Hem Singh and Others vs Bhagat Ram and Others

Deepak Gupta, J.—This Regular Second Appeal is directed against the judgment and decree dated 2.3.2000 passed by the learned District Judge, Chamba in Civil Appeal No. 53 of 1997 whereby he allowed the appeal filed by the Defendants-Appellants and set aside the judgment and decree dated 22.9.1997 passed by the learned Sub Judge, 1st Class, Chamba decreeing the suit of the Plaintiffs.

Briefly stated the facts of the case are that the Appellants (hereinafter referred to as the ''Plaintiffs'') filed a suit alleging that they are joint owners in possession of the suit land and prayed that the Respondents-Defendants be restrained by a decree of permanent prohibitory injunction from interfering in the suit land. In the alternative, it was prayed that in case the Defendants take forcible possession of the suit land during the pendency of the suit then a decree of possession be also passed in their favour.

The Defendants contested the suit mainly on the ground that they and their predecessor-in-interest are coming in possession of the suit land for the last more than 35 years and have become owners of the same by operation of law. In the alternative, it was prayed that the Defendants have become owners by way of adverse possession. It was also alleged that one of the Plaintiffs was a retired revenue officer and he had managed to ensure that the revenue entries did not reflect the possession of the Defendants and, therefore, the Defendants had filed an application for correction of the revenue record.

The learned Trial Court decreed the suit and held the Plaintiffs to be in possession of the same and restrained the Defendants from interfering in the suit land.

The learned Lower Appellate Court came to the conclusion that the Plaintiffs were not in possession of the suit land at the time of filing of the suit and there was No. evidence on record to suggest that they had been dis-possessed during the pendency of the suit and, therefore, they were not entitled to the relief of injunction. The learned District Judge, therefore, dismissed the suit.

Though this Regular Second Appeal was admitted on a number of questions of law, I find that none of them arise for consideration in the present case. The only question is whether the Plaintiffs were in possession of the suit land at the time of institution of the suit or not. The finding on this question is a pure finding of fact and cannot be interfered with in second appeal u/s 100, Code of Civil Procedure.

Only one of the Plaintiffs, Gurdial Singh stepped into the witness box as PW/1. He stated that the suit land is in the possession of the Plaintiffs and that the Defendants started interfering in the same in January, 1990. According to this witness, Kanhiya Ram,, Defendant No. 1 had never remained in possession of the suit land. In examination-in-chief, other than making a statement that the Defendants had started inference in January, 1990, he did not say another word. In cross-examination, PW/1 admitted that sometimes the Defendants ploughed the fields and some times they cut grass from the suit land. The Plaintiffs have never complained about the same to any authorities. He could not even give the Khasra numbers of the land and does not reside in village Kiani where the land is situated.

On the other hand, Defendant No. 1 stated that the suit land is in his possession and prior to that it was in the possession of his father. He also stated that in the year 1987 they had filed an application for correction of revenue entries and it was only thereafter that this suit was filed.

Gandharb Singh (DW/2) who was posted as Reader to Tehsildar produced the record of the case file of correction of revenue entries.

DW/3 Kehar Singh is the Kanungo who stated that in the year 1992, he in compliance to the orders of the Tehsildar went to the spot and submitted a report Ext. DW2/B. According to this witness, the possession of the Defendants was found on the suit land.

DW/5, Salim Mohd. is also a Kanungo and he stated that on 13.9.1987 he went to the spot and then submitted a report, Mark ''A'' in which he has recorded that the possession was of the Defendant Kanhiya. 12. DW/4 is Balia Ram. He is an independent witness who owns neighbouring land and according to him, he always seen Bhagat Ram and earlier his father Kanhiya Ram in possession of the suit property. He also stated that these two persons used to pay rent to the owners.

None of the parties produced the revenue record. From the evidence led by the parties it appears that in the revenue record, the possession was shown to that of the owners. That is why the Defendants filed an application for correction of the revenue entries. In the suit for injunction, it was for the Plaintiffs to prove that they were in possession of the suit land and that they had been dispossessed after the institution of the suit. The Plaintiffs have miserably failed to prove that they were at any time in possession of the suit land. The entire evidence clearly indicates that it is the Defendants who were in possession of the suit land.

Reliance placed by Mr. Anand Sharma, learned Counsel for the Appellant on the judgment of the Apex Court in Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, is totally misplaced. A District Judge is supposed to go through the facts and in case the findings of the learned Trial Court is erroneous, it is the duty of the first Appellate Court to correct the same. If two views are possible, he may not substitute his opinion for that of the learned Trial Court but when only one opinion is possible, he must correct the same.

Mr. Sharma also relied upon two judgments in Mohar Singh v. Manju Devi and Ors. 1996 (2) SLC 197 and Kedar Nath v. Sunil Kumar and Ors. 2010 (1) Him.L.R. 98 and submits that the Defendants have failed to produce any agreement to show that they were paying rent and, therefore, tenancy could not have been presumed.

The Plaintiffs have to stand on their own feet. Before asking Defendants to prove tenancy the Plaintiffs have to show that they were in possession of the suit land at the time of filing of the suit. A suit for simplicitor injunction unless the Plaintiffs proved their possession would not lie. The Defendants have led sufficient evidence to prove that they were in possession of the suit land for many years as such the learned Lower Appellate Court was fully justified in holding that the suit had to be dismissed. Therefore, I find No. substantial question of law much less a substantial question of law arises in the appeal which is accordingly rejected. No. order as to costs.