Karan Singh vs Shakuntla Devi and Others

Ram Chand Gupta, J.—The present regular second appeal has been filed against judgment and decree dated 11.12.2010, passed by learned District Judge, Gurdaspur, allowing appeal filed by Respondents-Plaintiffs against judgment and decree dated 1.6.2009 passed by learned Civil Judge, Junior Division, Pathankot, vide which suit filed by Respondents-Plaintiffs was dismissed and thereby decreeing the suit filed by Respondents-plaitniffs.

I have heard learned Counsel for the Appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below.

Briefly stated Respondents-Plaintiffs filed a suit for permanent injunction restraining present Appellant-Defendant from interfering or dispossessing them from the land in dispute on the ground that they have been continuing in possession of the same as Gair Dakhilkar and the same is owned by them as shamlat deh hasab Paimana Malkiat and, however, Defendant without any right entered into the said property and interfered in their possession.

Defendants have taken the plea that the Plaintiffs are in illegal possession of the land in dispute and that they are not in possession as tenant nor they are having any right whereas present Appellant-Defendant is having share in the shamlat land of the village and hence, a counter-claim was also filed to claim possession of the land in dispute and, however, later on the counter-claim was withdrawn on the plea that he had taken possession of the land in dispute during pendency of the suit.

Learned trial Court dismissed the suit filed by Respondents-Plaintiffs mainly on the ground that they have not been able to prove that they are in possession as tenant and as they are having no right to remain in possession of the same, they cannot seek injunction. However, the finding of learned trial Court was reversed by learned first appellate Court on the ground that possession of Respondents-Plaintiffs over the land in dispute has been proved as per revenue record and even has not been denied by Appellant-Defendant, who is having no right over the land in dispute and hence, Respondents-Plaintiffs are having right to protect their possession.

It has been contended by learned Counsel for the Appellant that even as per entry in the revenue record possession of Respondents-Plaintiffs is as Gair Dakhilkar, i.e., without paying any rent and hence it is contended that they are in unauthorised possession and hence they are having no right to seek injunction against true owner. It is further contended that Appellant-Defendant is having share in the shamlat land of the village and hence he is owner of the land in dispute. He has placed reliance upon Chand Singh (dead) through L.Rs. v. Gangadhar 2006 (1) RCR (Civil) 434, wherein it has been observed by this Court that no injunction can be issued against true owner or in favour of a person in unauthorised possession.

Sufficient reasons have been given by learned appellate Court in reversing the judgment and decree passed by learned trial Court. As per entry in the jamabandies for the year 1998-99, Ex.P1 and for the year 2003-04, Ex.P2, Respondents-Plaintiffs are recorded in possession of the land in dispute. Similar are the entry in Khasra girdawari from kharif 1989 to kharif 2003. Possession of Respondents-Plaintiffs over the land in dispute is duly proved. Their possession has even been admitted by Appellant-Defendant in the written statement and he even sought counter-claim for possession. However, later on the counter-claim was withdrawn on the plea that he had taken possession from Respondents-Plaintiffs on 1.6.2009, i.e., during pendency of the suit without clarifying as to how he had taken possession from Respondents-Plaintiffs Moreover, Appellant-Defendant is having no right over the land in dispute. Hence, he cannot forcibly interfere in the possession of Respondents-Plaintiffs over the land in dispute. He has taken the plea that he is having share in the shamlat land of the village. However, even if it is taken to be correct, he cannot claim any right in the land in dispute unless the same falls in his share on partition of shamlat land. It has been rightly observed by learned first appellate Court that at this stage, Appellant-Defendant is having no title over the land in dispute and hence having no right to interfere in the established possession of Respondents-Plaintiffs over the land in dispute.

Learned first appellate Court has decreed the suit filed by Respondents-Plaintiffs restraining Appellant-Defendant from interfering in their possession over the land in dispute except in due course of law.

Hence, in view of these facts, it cannot be said that any illegality has been committed by learned first appellate Court in passing the impugned judgment and decree. Finding recorded by the lower appellate court is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine.