Karnail Singh & Ors. v. Joginder Singh

This is an appeal directed by defendant-appellants against the judgment dated 19.3.2010 passed by Smt. Neelam Arora, Additional District Judge, Amritsar, vide which the appeal preferred by the defendant-appellants against the judgment dated 1.6.2009 passed by Ms. Sonia Kinra, PCS, Civil Judge (Junior Division), Ajnala, was dismissed. Joginder Singh - plaintiff filed a suit for permanent injunction restraining the defendants from interfering in the suit property by methods other than due process of law. Briefly stated, the facts of the case of the plaintiff are that Parmatma Singh, father of the plaintiff had been in continuous, R.S.A. No. 2291 of 2010 -2- uninterrupted possession over the suit land as Gair Marusi from 1974 to 1990. Parmatma Singh died and thereafter plaintiff entered into possession over the suit property. The plaintiff has constructed a room and installed a fodder toka and hand pump in the land. The defendants have no right in the suit property. Hence, suit for injunction was filed. On put to notice, defendants filed joint written statement taking preliminary objections that suit of the plaintiff is not legally maintainable, that plaintiff has no locus standi and cause of action, that plaintiff has not come to the Court with clean hands, were taken. On merits, it is pleaded that defendants have purchased the suit property vide sale deed dated 29.12.2000 and are in actual, physical and cultivating possession of the land. The other averments made in the plaint were denied and it was denied that plaintiff has installed a fodder toka and hand pump machine etc. Plaintiff filed the replication. From the pleadings of the parties, following issues were framed:-

1. Whether the plaintiff is in possession of the suit property as alleged? OPP.

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

3. Whether the plaintiff has got no locus standi and cause of action to file the present suit? OPD

4. Whether the defendants are owners in possession of the suit property as alleged? OPD R.S.A. No. 2291 of 2010 -3-

5. Whether the plaintiff is entitled to injunction as prayed for? OPD.

6. Relief. Earlier the suit of the plaintiff was dismissed vide judgment dated 15.9.2008. aggrieved against the aforesaid judgment, plaintiff went in appeal. The said appeal was accepted by District Judge, Amritsar and the case was remanded back by allowing the application under Order 41 Rule 27 CPC. Thereafter, the suit was decided by the trial Court. Learned trial Court has taken up issues No. 1, 4 and 5 together and after appraisal of the evidence, reached to the conclusion that the plaintiff is in possession of the suit property. Issues No. 1, 4 and 5 are decided accordingly. Issues No. 2 and 3 were not pressed before the trial Court. In view of the finding on issues No. 1, 4 and 5, suit of the plaintiff was decreed and defendants were restrained from taking possession of the suit property, except in due process of law. Feeling dissatisfied with the said judgment dated 1.6.2009, passed by Ms. Sonia Kinra, Civil Judge (Junior Division), Ajnala, the defendant-appellants preferred the Ist appeal. That appeal was dismissed vide judgment dated 19.3.2010, passed by Smt. Neelam Arora, Additional District Judge, Amritsar. Feeling dissatisfied with the abovesaid judgments dated

19.3.2010 and 1.6.2009, referred to above, the present regular second appeal has been preferred by the defendant-appellants. The appellants in paragraph No. 3 of the grounds of appeal have mentioned that following substantial questions of law have R.S.A. No. 2291 of 2010 -4- arisen in the present appeal:- i) Whether the judgments and decrees, passed by the learned Courts below are illegal, erroneous, perverse and are unsustainable in the eye of law? ii) Whether the wrong-doer can claim the discretionary relief against the true owner? iii)Whether the incorrect revenue record can be relied upon and made the basis for decreeing the suit? Learned counsel for the appellants has submitted that the findings of both the Courts below are based upon the revenue record. In the revenue record, the plaintiff has not been recorded in possession of the suit property. Parmatma Singh, father of the plaintiff died in the year 1990. The later entry showing Parmatma Singh in possession is wrong on the face of it. The defendant- appellants have purchased the suit property and as such they are true owners. The revenue record has been corrected in favour of the defendant-appellants, but the same has been ignored on the ground that correction has been made during the pendency of the suit and as such the same cannot be taken into consideration. So, it is submitted that after answering the above said substantial questions of law in favour of the appellants, the appeal is liable to be accepted. I have carefully considered the submissions made by counsel for the appellants. The dispute in the present case is regarding the possession of the suit property. Both the Courts below after appraisal of the evidence on the file, reached to the conclusion that plaintiff is in R.S.A. No. 2291 of 2010 -5- possession of the suit property. Long established possession of the plaintiff has been held to be proved. No doubt the entries after the death of Parmatma Singh also show the possession of Parmatma Singh. The law is in favour of continuing possession. It is not the case of the defendant-appellants that vendor of defendants has been recorded in the possession of the suit property. Defendant-appellants alleged to become owners by virtue of sale deed of the year 2000. The vendor of the defendant-appellants could deliver the possession only if he would have been in possession. Dalbir Singh - admittedly, has not been recorded in possession of the suit land. There is long established possession of Parmatma Singh, father of the plaintiff and after his death there is presumption that plaintiff shall be in possession of the suit property, unless there is any eviction order or plaintiff surrenders the possession voluntarily. The decree of permanent injunction has been passed restraining the defendants from taking possession forcibly and methods other than due process of law. The concurrent finding of fact recorded by both the Courts below that plaintiff is in possession of the suit property cannot be interfered in the second appeal. The case of the plaintiff is that Parmatma Singh was in possession of the suit property as tenant and thereafter he came into possession of the suit property as tenant. So, a tenant is entitled to injunction against the true owner, from his forcible dispossession. There is nothing on the file that judgments of both the Courts below are the result of misreading or misinterpretation of the evidence on the file. So, it cannot be said that the judgments of both the Courts below are illegal, erroneous, perverse and unsustainable in R.S.A. No. 2291 of 2010 -6- the eyes of law. In view of the above discussion, all the substantial questions of law raised by the appellants stand answered against the appellants. Consequently, the appeal is without any merit and the same stands dismissed.

28.7.2010 ( K.C. Puri ) Judge