defendants made an attempt to disturb the possession of the plaintiffs over the disputed plot a day before the suit was filed but their attempt was foiled with the intervention of the respectables of the locality. During pendency of the suit, the defendants in connivance with the local police started raising construction of a room measuring 10' x 14' and a toilet measuring 7' x 14' on 12.9.1997. Thereafter, they completed its construction illegally and forcibly. They were repeatedly requested to vacate the possession of the room as well as toilet and to hand over the same to the plaintiffs, but to no effect. On these allegations, this suit has been filed for permanent injunction as well as mandatory injunction. The defendants in their written statement have inter-alia pleaded that the suit has become infructuous because the plaintiffs in their reply to the application for appointment of Local Commissioner admitted that the defendants have forcibly encroached upon the suit land after disturbing their possession. As alleged, the defendants were in possession of the suit land even prior to the filing of the suit, which is time barred. The possession of the defendants was in the knowledge of the plaintiffs much before 7.10.1997. The real facts are that the suit property is under the possession of Shiv Mandi, Gandhi Nagar, Jalalabad, which is being managed by Om Shiv Sharnam Dharam Arth Sabha, Jalalabad. The plaintiffs are not in possession of any plot other than 7 marlas on which R.S.A. No.1936 of 2006 -3- their houses have been constructed. Baldev Singh- plaintiff forged the revenue record and succeeded in manipulating rapat No.580 by tampering with the record. The entries in the khasra girdawari cannot be changed without the order of revenue officer. The suit land is in possession of defendants No.1 and 2 who are members of the aforesaid Society. Traversing other facts in the plaint, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether the plaintiffs are in possession over the suit land? OPP 2. Whether the plaintiffs are entitled for permanent injunction? OPP 2A. Whether the plaintiffs are entitled to the relief of Mandatory injunction? OPP 2B. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 3. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit as noted supra. Feeling aggrieved therewith, the plaintiffs went up in appeal which has also been dismissed. Being undaunted and dissatisfied therewith, the plaintiffs have preferred this appeal. I have heard the learned counsel for the parties. The following substantial question of law which arises for determination by this Court:- “Whether once possession is established, the appellants are entitled for decree?” Mr. Sanjiv Gupta, Advocate appearing on behalf of the R.S.A. No.1936 of 2006 -4- appellants strenuously urged that as has been reflected in the copy of jamabandi, Khasra No.396/2/2 (146 kanal 9 marlas) is residential area in which certain other persons have also built their residential houses. The appellants constructed the boundary wall and room over the plot in question which measures 2 kanal 14 marlas out of the above said khasra numbers. So far so, even the defendants have admitted the possession of the plaintiffs over the land and in view of this admission, the suit was liable to be decreed. The Local Commissioner was also appointed to examine the situation. He found that the appellants are in occupation of the property and the defendants have illegally occupied part of the same and raised the room and toilet forcibly and illegally. The findings to the effect that the appellants did not file any suit by invoking the provisions of Section 6 of the Specific Relief Act are also perverse for the reason that it was not necessary for the plaintiffs to file the suit under the said Section. The Rapat Roznamcha No.580 dated 22.8.1994 was duly entered in the presence of Godha Singh - Sarpanch and Jeet Singh - Sarpanch of the village. When the spot inspection was carried out, the appellants were found in possession of the disputed property. To tide over these submissions, Mr. C.M. Munjal, Advocate on behalf of respondents No.1 to 3 argued that the findings returned by both the Courts below are based on documentary evidence and that being so, no holes can be picked therein. I have well considered the rival contentions. The case of the defendants is that Baldev Singh, plaintiff- appellant was working as a private Assistant to the concerned Revenue Patwari Halqa, Jalalabad. He has forged rapat No.580 on the basis of which entries in the khasra R.S.A. No.1936 of 2006 -5- Girdawari were changed without there being an order of Revenue Officer regarding this change. As emanates from the entries in the copy of khasra girdawari from Kharif 1994 to Rabi 1997, earlier the khasra girdawari was being recorded in the name of the owners, i.e., Central Government, etc., regarding the entire land measuring 146 kanal 9 marlas. The khasra girdawari entries were changed for the first time vide rapat No.580 in the name of the plaintiffs regarding the land measuring 2 kanal 14 marlas. They are shown to be in illegal possession of this land in the khasra girdawari. The rapat No.580 on which the plaintiffs have built up their claim revealed that the plaintiffs by approaching the Halqa Patwari prayed that this land owned by the Central Government be entered in their names in the khasra girdawari. This rapat was signed by Baldev Singh, plaintiff as well as Om Parkash and was thumb marked by Piar Singh. It is beyond cavil by now that before changing entries in the khasra girdawari the fact with regards to such change has to be notified to the persons to be effected thereby. The Central Government was to be effected by such change in the entries in the khasra girdawari. There is nothing on the record to show that the order in relation to such change was passed by any Revenue Officer after visiting the spot and after giving notice to the Central Government. Thus, the entries in the khasra girdawari are erroneous being contrary to the provisions of the Punjab Land Revenue Act. Sequelly, no recognition can be accorded thereto. The plaintiffs- appellants have come forward with a plea that they had constructed a boundary wall and a room over the disputed property and they had been paying the revenue in respect of this land. The photostat copies of receipts Mark A and B having been placed on record by the plaintiffs cannot be looked into evidence for their having not been proved R.S.A. No.1936 of 2006 -6- in a manner as provided by law. The evidence trickled from the respective mouths of Banta Singh PW3, Mukhtiar Singh PW4, Kashmir Singh PW5 proprio vigore is not enough to prove the possession of the plaintiffs- appellants over the suit land. A glance through their evidence would reveal that their evidence cannot be made the basis for holding their possession over the land in dispute. The plaintiff- Om Parkash had moved an application seeking appointment of the Local Commissioner making a mention therein that the defendants have started raising construction in the disputed property since 12.9.1995. The suit was filed on 26.7.1997. Thus, obviously, the construction preceded the filing of the suit. If the plaintiffs were in the actual physical possession, they in the natural course of their conduct were expected to file suit forthwith to get the defendants injuncted from raising construction. The Central Government is the owner of the suit property. The same has not been arrayed as a defendant. It appears that the parties of their own have designed to encroach upon this land. The defendants have placed on record an order with regards to the correction of entries in the khasra girdawaries Ex.DA and Ex.DB, which does not pertain to the case between the parties. As a matter of fact, rapat No.580 is the very basis of the right of the plaintiffs which in itself being not based on any order passed by the Revenue Officer or any other competent authority cannot be deemed to be enough to sustain their plea. Mr. Sanjiv Gupta, had been emphatic in the course of arguments that the possession of the plaintiffs has been admitted by the defendants. This admission has not been made by the real owner, i.e., Central Government of the property. That being so, such admission in no way confer any right upon the plaintiffs - appellants. The learned trial Court has observed that “The Central R.S.A. No.1936 of 2006 -7- Government is the owner of suit property. It appears that the plaintiffs and the defendants want to encroach upon this property which is situated at City Jalalabad and is valuable property. The plaintiffs and defendants want to leave no stone unturned for encroaching upon this property. Therefore, the plaintiffs have not come to the Court with clean hands. They want to encroach upon the property of the Central Government. It is the fundamental duty of every citizen of India to protect the property of Government which is meant for public purpose and not to grab such property. Therefore, the plaintiffs are not entitled to seek discretionary relief of injunction. At the same time, the intention of defendants is also not bona-fide. Their intention is also malafide to grab the property of Central Government by dragging the name of religion under this controversy.” To my mind, no contrary view can be taken to these observations. The learned trial Court has observed that “it shows that the plaintiffs are in possession of the land measuring 2 kanal 14 marlas bearing Khasra No.396/2/2min.” But as noted supra, their possession is not based on any legal document. The unlawful possession of a person over the property vesting in the Central or State Government should not be protected. If it is assumed that the plaintiffs were in possession of the above-mentioned land, nonetheless, they being trespassers are disentitled to have the decree sought for in their favour. Sequelly, this appeal being bereft of any merit is dismissed. November 03, 2008 ( HARBANS LAL ) renu JUDGE