Darshan Singh and Others vs Angrez Kaur and Others

Rakesh Kumar Garg, J.—The plaintiffs'' suit for issuance of or injunction restraining the defendants from interfering and taking forcibly possession of the suit land bearing khasra number 118//21-22-23-24, 119/24/2-25 as fully detailed in the head note of the plaint was decreed with costs except in due course of law and appeal filed by the defendants against the aforesaid judgment and decree of the trial Court was dismissed. The defendants have filed the instant second appeal challenging the judgments and decrees of the Courts below.

Counsel for the appellants has vehemently argued before this Court that the plaintiff-respondents were not in physical possession of the suit land on the date of filing of the suit and thus, the suit for permanent injunction without seeking relief of possession of the suit property was not maintainable and therefore, the judgment of the Lower Appellate Court whereby injunction has been granted in favour of the plaintiff-respondents is erroneous and the findings are liable to be set aside and thus, a following substantial question of law arises in this appeal:

Whether the plaintiffs without being in possession can seek permanent injunction against the defendants?

However, learned counsel for the plaintiff-respondents has referred to para 10 of the judgment of the Lower Appellate Court reads thus:

I have considered the arguments advanced before me and I have also gone through the evidence and the documents on record produced on file before the lower court; by both the parties. The property in dispute bears khasra numbers and the revenue record is also placed on file to establish the ownership as well as possession over the property in dispute. The plaintiffs have claimed themselves to be the owners in possession of this property and they have filed this suit for permanent injunction restraining the defendants from interfering in their peaceful possession or dispossessing them illegally and forcibly. Angrej Kaur (PW1) has stepped into the witness box to establish her claim. She has placed on record copy of jamabandi for the year 1994-95 Ex. P2 in which Nihal Kaur has been shown co owner to the extent of 7/15 share, Ragbir Singh 2/15 share, Ram Singh and Balbir Singh in equal share 6/15 share. In the column of cultivation, there is entry of self cultivation. In the remarks column there is entry of mutation No. 1270 regarding sale by Nihal Kaur regarding her share in favour of Angrej Kaur who is plaintiff in this case. Copies of khasra girdawari Ex. P3 and Ex. P4 are also placed on record in which there is entry for self cultivation in favour of the plaintiffs-respondents. In the revenue record mentioned above, the name of appellants-defendants do not figure any where. Even in the written statement, the appellants have failed to take a specific plea as to in what capacity they are in possession of property in dispute. The appellants have relied upon the order dated 18.8.2004 passed by A.C. 2nd Grade regarding correction of khasra girdawari Ex. D3. This order has been passed during the pendency of suit filed by the plaintiffs seeking the relief of permanent injunction. Therefore, the appellants-defendants cannot drive any benefit from the order Ex. D3 passed by A.C. 2nd Grade. The appellants have tried to establish their possession over the property in dispute on the basis of oral statement of Jagjit Singh (DW1) and Mohinder Singh (DW2). The defendants have also stepped into the witness box to establish their case. Apart from this oral testimony of witnesses, there is no convincing evidence on record to establish their genuine claim over the property in dispute. The respondents-plaintiffs have also placed on record certified copy of judgment Ex. DX/1 titled Darshan Singh etc., Vs. Balbir Singh in a suit for joint possession in which the appellants claimed their title over the property in dispute. As per the certified copy of judgment dated 11.1.2007 the suit filed by the appellants for joint possession was dismissed. Even otherwise the nature of this suit for joint possession clearly indicates that the appellants/defendants were not in exclusive possession over the property in dispute. Therefore, there is no sufficient evidence on record to rebut the presumption attached with the copy of jamabandi Ex. P2 relied upon by the plaintiffs which shows the ownership and possession of the plaintiffs-respondents over the property in dispute.

The counsel for the appellants/defendants have also raised the point that the plaintiffs have concealed earlier litigation. Therefore, they are not entitled to the relief of permanent injunction. In this regard, the counsel for the appellants has referred to the certified copy of judgment Ex. D1 and decree sheet Ex. D2 in a suit for permanent injunction titled Nihar Kaur vs. Darshan Singh where it was held that Nihar Kaur had failed to establish her exclusive possession over the property in dispute. Firstly, this suit was filed by Nihal Kaur alone against appellants-defendants. Angrej Kaur or the other plaintiffs were not party to the said suit. Therefore, the findings of that court cannot be held to be binding on the plaintiffs, who have filed this suit for permanent injunction. The appellants have laid much emphasis on the cross examination of Angrej Kaur (PW1) where she admitted that Raghbir Singh and Ram Singh are settled in England for the last about forty years and her husband Balbir Singh is in jail in a murder case for the last about seven years. Therefore, the respondents-plaintiffs are not in possession of this property. It has come on record that Angrej Kaur is the wife of Balbir Singh and she has purchased the share of her mother-in-law Nihal Kaur. She has also become co-owner in the property in dispute. The possession of one co sharer is deemed to be the possession of other co-sharer also. It is not necessary that all the co-sharers should be physically present to establish their possession over the property in dispute. Therefore, this point raised by the learned counsel for the appellants-defendants does not help their case in any manner. The appellants-defendants have miserably failed to explain their own possession over the property in dispute nor they could explain in what capacity they came into possession of this property. There is no revenue record on the file to establish their possession over the land in dispute. Keeping in view these facts, the judgment and decree passed by the lower court do not require any interference and the same is upheld. The appeal preferred by the appellants/defendant is dismissed with costs.

A perusal of the aforesaid paragraph would show that in the revenue record, the plaintiff-respondents have been shown in possession on the date of filing of the suit. A presumption of truth is attached to the jamabandies produced on record by the plaintiff-respondents. The appellants have failed to controvert the aforesaid presumption in favour of the plaintiff-respondents by placing on record any revenue record except khasra girdawaris for the year 2004 (Ex. D3). However, the same cannot be taken into consideration as it was got corrected from the Revenue Authorities during the pendency of the suit.

At this stage, it may further be noticed that the factum of possession is a question of fact. The Lower Appellate Court on appreciation of evidence has recorded the findings in favour of the plaintiff-respondents. There is no material before me on the basis of which the aforesaid findings could be controverted.

No other argument is raised.

In view thereof, the substantial question of law, as raised, does not arise in this appeal. Dismissed.