Parkash alias Parkash Chand and Another vs Paramjit Singh and Others

Rakesh Kumar Garg, J.—This is defendants'' appeal challenging the judgment and decree of the lower Appellate Court whereby the suit of the plaintiff-respondents for permanent injunction has been decreed. The plaintiffs filed the instant suit claiming themselves to be co-sharers of the suit land alleging that defendants No. 1 to 6 were threatening to oust them from the suit land and were trying to interfere with their possession.

Upon notice, defendants No. 7 and 8 were proceeded against ex-parte and defendants No. 1 to 6 appeared and contested the suit.

Defendants No. 1 to 4 filed their joint written statement, submitting that they were in possession of khasra No. 1000(2-10), as per jamabandi for the year 1993-94 for the last 30 years and were using the same as their Haveli and had also sown wheat crop in a part of the suit property and thus, the suit was not maintainable against them.

Defendants No. 5 and 6 (now appellants) filed separate joint written statement, inter-alia, contending that they were in possession of khasra Nos. 985 and 989 out of suit land before the partition of the country and prior to them, their father Babu Ram was in possession of the aforesaid khasra numbers. They have constructed there a thatched house and installed a fodder cutter in part of the suit land and they are also using it as Haveli and the revenue record showing the plaintiffs as owners, is incorrect and is liable to be ignored.

On the basis of pleadings of the parties, followings issues were framed:-

Whether the plaintiffs are owners in possession over the disputed property as co-sharers? OPP.

Whether the plaintiffs are entitled for permanent injunction as prayed for? OPP.

Whether the plaintiffs have no locus standi to file the present suit? OPD.

Whether the suit is not maintainable in the present form? OPD.

Relief.

After considering the evidence on record, the trial Court dismissed the suit. While dismissing the suit, the trial Court further found that defendants No. 5 and 6 (now appellants) were in possession of land measuring 1 kanal 7 marlas (a part of the suit land) and their possession is proved from the report of the Local Commissioner.

Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-respondent filed an appeal before the first Appellate Court, which was accepted and the suit was decreed in the following terms:-

Suit for permanent injunction restraining the defendants No. 1 to 6 from interfering with the possession of the plaintiffs in respect with land measuring 5 kanals 1 marla contained in Khata No. 202/314 and comprised in Kh. Nos. 985,986,989 and 1000 as entered in the jamabandi for the years 1993-94 situated in village Amolh, Tehsil Mukerian, District Hoshiarpur for ever.

The relevant observations of the lower Appellate Court may also be noticed as under:-

PW-1 Jagan Nath in his statement dated 19.3.02 have stated that he is in common possession with Harnam, Guro and Preeto etc. on the suit land since 1950 and apart from them nobody else ever came into possession of the suit land. In his cross examination he has admitted that suit land is the ownership of Gram Panchayat. However, during his cross-examination nothing could come to disprove his possession over the suit property. While assessing his oral statement made before the learned lower court vis-a-vis, the revenue record i.e. Jamabandi for the year 1993-94 Ex. P1 Khasra girdwari pertaining to the year 1994-98 Ex. P2, jamabandi pertaining to the year 1978-79 Ex. P3, and jamabandi for the year 1983-84 Ex. P4, its stand established that the plaintiffs-appellants are in common possession with other persons as named in the jamabandi for the year 1993-94 and the suit land comprised of khata No. 202/314, khasra No. 985, 986, 989 and 1000, it is worth mentioning here that presumption of truth is attached to the revenue record and the bare perusal of the same establishes on the record that the plaintiffs are in common possession with other persons as named in the jamabandi Ex. P1 for the year 1993-94. The learned counsel for the appellants have argued that the appellants-plaintiffs have been able to prove their possession over the suit property by way of leading cogent and convincing evidence in the shape of jamabandi and khasra girdawari which are Ex. P1 to Ex. P4, on the file and the defendants have no concern over the suit property. He has further argued that the defendants No. 7 and 8 in the lower court are also brothers and sister of Jagan Nath plaintiff and they also hold common possession with the appellants-plaintiffs over the suit property.

On the other hand the learned counsel for the respondents have vehemently argued that the defendants in the lower court have examined as many as six witnesses who have deposed in support of the case of defendants-respondents. He has further argued that said Jagan Nath have admitted the possession of Parkash and Jagdish in the suit land alongwith him. He has further argued that as far as report of the Local Commissioner is concerned, plaintiffs in their pleadings as well as in their oral evidence, testified by PW 1 Jagan Nath while appearing in the witness box has not uttered even a single word regarding report of the Local Commissioner which tantamount to admitting the correctness of report of Local Commissioner and the same is Ex. P1 (wrongly mentioned as P1, should be as D1) on the file. Moreover he has argued that no objection was filed by the plaintiffs against the said report of the Local Commissioner with regard to the demarcation of the suit property. However, I do not find contention of learned counsel for the respondents to hold any water. Bare perusal of the file reveals that there was no Local Commissioner appointed by the Civil Court i.e. Trial Court below. However, the Halqa Kanugo who is purported to have been appointed by the Tehsildar Dasuya for demarcation of the suit property, submitted his report before him and certified copy of the same was produced in the file of the present case. If one goes through the report of Kanugo which is placed on the file as Ex. P1 (Ex. D1), it comes to ones notice that the said Kanugo namely Gurbachan Singh while preparing this report have not bothered to mention the date on the same. However, all the can be gathered from this report and an application accompanying it is that this report is result of an application moved by Parkash Chand son of Babu Ram on 25.11.02 and thereafter the demarcation was done somewhere in February 2003. Only PW which was examined as PW-1 namely Jagan Nath was examined on 19.3.02. Hence there is no question of him uttering any word about the report which is subsequent in date. In my view the learned lower court while relying the said report have wrongly came to the conclusion in para No. 18 of her judgment that "Jagan Nath while appearing in the witness box even did not utter a single word containing therein that report of the Local Commissioner is not correct and it cannot be relied upon."

Even if the said report is weighed vis-a-vis the oral evidence and the other documentary evidence available on the file, it is established on file that the said Kanugo was not a Local Commissioner appointed by the learned trial Court. Moreover, while going through his cross-examination it comes to the surface that the demarcation was done at the instructions of Tehsildar Dasuya. It has further come in his statement that he did not fix any pucca point while conducting the demarcation proceedings. He has admitted that he did not issue any notice with regard to his conducting any demarcation of the suit land. As such the learned counsel for the appellants-plaintiffs has contended that no reliance can be placed on this report as the same has not been conducted as per rules of the Hon''ble High Court and the instructions of the Financial Commissioner Punjab. In the report itself DW-3 has not mentioned the measurement of Khasra number of which the demarcation was conducted at the spot. Hence the learned counsel has argued that application moved by Parkash Chand during pendency of the suit before the trial Court was moved only with a view to subdue the process of law and the same is not binding upon the rights of the appellants-plaintiffs. He has further argued that there are no signatures of the appellants-plaintiffs on the said report of demarcation.

On the other hand the learned counsel for the respondents have argued that Jagan Nath was very much present at the time of conducting of demarcation proceedings by DW-3. However, he refused to sign the same and the report of the DW-3 cannot be thrown out only on the basis that it does not have signatures of appellants-plaintiffs on the same. However, I do not find myself able to accept this contention of the learned counsel for the respondent. I am of the considered opinion that a man may lie but a document cannot. The revenue record in the shape of jamabandies & khasra girdawari Ex. P1 to Ex. P4 speak volumes about the possession of the applicant-plaintiff. In view of the above set of circumstances and the evidence led by both the parties. I am constrained to hold that appellants-plaintiffs have duly proved by leading cogent and convincing evidence is in the shape of revenue record i.e. Jamabandies and khasra girdawaries pertaining to the suit land which are Ex. P1 to Ex. P4 on the record. Hence I reverse the findings of the learned lower court on issue No. 1 and 2 and hold that the appellants-plaintiffs is in common possession of the suit land with other person mentioned in the jamabandi Ex. P1. Further I hold that being in common possession he has every right to protect his possession. Hence he has locus standi to file the suit. Accordingly I also reverse the findings on issue No. 3 and hold that the appellants-plaintiffs have locus standi to file the present suit. No interference is called for on the findings given by the learned lower court on issue No. 4. Hence same is affirmed.

Aggrieved from the aforesaid judgment and decree of the lower Appellate Court, defendants No. 5 and 6 only have filed the instant appeal.

Counsel for the appellants has vehemently argued that the judgment and decree of the lower Appellate Court is liable to be set aside, as it is fully proved from the report of the Local Commissioner that the appellants are in possession of land measuring 1 Kanal 7 Marlas comprised in Khasra No. 985 and 989 and thus, the decree of permanent injunction in favour of the plaintiff-respondents, restraining them from interfering in possession of the plaintiff-respondents in the aforesaid land, should not have been granted. Counsel for the appellants further argued that the land in question is a shamlat land and thus, the Civil Court had no jurisdiction to entertain the suit and thus, the impugned judgment and decree are nullity and are liable to be set aside.

Thus, keeping in view the arguments raised, counsel for the appellants submitted that following substantial questions arise in this appeal for consideration of this Court:-

i) Whether the impugned judgment and decree are perverse, being the result of mis-interpretation/misreading of evidence on record;

ii) Whether the impugned judgment and decree are without jurisdiction, keeping in view the bar of Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961, which provides that no Civil Court shall have jurisdiction to entertain any question in relation to shamlat deh?

However, on the other hand, counsel for the respondents has supported the findings of the lower Appellate Court and has argued that the appellants are neither owner nor in possession of the suit land and thus, the impugned judgment is liable to be sustained. Moreover, the questions, as raised before this Court with regard to the fact that the land in dispute is a shamlat land, was never raised before the Courts below and on the basis of aforesaid arguments, it is prayed that this appeal be dismissed.

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.

So far as the question with regard to jurisdiction of the Civil Court in relation to shamlat deh is concerned, the said question does not arise in the case in hand, as no such averments have been made in the pleadings of the parties. Neither any such evidence has come on record.

The argument of the appellant that the lower Appellate Court has ignored the report of the Local Commissioner wrongly, is also liable to be rejected, keeping in view the observations of the lower Appellate Court in the judgment and decree, wherein the lower Appellate Court has found that no such Local Commissioner was appointed by the Trial Court/Civil Court and in fact the report Ex. P1 (Ex. D1) placed on record by the appellants was a demarcation report conducted by the Halqa Kanungo under the instructions of the Tehsildar of the area at the back of the plaintiff-respondents. Moreover, while discarding the said report, the lower Appellate Court has found that before giving the report, the revenue officer has not fixed pucca points and therefore, the report could not have been relied upon. It may further be noticed that the reasoning given by the trial Court to accept the report of the Local Commissioner, has been rightly rejected by the lower Appellate Court, because the PW 1 Jagan Nath was examined on 19.3.2002 whereas the demarcation report is the result of an application moved by the appellants on 25.11.2002 and the demarcation report was submitted in February, 2003 and as such, PW-1 Jagan Nath could not have said anything with regard to the said demarcation report. The question of possession is a question of fact. On the basis of arguments raised, learned counsel for the appellants wants this Court to take a different view than taken by the lower Appellate Court, after reappraising the evidence, which is not permissible u/s 100 CPC, as there is no misreading of the evidence which has resulted into perverse findings by the lower Appellate Court.

For the reasons record above, this Court is of the view that no substantial questions of law, as raised, arise in this appeal.

No other point has been argued. Dismissed.