Sant Gir alias Basant Gir & Ors. v. Labhu Gir

Gir and others-defendants-appellants impugning the judgment and decree dated 22.2.1986 passed by learned Additional District Judge, Sirsa, who partly accepted the appeal, after setting aside the judgment and decree dated

31.1.1985 passed by the trial Court vide which the suit of plaintiff was decreed. Briefly the facts gathered from the record are that plaintiff is a tenant and in cultivating possession of the land measuring 138 kanals 13 marlas alongwith Sant Gir @ Basant Gir defendant No.1 under Santu landlord on payment of Rs.500/- per annum and he is cultivating the land for the last 18/20 years and that defendant No.2 and 4 are brothers of defendant No.1. Defendant No.5 is Lambardar of the village and is RSA No. 1250 of 1986 2 influential person and all the defendants are very clever persons and have threatened to oust the plaintiff from the suit land by saying that they want to purchase it from the landlord Santu and the defendants have no right to oust the plaintiff forcibly from the suit land. Hence the suit was filed. The defendants filed the written statement taking the pleas that the entire suit land is in cultivating possession of defendant No. 1 to 4 and their brother Yag Dutt, i.e. half share of the suit land as vendees and the remaining half share as the prospective vendee, as per agreement of sale entered into between the vendor Jai Kishan son of Pohlu and the revenue records showing the entries in favour of the plaintiff and defendant No.1 as cultivating the suit land on payment of Rs.500/- per annum are totally wrong, against law and facts. Nahri girdawari entries are in favour of the defendants, which shows actual cultivating of the suit land. Patwari and Halqa Kanungo on the application of the defendants also visited the suit land on 2.11.1982 and 4.11.1982, who has reported in favour of the plaintiff. It is the defendants alongwith their brother Yag Dutt are in possession of the suit land and plaintiff has no right to the suit land in any capacity. Defendants have also taken certain preliminary objections. From the pleadings of the parties, following issues were framed:-

1. Whether plaintiff is in possession of the suit land? OPP.

2. Whether the plaintiff has not come with clean hands? If so its effect? OPD

3. Whether the suit is bad for non-joinder of necessary parties? OPD RSA No. 1250 of 1986 3

4. Whether the plaintiff has no cause of action to file the present suit? OPD

5. Relief. Plaintiff appeared himself as PW-1 and also examined PW-2 Ram Murti, PW-3 Gulab Singh, PW-4 Joginder Mohan and closed the evidence after tendering certain documents. In rebuttal defendant No.5 appeared as DW-1 and closed the evidence after tendering certain documents. After appreciating the same and hearing the learned counsel for the parties, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 31.1.1985. Feeling dissatisfied with the judgment dated 31.1.1985, the defendants preferred appeal before the First Appellate Court. The said appeal was partly allowed by learned Additional District Judge, Sirsa vide judgment and decree dated 22.2.1986 by modifying the judgment and decree dated 31.1.1985 passed by the trial Court restraining the defendants-appellants from interfering in the possession of the plaintiff-respondent over said 9 acres of land. Still Feeling dissatisfied with the judgments and decrees passed by both the Courts below, the defendants-appellants have preferred the present regular second appeal. Counsel for the appellants has submitted that following substantial questions of have arisen in the present appeal : - RSA No. 1250 of 1986 4

1. Whether relief of permanent injunction can be granted against the defendant in joint possession with the plaintiff?

2. Whether evidence adduced in variance with the pleadings can be taken into consideration?

3. Whether a finding recorded contrary to pleadings can be sustained?

4. Whether entries of Canal Girdawari are a more valuable piece of evidence as against the entries of Revenue Girdawari for determining the question of actual possession?

5. Whether a Revenue Officer continues to be competent to order correction of wrong entries of Girdawari even during pendency of the civil suit? I have heard learned counsel for the appellants and have gone through the records of the case. Learned counsel for the appellants has submitted that the suit of the plaintiff now respondent was not maintainable as he was not in possession of any portion of the suit property. The correction of wrong entry showing the plaintiff in possession has been ordered by Assistant Collector IInd Grade, vide order Ex.D-1 dated 12.8.1983. The learned trial Court below has discarded the said evidence on the ground that correction has been made during the pendency of the civil suit. Both the Courts below have not appreciated that the Revenue Officer only is competent to correct the khasra girdwari and civil Court cannot order the correction of khasra girdwari. To support this contention, learned counsel for the appellants has RSA No. 1250 of 1986 5 relied upon authority Shri Niranjan Singh and others vs. The Financial Commissioner, Punjab (Revenue) and others 1979 PLJ 352. It is contended that Nehir girdwaris Ex.D-6 to D-8 showing the possession of the plaintiff from Prabhu Dayal has been wrongly discarded. The presumption of truth is not attached to the revenue girdwari. Nahri girdwari is good piece of evidence of possession. The Nahri girdwari is more authenticated evidence of possession as the canal girdwari recovered water charges from the person actually cultivating in possession and girdwari has been entered in his name after spot inspection. It is case of the plaintiff that he was in joint possession of the land along with appellant No.1. However, even if this contention is accepted, the respondent was not entitled to a decree of permanent injunction. Injunction cannot be granted against a cosharer. It is further contended that relief cannot be granted beyond pleadings. The plaintiff claimed possession of 138 kanals 13 marlas but the the First Appellate Court has decreed the suit in respect of nine acres of land towards the north side. It is not the pleaded case of plaintiffs that he is in possession of nine acres of land towards south side and as such the decree could not be passed in respect of that land. The statement of PW-2 in this regard is an afterthought. Evidence against pleading cannot be allowed to be prevailed upon. In support of his contention, learned counsel for the appellants has relied upon authority Parveen Kumar and another vs. State of Haryana and another 1991 PLJ 95, Siddu Venkappa Devadiga vs. Smt. Rangu S.Devadiga and others AIR 1977 SC 890, Smt. RSA No. 1250 of 1986 6 Sowarno Devi vs. Tilak Ram etc. 1982 CLJ (C&Cr) 153 and ; Hazara Singh and another vs. The Punjab State and others 1969 PLR 534. Learned counsel for the respondent has supported the judgment of the First Appellate Court. In this case, the trial Court after appraisal of the evidence on the file reached to the conclusion that plaintiff is in possession of the whole of the suit land and consequently, decreed the suit. Vide, judgment dated

31.1.1985 passed by Shri G.S.Kotla, HCS, learned Sub Judge Ist Class, Sirsa. The defendants filed appeal against that judgment and decree dated

31.1.1985. The First Appellate Court partly accepted the appeal and partly decreed the suit of the plaintiff to the extent of nine acres of land towards north side and suit regarding remaining land was dismissed. Even if, a cosharer is in possession of whole of the suit property to the exclusion of other cosharer, he is entitled to decree of permanent injunction restraining him from taking possession by other cosharers except by way of due course of law i.e. partition of the land. The evidence led by the plaintiff is not in variance to the pleading as argued by counsel for the appellants. The First Appellate Court relying upon the testimony of PW-2 concluded that appellants are in possession of land towards north side. Both the courts below have appreciated the oral as well as documentary evidence on the file. The Nahri girdawari is not relevant for the determination of possession. Both the Courts below have rightly held that any correction in khasra girdwari during the pendency of appeal is irrelevant. The authorities in this regard have been cited by both the Courts below. In authority Niranjan Singh's case (supra), this Court has RSA No. 1250 of 1986 7 held that the power of correction of khasra girdwari exclusively lies with the Revenue Officer. However, in that ruling itself, it has been held that the civil court can interpret revenue entry either singly or in context to other relevant evidence brought on the record by the parties. It has been further laid down in that authority that the finding of Civil Court regarding status of the parties overriding the parties resulting in change of the entries in khasra girdwari. In authority Siddu Venkappa Devadiga's case (supra), Smt. Sowarno Devi's case (supra) it has been held that the Appellate Court cannot make out a new case for a party. In this case, the First Appellate Court has not made out a new case for the appellants rather has partly accepted the appeal qua ½ land and held the plaintiff in possession of remaining half share with nine acres of land towards north. The possession towards north has been based upon the evidence of PW-2 and that being a finding of fact cannot be interfered in the second appeal. The authority Parveen Kumar and another's.case (supra) is also not helpful to the appellants on the same ground. So, it cannot be said that khasra girdwaris have been wrongly ignored. There is nothing on the file to show that the The First Appellate Court has misinterpreted and misconstrued the evidence on the file. Authority Hazara Singh and another's case (supra) is not helpful to the case of appellants as in that case, it has been held that relief can only be given to a person who filed an appeal. In the present case, defendant/appellants have been granted relief by the First Appellate Court in respect of ½ share of the land relying upon testimony of PW-2. So, the RSA No. 1250 of 1986 8 question of law raised by the appellants stands answered in the light of observations made above. Consequently, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. August 03rd, 2010 ( K.C.PURI ) JUDGE