Smt. Kashmir Kaur & Ors. v. Joginder Singh & Anr.

Mr. Vipin Mahajan, Advocate for the respondents. Rakesh Kumar Garg, J. The appellants before this Court, who are LRs of defendant No.2, have filed this appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for permanent injunction restraining the defendants from interfering in the possession of the plaintiffs over the suit land illegally and without due course of law, was decreed. As per the averments made, the suit land was owned and possessed by the plaintiffs along with Darshan Singh, Avtar Singh, Kabal Singh, Surjit Singh brothers of Joginder Singh-plaintiff No.1 and the defendants had no right, title or interest in the suit land, who were threatening to dispossess the plaintiffs from the suit land by use of force. The defendants were requested many times to desist from their action but they refused to do so. Hence, the suit. Upon notice, the defendants appeared and filed written statement taking various preliminary objections. On merits, it was stated that the defendants were not bound by the entries in the revenue record RSA No.3085 of 2008 (O&M) 2 against the facts at the spot. According to them, the area originally belonged to Lehna Singh son of Gurdip Singh who sold the Khasra No.41R/2min North on 4.7.1961 in favour of Diwan Singh son of Kharak Singh and Sewa Singh son of Budha Singh to the extent of 5/6th share in equal shares and Jagjit Singh son of Ujjagar Singh to the extent of 1/6th share for a sum of Rs.99/- measuring 1 kanal 18 marlas. Makhan Singh also sold the land measuring 1 kanal 6 marlas to Jagjit Singh son of Ujjagar Singh on 4.7.1961 for Rs.75/- and mutation No.41 of the sold property by Lehna Singh was sanctioned in 1996 wherein vendor's name was wrongly mentioned as Makhan Singh. In fact a mutation of sale by Lehna Singh was to be sanctioned in favour of the defendants and Jagjit Singh and due to wrong sanctioning of the mutation, the estate of Lehna Singh was inherited in favour of Bahadur Singh who was real brother of Lehna Singh. As Lehna Singh died issueless without wife on 6.2.1962, mutation No.1159 was sanctioned in his favour by Patwari. The plaintiff could not be able to be reflected in the revenue record correctly. Permanent settlement of village was under progress and there were minor changes due to the settlement of village that is Makhan Singh on the north side whereas Lehna Singh on south side. Jagjit Singh sold 1 kanal to Gurbax Singh son of Budha Singh by stating the boundary as plot out of the purchased area from Makhan Singh on 19.5.1972, for a sum of Rs.4,000/- but the vendees were in possession on the spot of the sold area as in their sale deeds and the possession of the vendees is clearly reflected in the site plan attached with the plaint prepared on the spot showing the possession of the defendants as vendees and the plaintiffs were taking illegal benefit of the aforesaid wrong entries. The defendants were having all the rights of ownership and possession. Remaining allegations were denied and dismissal of the suit was prayed. RSA No.3085 of 2008 (O&M) 3 On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiffs are in possession of suit land and are entitled to injunction prayed for? OPP

2. Whether the suit is bad for non joinder of necessary parties? OPD

3. Whether the suit is not maintainable in present form? OPD

4. Relief.” Vide judgment and decree dated 23.1.1999, the trial Court held that the plaintiffs were owners in possession of the suit land and the defendants had no right to interfere in their possession illegally and without due course of law. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal before the Lower Appellate Court which was dismissed vide impugned judgment and decree dated

25.4.2008. Still not satisfied, the appellants have filed the instant appeal submitting that the Courts below have failed to consider the material evidence on record i.e. field book (Ex.D8) which was prepared during the settlement in the village in which old and new khasra numbers are clearly available which supports the contention of the appellants and because of the non consideration of the evidence on record, findings of the Courts below are wholly illegal and are liable to be set aside. It is the further case of the appellants that the Courts below have failed to consider the sale deed dated 4.7.1961 (Ex.D3) on the basis of which the suit property was purchased by the appellants along with others from Lehna Singh. On the RSA No.3085 of 2008 (O&M) 4 basis of the aforesaid argument, learned counsel for the appellants has submitted that the non-consideration of important piece of evidence having direct bearing on the disputed issue consideration of which would have changed the decision, amounts to a substantial question of law to maintain the second appeal. In support of his argument, learned counsel for the appellants has placed reliance upon a judgment of this Court reported as Darshan Singh Sahota v. State of Punjab and others 2002(2) RCR (Civil) 546. On the basis of aforesaid arguments, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the findings of the ld. Courts below without considering the field book i.e. Ex.D8 in which against the old khasra number, the present khasra number is given, are legally sustainable? (ii) Whether in the presence of the sale deed i.e. Ex.D3 and the field book i.e Ex.D8, the ld. Courts below can legally hold that the plaintiff-respondents are owners in possession? (iii) Whether the judgments which are based on non- reading and mis-reading of the pleadings as also the evidence, can be legally sustainable? (iv) Whether the illegal entries in the revenue record stand rebutted with the proving of sale deed, Ex.D3 and further with the field book, Ex.D8? (v) Whether the impugned judgments and decrees, the findings of which are based on inferences which could never be drawn form the documents and also on RSA No.3085 of 2008 (O&M) 5 surmises and conjectures, can be legally sustained? I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. There is no dispute with the aforesaid proposition of law as canvassed by the learned counsel for the appellants to the effect that non- consideration of important piece of evidence having direct bearing on the disputed issue consideration of which would have changed the decision, amounts to a substantial question of law. However, the aforesaid proposition of law as canvassed by the learned counsel for the appellants does not arise in the present appeal. In their pleadings, the appellants have not pleaded the relevant facts based on the document Ex.D8. According to the learned counsel for the appellants, Ex.D8 is a copy of the field book in which the old and new khasra numbers of the suit property have been given and this document establishes the link between the old and new khasra numbers of the suit property. Not only this, the origin of the aforesaid document is in Urdu. Though as submitted, Punjabi translation of the aforesaid document is available on the record, however, learned counsel for the appellants has not referred to any document showing that the translation of the aforesaid document was certified to be correct by a person, having knowledge of Urdu, nor the aforesaid Punjabi translation of the aforesaid document has been notarized. Thus, there is no evidence to suggest that the aforesaid Punjabi translation of document Ex.D8 has been proved in accordance with law as provided under the High Court Rules and Orders. It is also relevant to mention that the sale deed Ex.D-3 was not relied upon by the Courts below on the ground that description of the suit property does not tally with the description as given in the aforesaid documents. Learned counsel could not raise any argument on this finding. RSA No.3085 of 2008 (O&M) 6 In this view of the matter, the contents of the aforesaid document Ex.D8 cannot be said to be proved. Simply because the document has been exhibited, it cannot be stated that the same stood proved ipso facto, as it is well settled that exhibition of document will not dispense with the mode of proof and document Ex.D-3 was not related to suit property and was rightly discarded. Thus, for the aforesaid reasons, I find no merit in this appeal. No substantial question of law arises. Dismissed. July 14, 2010 (RAKESH KUMAR GARG) JUDGE