Karnail Singh and another vs Mehtab Singh and another

S.D. Bajaj, J.—Hakam Singh father of both the Plaintiffs in civil suit No. 303 of 1982 filed on November 9, 1982, owned 1/8th undivided share in 243 Kanals 4 Marias of land including the land in dispute. Each one of the two Plaintiffs also had 1/8th undivided share therein. Vide registered sale deeds Exhibits D.1 and D.2 dated October 13, 1982 and October 13, 1982 respectively Hakam Singh sold land measuring 24 Kanals out of the joint lands aforesaid comprised in rectangle No 31 Killa No. 15(8-0). rectangle No. 32 Killa No. 11 (8-0) and 12(8-0) situated in village Santokh Singh wala tehsil and district Ferozepur. Alleging themselves to be the joint owners in exclusive possession of the land sold by their father, both the Plaintiff Respondents filed against Defendant-Appellants (vendees) the civil suit aforesaid for permanent injunction restraining them from interfering with their peaceful possession and enjoyment of the disputed lands or from dispossessing them. Learned trial court decreed the suit on October 11, 1983. Civil Appeal No. III of 1983 filed on October 11, 1983 against the decision of the learned trial court was dismissed by the learned lower Appellate Court on August 22, 1985. Hence R.S.A. No. 3142 of 1985 in this Court.

I have heard Shri Ravinder Chopra, Advocate, for the Appellants, Shri M. L. Sarin; Advocate, for the Respondents and have carefully gone through the record of proceedings before the learned two courts below.

During the pendency of the R. S. A. on November 8, 1985 on the request of the Defendant-Appellants may learned brother G. C. Mital J. passed the following order:

The learned Counsel for the Appellants is very vehement in urging that the Appellants are in actual physical possession of the land in dispute and that is why they had been requesting the Court below to appoint a Local Commissioner to find out the exact position at the spot. Prima facie, the learned Counsel is right that when both the parties were pleading their respective possessions it was just and proper to have appointed a Local Commissioner to go to the spot and report as to who is in actual physical possession of the land in dispute. The Local Commissioner will be paid Rs. 700/- by the Appellants. After payment is made, the Local Commissioner will proceed to carry out the spot inspection and the report be submitted by 15-11-1985. No party would disturb the possession of the other party till further orders. To come up on 18-11-85.

Shri Vinod Khunger, Advocate, Local Commissioner so appointed, submitted his report on November 15, 1985 stating that Defendant-Appellants are in actual physical possession of the land in suit.

Basing their claim on the report aforesaid learned Counsel for the Defendant-Appellants vehemently urged that both the learned courts below have obviously erred in decreeing the suit of the Plaintiff Respondents for permanent injunction when the possession of the land in dispute was with the Defendant-Appellants. The report submitted by the Local Commissioner suffers from all the infirmities set out in Chapter 1-M of Volume I of the Rules and Orders of the High Court and is, therefore, of no evidentiary value at all. Both, the learned courts below have returned a concurrent and categorical finding of fact that in the revenue record consisting of the jamabandi of the land in suit for the year 1977-78 Exhibit P. 1 and Khasra Girdwaris for the years 1978 to 1985 Exhibits P. 2 and P 3 Plaintiff-Respondents as also their father Hakam Singh are duly entered as joint owners of undivided 1/8th share each and the Plaintiff-Respondents not their father are recorded to be in actual physical possession of the land sold by their father to Defendant Appellants. It is simply incredible that the father of plain tiff-Respondents transferred actual physical possession of this land to Defendant-Appellants because it was not with him as per entries in the revenue record: nor could he legally do so. Through their ''might is right policy'' Defendant-Appellants on March 27, 1984 obtained an order Exhibit A. 1 from Assistant Collector II Grade for correction of Khasra Girdawari entries in their favour which was reversed in appeal by the Collector on November 30, 1984 vide orders Exhibit R. 1 Plaintiff Respondents are, therefore, entered as joint owners in exclusive possession of the land in suit from the date prior to the execution of the sale deeds by their father Hakam Singh in favour of Defendant-Appellants. Jamabandi is part of the record of rights and entries therein carry a presumption of correctness in terms of Section 44 of the Punjab Land Revenue Act, 1887. Defendant Appellants have miserably failed to rebut this presumption.

Concurrent finding of fact returned by the learned courts below to the effect that Hakam Singh father of Plaintiff Respondents and vendor of Defendant-Appellants was joint owner of undivided 1/8th share of the land in dispute and could not, therefore, paet with actual physical possession of the land sold by him to Defendant-Appellants: vide sale deeds Exhibits D. 1 and D 2 is conclusive between the parties in the present second appeal. Attempts repeatedly made by Defendant-Appellants to disturb the revenue entries as also to get the factual position altered to their advantage on the basis of the report submitted by the Local Commissioner on November 15, 1985 in this Court having failed there is no merit in the appeal it is consequently dismissed with costs in view of the finding aforesaid, C.O.C.P. No. 102 of 1986 is rendered negatory and is consequently dismissed.