AT CHANDIGARH v. Ram Singh

referred to as `the first appellate Court') vide which the appeal of the plaintiff-respondent was accepted, the judgment & decree dated 6.10.1984 of the Senior Sub Judge, Gurdaspur (described hereinafter as `the trial Court') were set aside and his suit for permanent injunction restraining the defendants-appellants from interfering in his peaceful possession over land measuring 7 kanals 11 marlas comprised in khatoni no.62, rectangle no.49, killa no. 5 (7-11) situated in the revenue estate of Village Barriar, Tehsil and District Gurdaspur, was decreed. R.S.A.No.1117 of 1985 -2- .... The case set up by the plaintiff was that originally, Shri Achhar Singh, who had seven sons, was owner of the land in dispute; that he is one of the sons of Shri Achhar Singh; that the defendants are sons of his brother, namely, Gian Singh; that in a family partition, the land in dispute fell to his share and since then, he was in cultivating possession of the same and that his name was mentioned in the revenue entries in the column of cultivation. The defendants, upon notice, appeared and contested the suit. It was pleaded that in the family partition, the land in dispute came to the share of their father-Gian Singh; that before partition, the plaintiff used to cultivate the same and the entries in the revenue record remained the same even thereafter; that in fact, their father was in cultivating possession of the suit land; that at the time death of their father, they were minors and were not in a position to cultivate the suit land; that the plaintiff taking advantage of their tender age and the entries in the revenue record, recently took possession of the suit land; that he merely had cultivated the suit land on account of relationship between them; that now they intend to cultivate the suit land, but the plaintiff had refused to vacate the same. The parties went to trial on the following issues:-

1. Whether the plaintiff is in possession of the suit land? If so, in what capacity and to what effect?OPP

2. Whether the plaintiff is entitled to the injunction prayed for?OPP

3. Relief. R.S.A.No.1117 of 1985 -3- .... After appraisal of evidence on record, the trial Court dismissed the suit by noticing that khasra girdwari, Exhibit D1, contained entries in favour of the defendants as owners in possession of the suit land during khariff,1983 and Rabi,1984. It also took notice of the fact that some proceedings were initiated under Section 145 of the Cr.P.C. which went in favour of the defendants entitling them to retrieve the possession from the plaintiff. However, in appeal, the first appellate Court reversed the findings of the trial Court by observing that the permissive possession of the plaintiff stood established on record as before Rabi,1983, he was recorded to be in possession of the suit land and even thereafter, he will be presumed to have continued so. This has given rise to the instant appeal by the defendants. Learned counsel for the defendants contended that the first appellate Court was wrong in ignoring the order of the Sub Divisional Magistrate in which he, while passing an order under the provisions of Section 145 of the Cr.P.C., observed that the ownership of the suit land was in dispute and the same stood reverted to the defendants. She, thus, submitted that this was sufficient for the Courts below to have returned a finding in favour of the defendants. Shri G.S.Dhillon, Advocate, who was representing the plaintiff in this Court, appeared and stated that he has no instructions to make submissions. I have thoughtfully considered the contentions raised by the R.S.A.No.1117 of 1985 -4- .... counsel for the appellants and have gone through the impugned judgment, as also the record. In my opinion, the trial Court as well as the first appellate Court went wrong in their reasoning. The trial Court ought not to have relied upon the material which was not before it while dismissing the suit of the plaintiff. Likewise, the first appellate Court also proceeded on the premise that since one of the khasra girdawaris, i.e., for khariff, 1983, contained entries in favour of the plaintiff, it will be presumed that subsequent entries also continued in his favour. The reasoning was, thus, unsustainable as no Court should have based its findings on material which was not before it. However, the fact of the matter remains that it was a suit for permanent injunction filed by the plaintiff pleading that the land in dispute came to him by way of family settlement and that he was in possession of the same. If the averments in the written statement are to be seen, then the defendants-appellants themselves admitted the possession of the plaintiff even though they stated that during partition, the suit land had come to their father, but after his death, since they were minors, it was given to the plaintiff for cultivation and that they now intended to cultivate the same and so, they requested him to hand over its possession which was declined. It is not a case initiated by the defendants, but it was case filed by the plaintiff for permanent injunction. The defendants-appellants never filed a suit for permanent injunction and as per their own stand in the written statement, they conceded that the possession of the suit land was with the plaintiff. Even the order of the Executive Magistrate on which acute reliance was R.S.A.No.1117 of 1985 -5- .... place, merely referred that the land should revert back to its owners. There is nothing on record from where it can be inferred that this order of the Executive Magistrate was implemented and the possession reverted back to the defendants. The first appellate Court, while accepting the appeal of the plaintiff, had observed that the plaintiff was entitled to protect their possession and the defendants could retrieve the possession of the suit land in accordance with law. Having regard to the fact that the finding of possession has been returned in favour of the plaintiff-respondent, the first appellate Court was right in observing that the defendants had remedy under law to retrieve the possession of the suit land. This part of the impugned judgment, in my view, does not warrant any interference. On the basis of the above discussion, the appeal is held to be without any merit and is dismissed. September 21,2010 “SCM” ( Mahesh Grover ) Judge