Mohinder Singh vs Gurminder Singh and Another

Mahavir S. Chauhan, J.

Civil Misc. No. 9474-C of 2013

This is an application for bringing on record the legal representatives of deceased-appellant/Mohinder Singh, who has died on 6.8.2006, during the pendency of the instant appeal. Learned counsel for the respondents does not object to acceptance of the application.

In this view of the situation, the application is allowed, legal representatives of the deceased-appellant/Mohinder Singh are brought on the record. Amended memorandum of parties already filed is taken on the record.

CM. stands disposed of.

RSA No. 1831 of 1987

Appellant Mohinder Singh son of Ram Singh had approached the court of learned Senior Sub Judge, Gurdaspur (for short, "the trial court") by way of Civil Suit No. 305 of 1984 for grant of a decree of perpetual prohibitory injunction restraining the respondents from interfering in his cultivating possession as a tenant over the land measuring 1 kanal 11 marlas comprised in Rectangle No. 68R/1/1, Khewat 207, Khatauni 594, as entered in jamabandi 1978-79 situated in village Wadala Granthian, Sub Tehsil Qadian, District Gurdaspur (hereinafter referred to as ''the suit land'').

It was claimed by the plaintiff-appellant in the plaint that he was in continuous cultivating possession of the suit land as a tenant for the last about 8 years but the respondents had intended to throw him out from the suit land and to take possession thereof on the plea that they had purchased it from Shangara Singh, the owner of the suit land. Suit of the plaintiff-appellant was contested by the respondents. In the written statement, various preliminary objections were raised and possession of the appellant over the suit land was denied whereas that of the respondents was asserted on the basis of a recital in their favour in the sale deed.

From the pleadings of the parties, trial Court formulated following issues:-

Whether the plaintiff is in possession of the suit land as a tenant?OPP

Whether the plaintiff is entitled to the injunction prayed for? OPP

Relief.

After both the sides had adduced evidence in support of their respective pleas, the trial Court heard them and perused the evidence and pleadings, returned findings on both the issues in favour of the appellant and vide judgment and decree dated 8.11.1985 decreed the suit of the plaintiff-appellant thereby restraining the respondents from dispossessing him from the suit land forcibly and except in due course of law, leaving the parties to bear their own costs.

Respondents challenged judgment and decree dated 8.11.1985 of the trial Court by way of Civil Appeal No. 268 of 1985 before the learned District Judge, Gurdaspur, (for short, ''the first Appellate Court''), which, after contest, was accepted and findings recorded by the trial Court were reversed and the suit of the plaintiff was dismissed, vide judgment and decree dated 3.4.1987.

To impugn correctness of judgment and decree dated 3.4.1987 of the first Appellate Court, instant Regular Second Appeal has been brought by the plaintiff-appellant.

I have heard learned counsel for the parties and have also perused the record.

Though, it is argued on behalf of the appellant with force that in the revenue record appellant is shown to be in cultivating possession as gair marusi and the first Appellate Court has wrongly reversed the well reasoned findings recorded by the trial Court by holding the appellant to be in possession of the suit land. According to learned counsel for the appellant, a confusion has been created by the fact that appellant Mohinder Singh is the son of Ram Singh and is a tenant in the suit land, whereas there is another Mohinder Singh son of Gian Singh shown as co-sharer in respect of the suit land and the learned lower Appellate Court has mistaken the plea of the appellant to be based on his ownership over the suit land as a co-sharer.

Mr. G.S. Bal, Advocate, learned counsel representing the respondents, however, supports the impugned judgment and decree dated 3.4.1987.

After hearing learned counsel for the parties and on perusal of the record, it is found that the appellant has no case.

The learned trial Court to record findings in favour of the appellant has relied merely on his imagination and guess work than the evidence available on record. A very important issue pertaining to possession over the suit land has been disposed of in just four sentences by stating that from the revenue record, it comes out that the appellant is in possession of the suit land. The revenue record has not been discussed and oral evidence has been totally missed by the trial court. Learned first Appellate Court on appreciation of the revenue record has recorded a finding that throughout the revenue record there is only one stray entry showing the appellant to be in possession of the suit land as a "Hissedar" or say "co-sharer". The learned first Appellate Court also has recorded a finding of fact that the suit land was purchased by the present respondents vide sale deed dated 28.10.1983 (Exhibit D1) wherein there is a recital that possession of the suit land was delivered to the vendees. The suit out of which the instant Regular Second Appeal has emerged was, admittedly, filed after execution of the sale deed dated 28.10.1983, (Exhibit D1) In this view of the situation, the learned first Appellate Court came to a definite conclusion that appellant could not establish his possession much less settled possession over the suit land and as such was not entitled to a decree of perpetual prohibitory injunction.

Though it is vehemently argued on behalf of the appellant that in the revenue record, he is shown to be in possession of the suit land as gair marusi but on going through the record requisitioned from the trial Court, it comes out that there are only 3 documents available on record in the name of documentary evidence which are Exhibits P1, P2 and Exhibit D1. Exhibit P1 is Khasra Girdawari for Kharif 1982 and Rabi 1983, Kharif 1983 and Rabi 1984. In this Khasra girdawari, there is an entry (in column No. 8 relating to ''mutation of right of cultivation cess'') in the name of Mohinder Singh son of Ram Singh in red ink but it has been later on scored off or say deleted. Except for this entry, there is no entry on record showing Mohinder Singh son of Ram Singh or son of Gian Singh rather it reflects entry in the name of Ram Singh son of Narain Singh as co-sharer to be in possession of the suit land. Document, Exhibit P2, is the jamabandi for the year 1978-79. This document, admittedly, does not show possession of the appellant over any part of the suit land. Even the counsel for the appellant, after going through these documents has not been able to point out any entry showing possession of the appellant over the suit land. The third document is sale deed dated 28.10.1983 (Ex. D1). By way of this sale deed, the respondents have purchased the suit property from Shangara Singh. There is a recital in the sale deed Ex. D1 that possession of the land mentioned in the sale deed (subject matter of the appeal) was delivered to the vendees. There is no rebuttal to this covenant in the sale deed. In view of the aforesaid discussion, the findings recorded by the first Appellate Court that the appellant has failed to establish his possession, deserves affirmation but with a modification that findings recorded by the learned first Appellate Court that there is only one stray entry showing possession of the appellant over the suit land, is factually incorrect as the revenue record does not support this finding recorded by the learned first Appellate Court. In fact, throughout the revenue record available on record of the trial Court, there are no entries supporting possession of plaintiff-appellant over the suit land.

Be that as it may, in view of sale deed Exhibit D1, the respondents have a better title as compared to the appellant, who has failed to establish his possession in any capacity over the suit land and for that reason also, the appellant is not entitled to any protection.

Above this all, there, being no question of law, much less substantial question, involved in this appeal, I am not inclined to interfere with the findings of fact recorded by the learned first Appellate Court. Appeal is, therefore, dismissed with no order as to costs.