& RSA No. 1861 of 2010 (O&M) Date of decision: December 1 & Ors. v. Mool Chand & Ors.

respondents/defendants from interfering in the suit land measuring 6 kanals 13 marlas, bearing killa No. 86/16, khewat No. 500 khatoni No. 627, as per jamabandi for the year 1989-1990, on the ground that they are in cultivating possession thereof and the defendants want to take forcible possession. Now they want to amend their plaint so as to mention the khatoni and khewat numbers, as detailed in the application. It is their own case, as set up in para 3 of the application, that the mortgage deed dated 25.11.1989 was executed RSA No. 1861 of 2010 2 in respect of 3 kanals and 16 marals of land out of 6 kanals and 13 marlas, bearing said killa, khewat and khatoni number and that they got the same redeemed. If that is their case, then how they can be permitted to add new khewat and khatoni numbers by way of amendment. It cannot be said that the amendment sought by the them is necessary for deciding the real controversy between the parties. The application is dismissed accordingly. Therefore, the applicants cannot be allowed to place on record the amended plaint. RSA No. 1861 of 2010 (O&M) This second appeal has been preferred by the appellants/plaintiffs against the judgment and decree dated 12.9.2009 passed by the Additional District Judge, Bhiwani, vide which he dismissed the first appeal preferred by the plaintiffs against the judgment and decree dated 26.4.2005 passed by the Additional Civil Judge (Senior Division), Charkhi Dadri, dismissing their suit for mandatory and prohibitory injunction, restraining the respondents/defendants from interfering in their cultivating possession over the land in dispute measuring 6 kanals 13 marlas, bearing killa No. 86/16, khewat No. 500 khatoni No. 627, as per jamabandi for the year 1989-1990, and from taking forcible possession thereof. The plaintiffs averred, in their plaint, that they mortgaged 3 kanals 16 marlas of land, out of 6 kanals 13 marals, with defendant No.1, vide mortgage deed dated 25.11.1989 for ` 5,000/-and possession was delivered to him. The mortgage was redeemed vide order dated 30.8.1994 and warrants of possession were issued by the Collector. However, RSA No. 1861 of 2010 3 defendant No.1, in collusion with defendant No.2, got revenue entry changed in favour of defendant No.2 as a tenant. They were able to obtain ad-interim injunction against them but that order was vacated on 13.3.1996. Thereafter, in execution of the warrants of possession, possession of this land was delivered to them, vide rapat No. 242 dated 19.6.1996. The defendants have no connection with this land but they want to take forcible possession thereof. The suit was contested by the defendants. In their written statement, they admitted the factum of mortgage and redemption thereof. However, they denied the other contentions made in the plaint and pleaded that the possession of the land was never delivered to defendant No.1 and the same had already been delivered to the tenant. It is defendant No.2, who is coming in possession of the land as a tenant. On the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether the plaintiffs are owners in possession of the suit land as alleged ? OPP

2. If issue No.1 is proved, whether the plaintiffs are entitled to the relief of injunction as prayed for ? OPP

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

4. Whether the Civil Court has got no jurisdiction to try and entertain the present suit ? OPD

5. Whether the plaintiffs have no cause of action to file the present suit ? OPD

6. Whether the plaintiffs have got no locus-standi to file the RSA No. 1861 of 2010 4 present suit ? OPD

7. Whether the defendants are entitled to claim special costs under Section 35-A CPC ? OPD 7A. Whether the plaintiffs have not come to the Court with clean hands and are not entitled for the relief of injunction ? OPD

8. Relief.” To succeed in the suit, the plaintiffs examined Jagdish Rai AVRK (PW-1), Umed Singh (PW-2), Baljeet Singh (PW-3), Vinod Kumar (PW-4), Ram Deen (DW-5) Krishan Kumar (PW-6), Balwan Singh (PW-7). Suraj Bhan-plaintiff himself entered the witness box as PW-8. On the other hand, defendants examined Hawa Singh (DW-1), Dharam Singh (DW-2), Shugan Chand (DW-3), Krishan Kumar (DW-4), Attar Singh (DW-5), Surender Singh (DW-6). Zile Singh-defendant himself entered the witness box as DW-7. After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided all the issues, except issues No. 3 and 4, against the plaintiffs and resultantly, dismissed their suit. I have heard learned counsel for the plaintiffs. It has been submitted by the learned counsel for the plaintiffs that the findings of the lowers courts are based on mis-reading of evidence. In the mortgage deed executed by the plaintiffs, which has been admitted by the defendants, there is a recital that possession of the land measuring 3 kanals 16 marlas so mortgaged was delivered to defendant No.1. It was also admitted by the defendants that the land was got redeemed. The RSA No. 1861 of 2010 5 evidence was produced by the plaintiffs that in pursuance of the warrants of possession issued by the Collector, possession of that land was delivered to the plaintiffs and that they are coming in possession thereof. In view of that evidence, the findings recorded by the lowers court to the contrary cannot be sustained. Substantial questions of law arise in the present appeal. A perusal of the judgments of the lower courts makes it clear that on the basis of the trustworthy evidence produced by the defendants, findings were recorded that the plaintiffs were not in exclusive possession of the land so mortgaged and they were not in a position to deliver the possession to defendant No.1 and the possession was never delivered to that defendant as recited in the mortgage deed. Even in the jamabandi the plaintiffs were not recorded to be in exclusive possession at the time the land is said to have been mortgaged. When they themselves were not in exclusive possession, then they could not have delivered the possession thereof to defendant No.1. It cannot be said that the findings recorded by the lower courts are the result of misreading of evidence or are perverse. Concurrent finding of facts were recorded by the lowers courts. No substantial question of law arises in the present appeal. The same is hereby dismissed. December 1, 2010 (GURDEV SINGH ) JUDGE