Gurcharan Singh vs Kehar Singh (deceased) Rep. by L.Rs.

N.K. Kapoor, J.—Plaintiff and Defendant are real brothers, Plaintiff filed a suit for permanent injunction restraining the Defendant from interfering in his possession over the land described in the head-note of the plaint. According to the Plaintiff, he is owner to the extent of 1/4th share in the joint holding and in possession of the whole of the suit land i.e. remaining 3/4th on Chakota of Rs. 800/- on annual basis, since the Defendant now intended to interfere in his peaceful possession, hence the present suit.

Defendant put in appearance and filed written statement. The Defendant while admitting the ownership of the Plaintiff to the extent of 1/4th share in the joint fielding specifically dented his status as tenant at will on the basis of payment of Chakota amount in respect of the 3/4th share in the joint holding. According to the Defendant, in fact, he never parted with possession of any part of the suit. The Defendant further stated that some wrong entries made in the Khasra girdawari at the back of the Defendant do not adversely affect his valuable right in any manner.

On the pleadings of the parties, following issues were framed:

Whether the Plaintiff is in possession of the land in dispute as alleged? OPP.

Whether the Plaintiff is entitled to the injunction as prayed for ? OPP.

Whether the suit is not maintainable as against the Defendant, he being co-owner ? OPD.

Relief.

The trial Court took up issues No. 1 and 2 together and after considering the oral as the well as documentary evidence adduced by the parties decided these issues in favour of the Plaintiff. No evidence was led by the Defendant in respect of issue No. 3 and so this issue was decided against the Defendant. Resultantly, the suit of the Plaintiff was decreed.

Defendant filed appeal against the judgment and decree of the trial Court challenging its legality as well as propriety. The lower appellate Court no reconsideration the evidence finally came to the conclusion that there is no proof on record that the Defendant had inducted the Plaintiff as tenant at will on payment of Chakota amount of Rs. 800/- annually as alleged by the Plaintiff. Similarly, the lower appellate Court found no valid justification for the trial Court to refer the matter to a Local Commissioner to ascertain as to who was in actual cultivating possession at the spot. According to the lower appellate Court, since the matter of possession was to be determined by the Court, the same could not be entrusted to a Local Commissioner and any such finding by the Local Commissioner cannot bind a Court. At best, it can be treated as a piece of evidence and no more. The lower appellate Court further came to the conclusion that since both the parties are co-sharers, no injunction can be claimed against the other thus jeopardising his valuable right for all times. Resultantly, the appeal was accepted, thus dismissing the suit filed by the Plaintiff.

Challenging the judgment and decree of the lower appellate Court terming it to be wholly illegal and otherwise unwarranted as per facts proved on record, counsel for the Appellant once again referred to the pleadings of the parties, documentary evidence adduced to prove the contention raised as well as the oral deposition of the witnesses supporting the documentary evidence. According to the learned Counsel for the Appellant, Defendant, Chakota amount. The precise basis on which this in fact, had been serving in the Army and in his absence whole of the land was being cultivated by the Plaintiff. It is only a few years back that it was agreed between the parties that henceforth the Plaintiff would pay a sum of Rs. 800/- annually as Chakota in respect of the share of the Defendant and ever since then the land in dispute has remained in cultivating possession of the Plaintiff to the exclusion of the Defendant. The entries in the revenue record duly support the case of the Plaintiff. This way the Court below has gravely erred in law in not properly Construing the entries in the register of Khasra girdawari as well as jamabandi for the relevant year. Otherwise too, as per evidence, it has been proved that the Defendant did not possess any implement of ploughing the field. In fact, the Defendant has been an absentee landlord. This precise point has been sidetracked and not given due weight by the lower appellate Court which resulted in failure of justice. Thus, as possession of the Plaintiff has been proved as per entries in the revenue record duly supported by the report of the Local Commissioner, the conclusion arrived at by the lower appellate Court is unsustainable.

Learned Counsel for the Respondents, on the other hand, argued that the findings recorded by the lower Appellate Court are perfectly just and legal and hence do not call for any interference. In fact, no question of law arise as per facts of the present case and hence the regular second appeal deserves to be dismissed on his ground alone. Even on merit, it has come on record that except for one entry and that too in one particulars khasra No. out of the whole suit land where the Plaintiff has been to be recorded in possession on payment of Chakota, the other entries do not record him to be as tenant at will and, in fact, the area is shown to be in the self-cultivating possession i.e. of co-sharer. Similarly, the lower appellate Court rightly discarded the report of the Local Commissioner as the precise question of possession could not be referred to a Local Commissioner. In fact, it was for the trial court to decide on the basis of evidence which the parties were to adduce. In any case, suit for injunction is not maintainable against a co-sharer.

I have heard learned Counsel for the parties as well as perused the judgment of the Courts below. Admittedly, the parties are co-sharers i.e. Plaintiff has 1/4th share whereas the remaining share is owned by the Defendant". Entries in the revenue record for the year 1977-82 continue to show the land to be in self-cultivating possession of co-sharer. Stray entry in respect of one Khasra No. 9//19/1/2 for the crop of Rabi 1981 was recorded to be in possession of the Plaintiff on payment of Chakota amount. The precise basis on which this entry has been recorded has not seen the light of the day. Admittedly, there is no document between the parties regarding creation of lease. There is no document on record in the form of any receipt vide which Chakota amount was paid to the Defendant for one year or the other. In fact, learned Counsel for the Appellant in all fairness conceded that there is no proof on record that any such document was ever with the Plaintiff. Thus, in the absence of any document creating a lease or proof with regard to payment of Chakota amount it is reasonable to infer that an entry in the revenue record has been made by the Patwari unauthorisedly. There has been violation of the instructions issued by the Financial Commissioner in this regard. According to the Instructions, it is duty of the Patwari before making any change in the existing entry at the time of harvest inspection to notify in writing the person or persons likely to be adversely affected by such a change of the entries. Not only this, the changes which are to be made have to be attested by the Lambardar or the Panch of the village. In case there is non compliance i.e. entries are made in violation of the Instructions issued by the Financial Commissioner, such entry is to be treated as null and void at the time of attestation of Jamabandi or even earlier. Somewhat similar matter came up for consideration before this Court in case reported in Amal Kumar and Ors. v. Bhupinden Singh and Ors. 1976 PLJ 26 and it was held that unless a prior notice in writing is given to person or persons likely to be adversely affected any change in Khasra Girdwari is null and void and hence does not bind the persons likely to be affected, Thus the conclusion arrived at by the lower appellate Court on appreciation of evidence and in the light of Instructions of the Financial Commissioner as well as the judicial pronouncement of this Court cannot be termed to be illegal or erroneous in any manner.

Similarly, there is no much merit in the plea of the Appellant that the lower appellate Court wrongful declined to place reliance upon the report of the Local Commissioner. As has come on record, the precise question of possession was to be determined by the Court and such a question could not be referred to the Local Commissioner. Thus, the lower appellate Court rightly declined to place any reliance upon the report of the Local Commissioner.

No other point has been urged. Thus, finding no merit in this appeal, the same is dismissed.