R. S. A. No. 850 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 850 of 2010 Date of Decision : February 22, 2010 Gurbachan Singh .... Appellant Vs. Lakha Singh and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. M. L. Saggar, Senior Advocate with Mr. G. S. Brar, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by Gurbachan Singh – defendant no.1. Lakha Singh – respondent no.1 filed suit against appellant and respondent no.2 Sukhraj Kaur. The plaintiff alleged in the suit that he is in exclusive possession of the suit land measuring 03 kanals 16 marlas comprised of khasra no.297/1 as co-sharer. Defendant no.1 alleges to have purchased land from defendant no.2 co-sharer. The defendants threatened to dispossess the plaintiff forcibly from the suit land otherwise than in due course of law. The plaintiff accordingly sought permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land forcibly, illegally or otherwise than in due course of law. Defendant no.2 was proceeded ex-parte in the trial court. Defendant no.1 appeared through counsel in the first instance, R. S. A. No. 850 of 2010 2 but inspite of adjournments, did not file any written statement and was ultimately proceeded ex-parte, when no one appeared for defendant no.1. The plaintiff led his ex-parte evidence. Learned Civil Judge (Junior Division), Tarn Taran, vide ex-parte judgment and decree dated 18.12.2008, dismissed the suit of the plaintiff. However, first appeal preferred by the plaintiff, which was contested by the defendants, has been allowed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 05.10.2009 and suit of the plaintiff – respondent no.1 has been decreed. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned senior counsel for the appellant and perused the case file. The plaintiff, in his ex-parte evidence, produced copy of jamabandi for the year 2000-01 (Ex.P-1) and copies of khasra girdawari (Ex.P-2 to Ex.P-5), all depicting exclusive possession of the plaintiff over the suit land as co-sharer. The plaintiff himself also appeared as witness and examined three more witnesses. They also supported the plaintiff's case. From this unrebutted evidence, it is proved that the plaintiff is in exclusive possession of the suit land as co-sharer. Consequently, defendants, even as co-sharers, cannot dispossess the plaintiff from the suit land except in due course of law. Learned counsel for the appellant vehemently contended that the plaintiff had already sold land in excess of his share in the joint khata. However, this plea cannot be accepted in the absence of any pleading or evidence. Faced with the aforesaid situation, learned counsel for the appellant referred to C. M. No. 2359-C of 2010 filed in the instant second appeal for additional evidence to place on record jamabandi for the year 2005-06. However, even in the said jamabandi, exclusive possession of the plaintiff over the suit land as co-sharer has been depicted. Learned R. S. A. No. 850 of 2010 3 counsel for the appellant contended that entries of mutation, in the `Remarks' column of jamabandi of the year 2005-06, would reveal that the plaintiff had already sold land in excess of his share. No such inference can be drawn from the aforesaid jamabandi without other evidence. Moreover, the appellant cannot be permitted to lead additional evidence in the absence of any pleading. The aforesaid contention that the plaintiff has sold land in excess of his share in the joint khata is also liable to summary rejection in the absence of pleadings. Accordingly, C. M. No. 2359-C of 2010 for additional evidence is dismissed. There is well reasoned finding by the lower appellate court that the plaintiff is proved to be in exclusive possession of the suit land as co- sharer. Entries in jamabandi carry presumption of correctness. The said presumption has not been rebutted. On the other hand, the said presumption stands strengthened by subsequent entries in khasra girdawari. Plaintiff's oral and documentary evidence stands unrebutted and is sufficient to prove his exclusive possession over the suit land, although as co-sharer. Plaintiff's plea that he is in exclusive possession of the suit land was also not controverted by the appellant by filing written statement. In view of the aforesaid, I find no illegality in the finding of the lower appellate court. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. February 22, 2010 ( L. N. MITTAL ) monika JUDGE