Raghbir Singh and Others vs Daya Nand and Others

L.N. Mittal, J.

CM No. 7245.C of 2008

For the reasons mentioned in the application which is accompanied by affidavit, delay of 137 days in filing the appeal is condoned.

CM No. 7246.C of 2008

For the reasons mentioned in the application which is accompanied by affidavit, delay of 275 days in refiling the appeal is condoned.

RSA No. 2478 of 2008

Raghbir Singh and Nitin legal representatives of Rishal Singh defendant No. 2 since deceased have filed the instant second appeal having remained unsuccessful in both the courts below.

Suit was filed by respondents No. 1 and 2 Daya Nand and Nihal Singh against appellants'' predecessor Rishal Singh and respondents No. 3 to 6. Plaintiffs and defendants No. 1 to 3 are sons of Harphool Singh whereas defendants No. 4 and 5 are sons of Jage Ram son of Harphool Singh. Parties are thus, descendants of Harphool Singh. Admittedly, Harphool Singh was tenant in possession of the suit land measuring 26 kanals.

The plaintiffs alleged that both the parties inherited tenancy rights of Harphool Singh in the suit land on his death. The plaintiffs claimed that they are in exclusive possession of 9 kanals 6 marlas land of killa No. 19 out of the suit land. The defendants threatened to harvest the plaintiffs'' standing crop from the said land and threatened to dispossess them therefrom forcibly and illegally. Accordingly, plaintiffs sought permanent injunction restraining defendants from interfering in peaceful possession of the plaintiffs over the land measuring 9 kanals 6 marlas of killa No. 19.

Defendant No. 2 admitted that Harphool Singh was tenant over the suit land and parties are legal representatives of said Harphool Singh. However, defendant No. 2 pleaded that about 38 years ago, there was family settlement during the life time of Harphool Singh and under the family settlement plaintiffs and defendants No. 1 and 3 to 5 relinquished their right of tenancy over the suit land in favour of defendant No. 2 and since then defendant No. 2 alone is tenant in possession of the entire tenancy land.

Defendants No. 3 to 5 supported the version of defendant No. 2. Defendant No. 1 was, however, proceeded ex parte and did not file any written statement.

Learned Additional Civil Judge (Senior Division), Bahadurgarh vide judgment and decree dated 24.12.2002 decreed the plaintiffs suit to the effect that plaintiffs and defendant No. 2 are joint tenants over the entire suit land; defendant No. 2 also having tenancy rights over the share of defendants No. 1 and 3 to 5. First appeal preferred by legal representatives of defendant No. 2 has been dismissed by learned Additional District Judge, Jhajjar vide judgment and decree dated 3.10.2006. Feeling aggrieved, legal representatives of defendant No. 2 have preferred the instant second appeal.

I have heard learned Counsel for the appellants and perused the case file.

Learned Counsel for the appellants contended that in khasra girdawari Ex. P2 for the year 1998 defendant No. 2 was recorded in exclusive possession of the suit land and therefore, plaintiffs cannot be said to be joint tenants over the suit land with defendant No. 2. The contention cannot be accepted. Change in khasra girdawari for the year 1998 in favour of defendant No. 2 was made during the pendency of the suit which had been instituted on 3.3.1997. The said khasra girdawari has, therefore, been rightly ignored by the courts below. On the other hand, in jamabandi for 1995-96 Ex. P1, both the parties were recorded to be joint tenants in possession over the suit land. Entries in jamabandi carry presumption of correctness which has not been rebutted by the defendants. On the other hand, stand of the defendants is that in family settlement about 38 years ago, defendant No. 2 became sole tenant when the plaintiffs and other defendants relinquished their tenancy rights in the suit land. However, no revenue entry pertaining to the said period of 38 years has been produced in evidence by the defendants to substantiate the aforesaid version of the defendants. The courts below have, therefore, rightly held the plaintiffs and defendant No. 2 to be joint tenants over the suit land with defendant No. 2 also having share of the remaining defendants. There is no illegality or perversity in the said finding which is based on proper appreciation of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine being devoid of any merit.