Kulwinder Singh v. Rajesh Kumar & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL Present: Ms. Sharmila Sharma, Advocate for the appellant. **** L. N. Mittal, J. (Oral) CM No.14405-C of 2010 Allowed as prayed for. Main Case Plaintiff-Kulwinder Singh, who was successful in the trial court but has been unsuccessful in the lower appellate court, has filed the instant second appeal. The plaintiff-appellant alleged that he is in exclusive possession of suit land measuring 32 Kanals 14 Marlas being co-sharer in joint land described in the plaint. The defendants who are also co-sharers in the joint land wanted to dispossess the plaintiff from the suit land forcibly and illegally without partition. Accordingly, the plaintiff sought permanent injunction restraining the defendants from doing so. Defendants alleged that they have purchased land vide four sale deeds dated 24.11.2004 and are co-sharers in the joint land. Defendants are in possession of the suit land. Plaintiff is co-sharer in the joint land, but is not in exclusive possession of the suit land. No partition has taken place. REGULAR SECOND APPEAL No. 4833 of 2010 (O&M) -2- Various other pleas were also raised. Learned Civil Judge (Junior Division), Karnal vide judgment and decree dated 30.03.2010 decreed the plaintiff's suit. However, first appeal preferred by the defendants has been allowed by the learned District Judge, Karnal vide judgment and decree dated 13.11.2010 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In this case, it is undisputed that both parties are co-sharers in the joint land mentioned in the plaint. However, out of the said joint land, the plaintiff claimed his exclusive possession on specific 32 Kanals 14 Marlas suit land. Learned counsel for the appellant contended that Khasra Girdawaris Exhibits P-3 and P-4 for 2005-2006 and for 2008-09 depicted exclusive possession of the plaintiff-appellant over the suit land and therefore he is proved to be in exclusive possession of the suit land and the said Girdawaris have not been challenged by the defendants. It was accordingly contended that defendants even as co-sharers cannot interefere in exclusive possession of the plaintiff-co-sharer over the suit land without getting the joint land partitioned. The aforesaid contention cannot be accepted. Plaintiff-appellant is not proved to be in exclusive possession of the suit land. Copy of jamabandi Exhibit P-1 for 2000-01 and copy of Jamabandi Exhibit P-2 for 2005-06 depict that all the co-sharers are in joint possession of the joint land including the suit land. Entries in Jamabandi carry presumption of REGULAR SECOND APPEAL No. 4833 of 2010 (O&M) -3- correctness. Khasra Girdawari entries cannot prevail over entries in Jamabandis. Moreover, there is no basis for change of Khasra Girdawari in 2005-06 when prior to it, continuously the suit land and other joint land was recorded to be in joint possession of the co-sharers. There is no basis for recording the plaintiff to be in exclusive possession over the suit land in Khasra Girdawari for 2005-06. The said change in favour of the plaintiff was made in violation of relevant instructions and rules and without issuing notice to the other co-sharers who are adversely affected by the said change. Moreover, the suit was filed on 19.12.2005. It thus depicts that the plaintiff in collusion with revenue authorities got the Khasra Girdawari entry changed in 2005-06 and immediately filed the instant suit on the basis thereof. There was no occasion for the defendants to challenge the said Khasra Girdawari. Subsequent Khasra Girdawari for 2008-09 Exhibit P-4 was entered during pendency of the suit. The said entry carries no weight. Moreover, at the risk of repetition, it may be highlighted that earlier entries depicted joint possession of the co-sharers on the joint land including suit land and it is not explained as how suddenly the plaintiff came in exclusive possession over the suit land as depicted in Khasra Girdawari for 2005-06. Learned counsel for the appellant contended that plaintiff's vendors gave exclusive possession of the suit land to the appellant-plaintiff. The contention is devoid of substance because plaintiff's vendors themselves were also not in exclusive possession of the suit land and, therefore, they could not deliver its exclusive possession to the plaintiff. There is no document on record to depict that plaintiff's vendors were ever in exclusive possession of the suit land. On the other hand, Jamabandis for 2000-01 and 2005-06 clearly depict that all the co-sharers were in joint REGULAR SECOND APPEAL No. 4833 of 2010 (O&M) -4- possession of the suit land. It may be added that the plaintiff has not even produced his sale deed in evidence to depict that exclusive possession of the suit land was delivered to him by his vendors. On the contrary, the plaintiff himself admitted that he had purchased only share in the suit land. Consequently the plaintiff never came in exclusive possession of the suit land. From the aforesaid discussion, it becomes manifest that plaintiff is not proved to be in exclusive possession of the suit land. Therefore, he is not entitled to injunction prayed for and he has been rightly non-suited by the lower appellate court. Finding of the lower appellate court in this regard does not suffer from any infirmity, much less illegality or perversity so as to warrant interference in second appeal. Finding of the lower appellate court is well reasoned and based on proper appreciation of evidence. No other reasonable view of the evidence on record could be taken. The trial court misread entries in Jamabandi to hold the plaintiff to be in exclusive possession of the suit land, although entries in Jamabandies depicted all the co-sharers to be in joint possession of the suit land and did not depict the plaintiff to be in exclusive possession thereof. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is devoid of merit and is accordingly dismissed in limine. December 17, 2010 'raj' (L. N. MITTAL) JUDGE