Gurdip Singh vs Sohan Singh

Jawahar Lal Gupta, J.—The plaintiff filed a suit for a permanent injunction for restraining the defendants from "interfering into or taking possession of land measuring 78 Kanals 14 Marlas." The trial court dismissed the suit. The plaintiff filed an appeal. The appellate Court found that "I am also of the view that the defendantrespondents have become owners of the suit land on the basis of allotment letter and the possession of the suit land was delivered to the defendants vide report No. 203 dated 2111991 ". Accordingly, the appeal was dismissed. Aggrieved by the judgment and decree, the plaintiff has filed the present second appeal.

Mr. V.K. Jain, learned counsel for the appellant, has contended that the Trial Court has found as a fact that the report No. 203 dated January 21, 1991, was a fake document. Consequently, it had held that the defendants were not in possession. Still further, the learned counsel submits that according to the Jamabandi for the year 19941995, a copy of which has been produced along with an application for permission to lead additional evidence, the plaintiffappellant is in possession of the land and the Central Government has been recorded as the owner. On this basis, it is contended that the findings recorded by the learned lower appellate Court cannot be sustained. Learned counsel has also referred to an order dated December 21, 1993, passed by the Collector, Sub Division, Malout, during the pendency of the civil suit by which he rejected the appeal filed by the respondents against the order of the Assistant Collector dated June 8, 1993, regarding the correction of entry in the Khasra Girdawari. He has also referred to the exparte interim order ''E'' passed on September 8, 1993, by the Financial Commissioner (Appeals), Punjab. The claim made on behalf of the appellants has been controverted by the learned counsel for the respondents.

The report No. 203 dated January 21, 1991 has been produced on the record as Exhibit D6. It is admitted by Mr. Jain that this report has been signed by Nirmal Singh and Parminder Singh who had appeared as PW Nos. 1 and 3 for the plaintiffappellant. The very fact that the witnesses produced by the plaintiffappellant are signatories to the report by which possession was shown to have been handed over to the defendantrespondents indicates that the report was not a false or a fake document. The presence of these witnesses for the plaintiff is clear indication of the correctness of the report. Once this report is accepted as correct as has been found by the learned appellate Court, it is not understood as to how an entry could be made in the year 199495 that the plaintiff was cultivating the land as Gair Marusi tenant under the Central Government. Even though no case for allowing the appellant to produce additional evidence is made out, yet, even if this document is taken into consideration, its correctness is extremely doubtful. Equally, it is clear from a perusal of the order dated December 21, 1993, passed by the Collector that the appeal filed by the respondents against an order for correction of Khasra Girdawari was rejected on the basis that the report dated January 21, 1991, had been stayed on the same day. In this view of the matter, the Collector had observed that the stay order having been passed on the same day, it shall be deemed to have come into force immediately and it would not be assumed that the appellants were handed over possession. Primafacie, there was no warrant for this view. There is nothing to show as to when the stay order was communicated after it had been passed. As for the order dated September 8, 1993, passed by the Financial Commissioner, a copy of which is on record as Mark ''E'', it may be observed that only ex parte directions for maintenance of status quo were given. It does not in any way show that the appellants were held to be in possession.

In view of the above, the contention raised by the learned counsel for the appellant cannot be accepted.

Faced with the situation, the learned counsel for the appellant has contended that in view of the finding recorded by the lower appellate court on the issue No. 5 that it had no jurisdiction to try the controversy between the parties, the other issues should not have been gone into. Admittedly, the court had framed issues on the basis of the pleading of the parties. Once issues had been framed, the findings had to be recorded. Still further, nothing was done by the appellant to claim that the question of jurisdiction should be treated as a preliminary issue. No such objection is shown to have been raised before the learned lower appellate Court. Lastly, it may also be mentioned that if the Civil Court had no jurisdiction, then the very suit filed by the appellant was incompetent. That being so, the appellant''s case is not advanced in any manner whatsoever.

No other point has been raised. In view of the above, it is clear that even though the appellant had no title to the property and has not been proved to be in possession, he had filed a suit for permanent injunction and dragged this litigation for the last many years. No ground for the issue of a permanent injunction as prayed for by him was made out. He was neither the owner nor in possession. Consequently, he had no ground for claiming that the respondents who are the owners should be restrained from interfering with his possession. Resultantly, there is no merit in this appeal. It is dismissed. The respondent shall be entitled to costs which are assessed as Rs. 5000/.