Samma Singh vs Thakur Singh

B. Rai, J.—This Regular Second Appeal has been filed by Defendants 1 and 2 (Appellants herein) against the judgment and decree, dated October 1, 1985 of the Subordinate Judge First Class, Nakodar, vide which the suit for permanent injunction filed by Thakur Singh Plaintiff (Respondent No. 1 herein) on the basis of possession was decreed, which on appeal was affirmed by first appellate Court vide its judgment and decree, dated February 23, 1989.

Brief facts of the case may be noticed. Thakur Singh Plaintiff filed a suit for a decree of permanent injunction restraining the Defendants from interfering in the lawful and peaceful possession of the Plaintiff over the land measuring 8 Kanals, comprised in Khewat/Khatauni No. 29/79, Killa No. 14/18(8-0), situated in the area of village Kaimwala, Tehsil Nakodar, District Jalandhar, alleging that the land was owned and possessed by him as the same was purchased from the Tehsildar Sales and the Defendants had no right or title to the suit land but they were threatening to dispossess him forcibly from the suit land. The Defendants refused to admit the claim of the Plaintiff. As such, Thakur Singh Plaintiff was forced to file the suit.

The suit was contested by the Defendants on various grounds, namely, that the Plaintiff was not in possession of the suit land and he was not entitled to the injunction, prayed for. It was also alleged that Defendant No. 1 had been in possession of the land in dispute for the last more than twenty years and the report of the Naib Tehsildar, Nakodar, clearly proved his possession that the Plaintiff was estopped to file the suit by his act and conduct and that he had no locus standi to file the present suit. It was also alleged that the suit was bad for misjoinder of parties.

On merits, it was alleged that Defendant No. 1 had been in possession of the suit land for the last more than twenty years and the Plaintiff was neither in possession nor was he an owner of the suit land. Hence, the suit deserved to be dismissed.

It is mentioned here that no replication was filed by the Plaintiff.

On the pleadings of the parties, issues reproduced hereunder were framed by the trial Court.

Whether the Plaintiff is owner and in possession of the land in dispute? OPP

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

Whether the Plaintiff is estopped to file the suit as alleged in the written statement? OPD

Relief.

Since Issues 1 and 2 were inter-linked, they were taken up together and it was held that the Plaintiff was in possession of the suit land as owner and he was entitled to the injunction, prayed for. Both these issues were decided in favour of the Plaintiff and against the Defendants.

Under Issue No. 3, finding was returned that the Plaintiff was not estopped from filing the present suit by his act and conduct. The Issue was decided accordingly.

In view of the findings recorded on the above Issues, the trial Court decreed the suit of the Plaintiff with costs.

The appeal filed by the unsuccessful Defendants failed and the learned Additional District Judge, Jalandhar, affirmed the findings of the trial Court on all the issues vide his judgment and decree, dated February 23, 1989, as stated in the opening paragraphs of this judgment.

I have heard the learned Counsel for the parties at length and have carefully gone through the material placed on the record.

It may be mentioned here that only the findings, on issues 1 and 2 have been assailed before me. It was argued by the learned Counsel for the Appellants that the trial Court had observed that the application for correction of the Khasra Girdwari was moved during the pendency of the suit land and the order was also passed during the pendency of the suit on November 19, 1985. He vehemently contended that this observation is factually wrong, as the suit out of which the present appeal has arisen, was instituted on April 4.1984, whereas application for correction of Khasra Girdawri was made on March 21, 1984. In this situation, the learned Counsel argued, the application for correction of Khasra Girdawri could not be said to have been made during the pendency of the suit and, therefore, the order dated November 19,1985 passed by the Assistant Collector 2nd Grade, Nakodar, affects the decision of the suit materially. However, it is available from the record that Khasra Girdawri entries for Harri 1985 and Sauni 1985 were ordered to be corrected by the Assistant Collector 2nd Grade, Nakodar, in favour of Samma Singh, Appellant No. 1 herein, It is not disputed that in a suit for permanent injunction on the basis of possession, the Court has to see as to which of the parties was in possession on the date of filing of the suit. In the present case, the suit was admittedly instituted on April 28,1984 and it was not available from the record that Khasra Girdwari entries were corrected in the name of Samma Singh for the year 1984 or prior thereto: The case of Thakur Singh Plaintiff is that the land in dispute was purchased by him on the basis of possession and entries to that effect were made in the jamabandi for the year, 1978-79 and mutation was also sanctioned in his favour. A perusal of jamabandi for the year 1978-79 Ex.P. 1 goes to show that Thakur Singh was recorded to be in cultivating possession of the suit land Ex.P.2 is the Khasra Girdawri for the crops Kharif 1979 to Rabi 1984. In this jamabandi also, Thakur Singh is recorded to be in cultivating possession of the suit land. As has been observed earlier, Khasra Girdawri entries in respect of Rectangle No. 14, Khasra No. 18 were not corrected in favour of Samma Singh. Assuming for the sake of argument that application for correction of Khasra Girdwari entries was made by the Appellants prior to the filing of the suit and the order correcting the said entries was also passed during the pendency of the suit, once it is found that Khasra Girdwari entries up to the crop Rabi 1984 were not ordered to be corrected, it cannot be said that the order, dated November 19, 1985 passed by the Assistant Collector 2nd Grade, Nakodar, has any effect on the rights of Thakur Singh, Plaintiff. From the evidence, both oral as well as documentary the two Courts below have concurrently found that Thakur Singh was in possession of the suit land till the date of the institution of the suit, viz., April 23,1984. The order correcting the entries in the Khasra Girdwari does not say that after passing of that order, Appellant Samma Singh came into possession of the suit land. Moreover, it was not so pleaded even in the written statement. No such suggestion was put to any of the witnesses in cross-examination. It is worth mentioning here that once the disputes have arisen between the parties, regarding the correction of Khasra Girdwari entries, the controversy cannot be allowed to, be transferred for decision to the Revenue Authorities. If any orders for the correction of the entries in the Khasra Girdwaries have been made by these authorities, those would be irrelevant in the Civil proceedings and only the evidence adduced by the parties in connection with the truthfulness or falsity of the Khasra Girdawri entries shall have to be assessed independently by the Civil Court. Reference in this behalf may be made to a judgment of this Court in Gurnam Singh and Ors. v. S. Jagjit Singh 1972 PLJ 211.

It is well settled by now by plethora of authorities and in view of the provisions of Section 100 of the Code of Civil Procedure, that this Court would not go into the sufficiency or otherwise of evidence recorded by the two Courts below especially when no substantial question of law had been raised during the course of arguments and nothing was pointed out by the learned Counsel for the Appellants that both the Courts below slipped in error in non-reading or mis-reading of evidence adduced by the parties.

There being no infirmity or illegality in the concurrent findings of the two Courts below, this appeal is bereft or any force and the same is dismissed with no order as to costs.

Appeal dismissed.