Sulakhan Singh v. Jaswinderpal Singh & Anr.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vipin Mahajan, Advocate for the appellant. None for the respondents. L. N. MITTAL, J (ORAL) This is second appeal by plaintiff-Sulakhan Singh, who has been successful only partly in the Courts below. Appellant-Sulakhan Singh filed suit against respondents- Jaswinderpal Singh and his mother Surjit Kaur alleging that the plaintiff is in possession of the suit land as tenant. The suit land comprises of killa Nos.21/1 (1-16), 20(8-0) and 22/2 (4-7) of Rectangle No.33. Entries in khasra girdwari relating to killa No.22/2 are in favour of plaintiff's father Bawa Singh and uncle Mahain Singh. Both of them have since died and after their death, plaintiff is in possession of the said land also. The defendants threatened to dispossess the plaintiff from the suit land. Accordingly, plaintiff sought permanent injunction restraining the defendants from interfering in physical cultivating possession of the plaintiff over the suit land in any manner. The defendants were proceeded ex parte in the trial Court RSA No.3366 of 2009 -2- as they did not appear in spite of service. Learned Additional Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 27.09.2005 decreed the suit partly regarding land of killa No.21/1 (1-16) only out of the suit land restraining the defendants from interfering in plaintiff's possession thereon except in due course of law whereas the suit regarding land of killa No.22/2 (4-7) was dismissed. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 29.04.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant whereas none has appeared for defendants/respondents in spite of service. They were also ex parte in the trial Court as well as in the lower appellate Court. I have also perused the case file. Following substantial question of law arises for determination in the instant second appeal:- “Whether finding of the Courts below that plaintiff has proved his possession over land of Killa No.33/21/1 only out of the suit land is perverse and illegal and, therefore, not sustainable?” Both the Courts below have held the plaintiff to be in possession of land of Killa No.21/1 and have also held that he is not in possession of land of Killa No.22/2. However, both the Courts below have failed to record any finding regarding possession of plaintiff over land of Killa No.20 (8-0). The plaintiff raised this point in first appeal and it was also noticed by the lower appellate Court in paragraph 9 of the judgment, but in spite thereof, even the lower RSA No.3366 of 2009 -3- appellate Court failed to record any finding regarding land of killa No.20. Presiding Officers of trial Court and lower appellate Court, who decided the suit and the first appeal, are advised to be careful in future. This order be conveyed to both of them. Perusal of trial Court file reveals that the plaintiff is recorded to be in possession of land of killa No.20 also in revenue record i.e jamabandis for the years 1981-82 Ex.P-1, 1986-87 Ex.P-2, 1991-92 Ex.P-3, 1996-97 Ex.P-4 and 2001-02 Ex.P-5 and khasra girdwari Ex.P-6 since kharif 2002 till kharif 2004. Thus the entire revenue record since 1981-82 till 2004 (filing of the suit) for more than two decades consistently recorded the possession of the plaintiff over land of killa No.20 (8-0). Presumption of correctness is attached to entries in jamabandis. The said presumption gets strengthened if the same entries continue for a long period as in the instant case. Presumption attaching to jamabandis Ex.P-1 to P-5 has not been rebutted in any manner. There is also oral evidence of the plaintiff in support of his case which also stands unrebutted. Infact, the defendants have not contested the suit or the first appeal or even the instant second appeal. The plaintiff's aforesaid evidence is very cogent and reliable and proves that he is in possession of land of killa No.20 as well. Now the dispute remains regarding land of Killa No.22/2. The said land is recorded to be in possession of Mahain Singh and Bawa Singh in the above mentioned revenue record. It is the case of the plaintiff that Mahain Singh and Bawa Singh were uncle and father respectively of the plaintiff and both of them have since died and since after their death, plaintiff is in possession of land of Killa RSA No.3366 of 2009 -4- No.22/2 also. Plaintiff's evidence in this regard stands unrebutted. Plaintiff himself appeared as PW-3 and also examined Pritam Singh PW-1 and Prem Singh PW-2. All of them have stated that Mahain Singh and Bawa Singh were uncle and father respectively of the plaintiff and both of them have since died and land of killa No.22/2 is also in possession of plaintiff since after their death. The aforesaid evidence is also cogent and reliable and there is nothing on record to doubt the same. Courts below have committed illegality by holding that plaintiff is not in possession of killa No.22/2. The said finding is based on misappreciation of evidence and has to be interfered with in second appeal and it raises substantial question of law. For the reasons aforesaid, I find that the plaintiff is proved to be in possession of the entire suit land and, therefore, the suit deserves to be decreed in toto. Substantial question of law framed hereinabove is answered accordingly in favour of the appellant. As a necessary upshot of the aforesaid discussion, the instant second appeal is allowed and judgments and decrees of both the Courts below are modified and suit filed by plaintiff-appellant is decreeed restraining the defendants from interfering in possesssion of the plaintiff over the suit land except in due course of law.

04.08.2010. A. Kaundal ( L. N. MITTAL ) JUDGE