Katar Singh vs Karnail Singh

B. Rai, J.—The suit for permanent injunction filed by Katar Singh plaintiff was dismissed by the Subordinate Judge First Class, Gidderbaha, vide his judgment and decree, dated January 29, 1979. Appeal preferred by Katar Singh was dismissed by the learned District Judge, Faridkot, affirming the findings recorded by the trial Court vide his judgment and decree, dated September 4, 1979.

The land measuring 14 Kanals 17 Marlas situated in the revenue estate of village Mallan belonged to Katar Singh as mentioned in the Jamabandi, Exhibit P.1, for the year 197475. During the course of consolidation operations, the said land was allotted to Karnail Singh. Order passed by the Consolidation Authorities still holds the field, in spite of being challenged up to the High Court. It was in pursuance of that decision that possession of the suit property was delivered to Karnail Singh by the revenue officials. However, Katar Singh claimed that he was still in possession of the suit land and that Karnail Singh was trying to evict him by force. Therefore, he filed a suit for permanent injunction against Karnail Singh seeking restraint upon him from interfering in his possession.

The suit filed by Katar Singh was resisted by Karnail Singh on the allegation that possession of the land in dispute was already delivered to him by responsible revenue officials in presence of responsible persons of the village. As such, Katar Singh was not entitled to the injunctive relief against him.

The pleadings of the parties gave rise to the following issues :

(1) Whether the plaintiff is in possession of the suit land ? OPP

(2) Relief.

After considering the oral as well as documentary evidence led by the parties, under Issue No. 1, the trial Court observed that it appears that the defendant was in possession of the suit land at the time of filing the suit. Therefore, this issue was decided against the plaintiff. Consequently, the suit was dismissed. The plaintiff also remained unsuccessful in appeal before the learned District Judge, Faridkot.

Hence, this Regular Second Appeal at the instance of the plaintiff.

After having heard the learned counsel for the parties, I am of the considered view that the appeal has no merit and deserves to be dismissed.

It was argued by the learned counsel for the appellant that the findings recorded by the Courts below that possession had changed vide Rapat Roznamcha, Exhibits D.1 and D.2, is against the evidence and based on clear misunderstanding of these two documents. According to the learned counsel, these documents make it absolutely clear that only nishan dehi was given to the respondent as joint owner of the suit land. It was further argued that respondent did not get the land partitioned, that there was no question of his getting physical possession of a particular area and, therefore, the delivery of actual physical possession of the suit land to the respondent is not proved on record. It was also contended that no doubt the Khasra Girdawri entries, Exhibit D.4, were recorded in favour of the respondent in respect of crop Rabi 1978 but the respondent had got these entries recorded in his favour in connivance with the revenue officials concerned. There is no force in this contention. It cannot be disputed whether on the date of institution of the suit the plaintiff is or is not in possession of the suit property, is a finding of fact. It was found by the trial Court that as per entries in the Khasra Girdawri it was defendant who was recorded to be in possession of the suit land and that finding was affirmed by the learned District Judge in appeal. Therefore in view of the provisions of Section 100 of the Code of Civil Procedure, the concurrent findings of fact which are based on appreciation of evidence, cannot be successfully challenged in Regular Second Appeal. See also Radha Nath Seal (dead) by his legal representatives v. Haripada Jana and others, AIR 1971 SC 1049. Suit was filed by Katar Singh appellant on May 20, 1978, in respect of Khasra Nos. 9/1, 12/2 and 13 of Rectangle No. 257. In Jamabandi for the year 197475, the suit property is recorded to be in possession of the appellant. It is not disputed that the suit land was found to be the ownership of Karnail Singh in the consolidation proceedings by the Consolidation Authorities and that finding was upheld up to the High Court. Mutation No. 13970 was also sanctioned in favour of Karnail Singh. Vide Report Exhibit D.1, demarcation of the suit land was given by the revenue official in the presence of right holders of the village after effecting proclamation and to that effect, Report Exhibit D.2 was recorded in the Roznamcha Waqiati. A perusal of Khasra Girdawri Exhibit D.4 would show that in the crop Rabi 1978 recorded on April 1, 1978, Karnail Singh respondent was in possession of the suit property. The suit was filed by the appellant on May 20, 1978. Therefore, both the Courts below rightly came to the conclusion that on the date of the institution of the suit, Katar Singh appellant was not in possession of the suit land and it was Karnail Singh respondent who was found in possession of the same. As such, they rightly dismissed the suit of the appellant.

In view of the above discussion, no interference in the concurrent findings recorded by the two Courts below is called for. The appeal being without merit is dismissed. No costs.