Sulakhan Singh vs Prema and Others

R.L. Anand, J.—Unsuccessful plaintiff Shri Sulakhan Singh has filed the present regular second appeal and it has been directed against the judgment and decree dated 28.5.1998 passed by the Court of Additional District Judge, Amritsar, who affirmed the judgment and decree dated 11th April, 1994 passed by the Court of Additional Senior Sub Judge, Tarn Taran, who dismissed the suit of Shri Sulakhan Singh plaintiff-appellant.

The brief facts of the case are that Shri Sulakhan Singh filed a suit for permanent injunction against Arjan Singh, Atma Singh and Sucha Singh defendants on the allegations that he was the owner and in possession of Khasra No. 966(3-0) situated in the area of village Rani Wallah and with this khasra number the defendants have no concern. It is alleged by the plaintiff that defendant No. 1 asserts that he had obtained Nishan Delhi from the revenue department. The Nishan Delhi, if any, obtained by defendant No. 1 was illegal as the same has been obtained in connivance with the revenue authorities, defendant No. 1 got the name of the plaintiff removed from the column of ownership in the jamabandi for the year 1988-89 in collusion with the revenue Patwari and on the basis of nishan dehi threatened to interfere and take forcible possession of the land in dispute. The defendants were requested not to interfere and take forcible possession of the disputed number, but to no effect. Hence the suit.

Notice of the suit was given to the defendants who filed the written statement and denied the allegations. According to the defendants, defendant No. 1 and Sadha Singh, father of Sucha Singh and Atma Singh had purchased the suit land along with Khasra Number 960 and 967 vide sale deed dated 13.6.1958 from Mohan Singh and others, Arjan Singh and Sadha Singh are in possession of the suit land. Sadha Singh died four years back. Atma Singh, Sucha Singh sons of Sadha Singh and Arjan Singh are in possession of the land. On the basis of sale deed mutation was also sanctioned. Arjan Singh and others filed an application for correction of the Khasra Girdawari and the application was pending. Defendant Atma Singh had obtained demarcation of the suit land and the plaintiff did not raise and objection. The defendants are in possession of the suit'' land and, therefore, the plaintiff has no concern with the land in question, From the pleadings of the parties, the trial Court framed the following issues:

Whether the plaintiff is the owner is possession of the suit land?OPP

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

Relief.

The parties were allowed to lead evidence and vide judgment and decree of the trial Court the suit of the plaintiff was dismissed. The plaintiff was not satisfied with the judgment and decree of the trial Court, he filed an appeal before the court of Additional district Judge, Amritsar. who dismissed the appeal for the reasons given in para No. 8 of the judgment, which is reproduced as under:

"I have given anxious consideration to the arguments advanced by the learned counsel for the appellant but I do not find any merit in it. Perusal of the judgment shows that the appellant alone was not owner of the disputed Khasra number. Rather, it shows that the appellants is owner to the extent of 7/80 share in the disputed khasra number. The. appellant admitted that the Naib Tehsildar has inspected the disputed number. An application for correction of entries of the khasra girdawari filed by the respondents was decided against the appellant. Against that order of correction of the khasra girdawari in favour of the respondents, appeal was filed by the appellant which was rejected. Nothing was brought on the file if the said order passed by the competent authority was wrong on the face of it. The respondents had also examined DW4 Sat Pal Patwari who proved the entries in the roznamcha Ex. DW4/A and they also brought on the file Ex. DI original sale deed, Exhibit D5 copy of order dated 17.11.1992, vide which the entries of Khasra girdwari were corrected in the name of the respondents. Ex. D6 is the copy of the order dated 13.3.1993. Appeal filed against the order dated 17.11.1992 was rejected by the Collector. Exhibit D8 is the copy of the khasra girdwari for the years 1991 to 1993 and the last entry shows that the respondents are in possession of the disputed khasra number. In such circumstances. I find no error or illegality in the findings given by the learned trial Court on various issues and calls no interference in the same of this Court. Accordingly the findings of the learned trial Court are affirmed."

Still not satisfied with the judgment and decree of the Courts below, the present appeal.

I have heard Mr. B.R. Mahajan, learned counsel appearing on behalf of the appellant and Shri D.S. Pheniman learned counsel on behalf of the respondents and with their assistance, have gone through the record of this case which was summoned for the purpose of appraisal. Exhibit P-l is the Jamabandi for the year 1983-84 which clearly indicates that Shri Sulakhan Singh plaintiff-appellant is one of the co-sharers of the Khasra No. 966 measuring 3 Kanals 0 Maria and as per the column of possession i.e. column No. 5 the possession of Shri Sulakhan Singh has been recorded exclusively in the capacity of a co-sharer. This every entry has been repeated in the Jamabandi for the year 1988-89 which is Exhibit P-2 on the record. Yet there is a Khasra Girdwari for the year 1990-91 in which the possession of Shri Sulakhan Singh has been recorded against this very khasra number .in the capacity of a co-sharer. In the light of this position, there is no difficulty in holding that Shri Sulakhan Singh was in possession of this Khasra number in the capacity of a co-sharer. The present suit was instituted on 16th June, 1992. The record of the trial Court also shows that vide order dated 16th June 1992, the Court of Sub Judge 1st Class, Taran Taran after being satisfied with the averments of the plaintiff restrained the defendants from dispossessing the plaintiff from the land in dispute forcibly and illegally otherwise than in due course of law. Notice of the application u/s 39 Rules 1 and 2 C.P.C. was given to the respondent who contested the application and vide order dated 24th September, 1992 the said order was confirmed by the trial Court itself. This order has attained the finality. In other words, any order passed by the revenue authorities modifying the order dated 24th September, 1992 in the proceedings for the correction of the khasra girdwari will be considered as nullity as the revenue Court has no jurisdiction to change the khasra girdwari during the pendency of the suit especially when a finding of firm possession has already been recorded in favour of the plaintiff. This aspect of the case has not examined by the courts below.

Faced with this difficulty'' learned counsel for the respondents submitted that the order of changing the khasra girewari and the Jamabandi entries have been passed in the revenue authorities in the presence of the plaintiff-appellant and the revenue official also inspected the spot and then found the possession of the defendant-respondents. I am not in a position to subscribe to the arguments of the learned counsel for the respondent. The order of the revenue authorities which has been passed against the order of the civil Court does not carry any weight. Moreover, it is not understandable to this Court when Shri Sulakhan Singh plaintiff-appellant had surrendered the possession in favour of the defendants and why. The admitted position is as per the revenue record that both the parties are co-sharer but the possession of the plaintiff has been recorded with regard to the disputed khasra No. 966. In these circumstances, the possession of the appellant cannot be held to be illegal. He can only be ejected from the land in question in due course of law because the co-sharer is an owner of every inch of the land as held by the Hon''ble Full Bench of this Court in Bhartu v. Ram Sarup 1981 P.L.J. 204. Since both the courts have been misled in appreciating the evidence, therefore, a substantial question of law has arisen and the High Court in the regular second appeal can certainly examine this aspect of the case.

Resultantly, 1 allow this appeal and set aside the judgments and decrees of the Courts below, and the suit of the plaintiff-appellant is decreed against the defendant-re spondents with the observation that the plaintiff/appellant will not be ejected from the land in question except in due course of law. There will be no order as to costs.