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2000 DIGILAW 768 (PNJ)

Gurdip Singh v. Manmohan Singh

2000-07-20

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - By this judgment, I dispose of four civil revisions No. 2137 to 2140, of 1999, all titled Gurdip Singh and others v. Manmohan Singh and others, as common questions of law and facts are involved. It may also be mentioned here that separate applications claiming similar relief were also disposed of by the Additional District Judge, Ludhiana, vide the impugned order dated 1.9.1998. The present four revisions are against the order dated 1.9.1998 passed by the Additional District Judge, Ludhiana, who dismissed the appeal of the present petitioners Gurdip Singh, Prabhjot Singh and Jagjit Singh filed under Order 43, C.P.C., by affirming the order dated 5.2.1998 passed by the Civil Judge (Junior Division), Ludhiana, who allowed the application of the plaintiff Manmohan Singh under Order 39 Rules 1 and 2, C.P.C., and directions were given to the present petitioners not to dispossess him from the suit land except in due course of law. 2. For the purposes of facts, I have taken the same from C.R. 2137 of 1999. 3. Manmohan Singh filed a civil suit for permanent injunction against Gurdip Singh and others restraining them from taking forcible possession of the land as detailed in the head note of the plaint, situated in the area of Jamalpur Awana on the averment that he is father of Kuljit Singh and Gurmeet Kaur, defendants 4 and 5, respectively, and husband of Kamaljit Kaur, defendant No. 6. He was the owner of the land. He was recorded in possession of the same. The area involved is 60 kanals 10 marlas. He gave land measuring 19 kanals 12 marlas bearing khasra Nos. 24/2, 25, 63/10 to Bachittar Singh son of Avtar Singh for cultivation. It is averred that entries in the jamabandi relating to the land measuring 20 kanals comprised in khasra No. 60/24/2, 25 and 78/18 were changed in the name of Kamaljit Kaur defendant No. 6 in the jamabandi for the year 1981-82. Similarly, the land measuring 20 kanals 7 marlas bearing khasra Nos. 64/4/2, 5 and 78/24 was recorded in the name of Gurmeet Singh, defendant No. 5 and the land measuring 39 kanals 15 marlas bearing khasra Nos. 63/10, 64/4, 7/1, 14/1/2, 15/1/2, 18 and 78/23 was recorded in the name of Kuljit Singh, defendant No. 4, in the entry of jamabandi for the year 1981-82. 64/4/2, 5 and 78/24 was recorded in the name of Gurmeet Singh, defendant No. 5 and the land measuring 39 kanals 15 marlas bearing khasra Nos. 63/10, 64/4, 7/1, 14/1/2, 15/1/2, 18 and 78/23 was recorded in the name of Kuljit Singh, defendant No. 4, in the entry of jamabandi for the year 1981-82. These entries are wrong and the error was again repeated in the jamabandi for the year 1986-87. Kamaljit Kaur, Gurdip Singh and Kuljit Singh never came into possession of the suit land. A tube-well was installed on the border of killa Nos. 23 and 24 and the electric connection is in the name of his brother Onkar Singh, bearing account No. AP/483. The electricity bills are paid by him and Onkar Singh and the underground pipes had been laid by the Soil Conservation Department for irrigation purposes. He is in undisputed and undisturbed possession of the suit land. It is alleged by the plaintiff that defendants No. 1 to 3 claimed that the defendant No. 4 to 6 have sold the land in their favour vide sale deeds dated 11.8.1995, 14.8.1995 and 13.9.1995. According to the plaintiff, these sale deeds are not binding upon him and do not affect his rights. The sale deeds are illegal and void. 4. Along with the suit, the plaintiff also filed an application under Order 39 Rules 1 and 2, CPC, for grant of temporary injunction restraining the defendants from interfering in his possession till the disposal of the suit. 5. Notice of the suit was given to the defendants. Defendants 1 to 3 filed a joint written statement and they controvert the allegations of the plaint. They denied that the plaintiff is in possession of the land in question. However, it was admitted by these defendants that the plaintiff was the owner of the land in question and he transferred the land measuring 20 kanals bearing killa Nos. 24/2, 25 and Rectangle No. 78, killa No. 18 in the name of Kamaljit Kaur; land measuring 20 kanals 7 marlas bearing rect. No. 64, killa Nos. 6/2, 5 and rect. No. 78, killa No. 24 in the name of Gurmeet Kaur and the remaining land measuring 39 kanals 5 marlas in the name of Kuljit Singh and delivered the possession to them. Accordingly, the entries were made in the revenue record which were correct. No. 64, killa Nos. 6/2, 5 and rect. No. 78, killa No. 24 in the name of Gurmeet Kaur and the remaining land measuring 39 kanals 5 marlas in the name of Kuljit Singh and delivered the possession to them. Accordingly, the entries were made in the revenue record which were correct. Defendants 4 to 6 sold the land to them vide three different sale deeds and put them in possession thereof. They are in possession of the land in question. Further objection was taken that the plaintiff does not claim any right, title or interest in the property in suit and thus has no right to file the suit for permanent injunction. The plaintiff has challenged the sale deeds but no ground has been given in the plaint and the plaintiff has also not prayed for the correction of entries in the jamabandi. On the same averments, these defendants have filed Civil Suits No. 515 of 18.9.1997, 514 of 18.9.1997 and 513 of 18.9.1997 for permanent injunction restraining Manmohan Singh from interfering in their possession over the land in question. 6. A separate and joint written statement was also filed on behalf of defendants 4 to 6 and they denied the allegations of the plaintiff and stated that the plaintiff was not in possession of the land in question. The land has been transferred by the plaintiff and they were correctly recorded as owners in possession in the revenue record. They have sold the land to defendants 1 to 3. 7. Separate reply was also filed by the defendants to the application under Order 39 Rules 1 and 2, CPC, and they pleaded that the plaintiff has no prima facie case to succeed nor the balance of convenience is in his favour. 8. In support of their case, the parties also placed on record some documents and the learned trial Court, for the reasons given in para-5 of the order dated 5.2.1998, prima facie, came to the conclusion that the plaintiff is in possession of the property and that the defendants never came into possession of the same. Therefore, the application of the plaintiff was allowed while the applications of the defendants were dismissed and the defendants in the suit filed by the plaintiff were restrained from dispossessing him out of the suit land forcibly, except in due course of law. Therefore, the application of the plaintiff was allowed while the applications of the defendants were dismissed and the defendants in the suit filed by the plaintiff were restrained from dispossessing him out of the suit land forcibly, except in due course of law. The reasons given by the trial Court in para-5 of the order, read as under :- "5. I have considered the submissions of both the sides. The contention of learned Counsel for the defendants that the defendants No. 1 to 3 are in possession of the property in dispute on the basis of valid sale deeds executed by defendant No. 4 to 6, who were in possession of the property in dispute, is not tenable because the plaintiff has produced abundant documentary evidence on the file that he has been in possession of the property in dispute for the last 30 years. As per the latest jamabandi and khasra girdawari, the plaintiff is in possession of the property in dispute. As per the report of the A.C. IInd Grade, Ludhiana, dated 29.11.1996, report date 2.9.1997 of A.C. IInd, Ludhiana, it has been held by the said revenue officers that the plaintiff is in possession of the property in dispute. Moreover, the revenue officers have refused to sanction the mutations in favour of the defendants No. 1 to 3 on the basis of alleged sale deeds executed by defendants No. 4 to 6, in their favour, vide orders dated 25.4.1997 on the grounds that the defendants were not in possession of the property in dispute. Even Kamaljit Kaur, from whom the defendants No. 1 to 3 claim to have purchased the land in dispute, had appeared as witness in the court of Metropolitan Magistrate, Bombay in proceedings under Section 125 Criminal Procedure Code wherein she had stated in her statement on oath on 10.7.1984 that all the land is in possession of the plaintiff. This shows that the defendant Kamaljit Kaur never remained in possession of the land. Since, she was not in possession of the land in question, how could she transfer the same in favour of the defendants No. 1 to 3. The plaintiff has placed on file the receipt of payment issued by the Soil Conservation Department for installation of underground pipeline for irrigating the land. The plaintiff has also produced the map showing the irrigation system of the suit lands. The plaintiff has placed on file the receipt of payment issued by the Soil Conservation Department for installation of underground pipeline for irrigating the land. The plaintiff has also produced the map showing the irrigation system of the suit lands. The plaintiff has also placed on file the passbook of the electric connection got installed in the suit land in the name of Onkar Singh. The defendants have not produced any document on the file to rebut the documentary evidence of the plaintiff. The defendants have not produced any document on the file to prove their possession over the suit land. Even if the defendants, for the sake of arguments are presumed to be the owners of the land in dispute, even then they have no right to dispossess the plaintiff out of the suit land forcibly and illegally. It has been laid down by our own Honble High Court in 1992 PLJ page 268 that once a person found to be in possession in whatever capacity entitled to its enjoyment, cannot be dispossessed except in due course of law. In the present case, as per the report dated 19.9.1997, an independent enquiry by the S.D.M. (East), Ludhiana, on the directions of District Collector, Ludhiana, has noted that the plaintiff Manmohan Singh and his brother Onkar Singh are in possession of the lands in dispute, from a longer period. Even, the khasra girdawari has since been corrected in the name of Manmohan Singh on 4.9.1997. As regards the order dated 9.1.1998 passed by the S.D.M. Ludhiana remanding the case of correction of khasra girdawari from Rabi, 1996 onwards in favour of Manmohan Singh is concerned, it may simply be noted that the operation of the impugned order dated 9.1.1998 has been stayed by the Commissioner, Patiala Division, Patiala, vide his order dated 14.1.1998. Moreover, it has also come in the reports of the revenue officers that the plaintiff and his brother Onkar Singh are in the possession of the lands in dispute, but the opposite party i.e. the present defendants are trying to take forcible possession of the lands in suit. In view of my above discussion, it would appear that the plaintiff is in possession of the suit lands from a longer period and the defendants never came in possession of the same. In view of my above discussion, it would appear that the plaintiff is in possession of the suit lands from a longer period and the defendants never came in possession of the same. Thus, from a perusal of abundant documentary evidence produced by the plaintiff and the ratio of the authority reported in 1992-PLJ-page 268 (supra), a prima facie case is made out in favour of the plaintiff and balance of convenience also lies in his favour. If the defendants succeed in their evil design, the plaintiff will suffer an irreparable loss. Therefore, the application is allowed and the defendants are restrained from dispossessing the plaintiff out of the suit lands forcibly and illegally except in due course of law till disposal of the suit." 9. Aggrieved by the order of the learned trial Court, the defendants filed separate appeals before the Additional District Judge and all the appeals were dismissed vide the impugned order dated 1.9.1998 and the order of the trial Court was affirmed for the reasons given in paras 13 to 16 of the order, which read as under :- "13. The first question to be seen is whether Manmohan Singh, respondent or appellants are in possession of the land in suit. In the entries of the jamabandi for the year 1976-77, Manmohan Singh, respondent is recorded to be the owner in possession of the land in suit. There is an entry in column No. 12 of the said jamabandi regarding the change of ownership in favour of Kamaljit Kaur, Gurmeet Kaur and Kuljit Singh. In the entries of the jamabandi for the year 1981-82, Kamaljit Kaur, Gurmeet Kaur and Kuljit Singh are recorded to be the owners in possession of 20 kanals 7 marlas and 39 kanals 15 marlas of land respectively. Similar entries appear in the jamabandi for the year 1986-87. Said Kamaljit Kaur and others sold the land in suit to the appellants vide separate sale deeds, the photo copies of which are on the file and there is recital that possession has been delivered to the vendees. Presumption of correctness is attached to the entire in the jamabandi which is rebuttable. Kamaljit Kaur and others in the written statement pleaded that Manmohan Singh, respondent/plaintiff transferred the land in their favour but did not plead how the said land was transfered in their names. Presumption of correctness is attached to the entire in the jamabandi which is rebuttable. Kamaljit Kaur and others in the written statement pleaded that Manmohan Singh, respondent/plaintiff transferred the land in their favour but did not plead how the said land was transfered in their names. It is stated that the land was transferred on the basis of decrees and respondent Manmohan Singh has alleged in the replication that the decrees were collusive which are inadmissible in evidence for want of stamps and registration. Again, no copy of the judgment or decrees have been placed on the file to show that Kamaljit Kaur and others actually acquired the rights in the land in suit and possession was delivered to them. Kamaljit Kaur was not delivered the possession of the land which was transferred in her name and the same is very much clear from the entries in the Khasra Girdawari from Kharif 1992 to Rabi 1996, in which, Manmohan Singh respondent is recorded in possession thereof. The entries in the khasra girdawaries regarding remaining land were corrected from Kharif 1996 in favour of Manmohan Singh, respondent. Copy of the order dated 9.1.1998 shows that Asstt. Collector Ist Grade, remanded the case for the correction of khasra girdawari and the operation of the said order, as admitted, has been stayed by the Commissioner Patiala Division, Patiala vide his order dated 14.1.1998. Appellants applied for the sanction of mutation on the basis of the sale deeds and the same was rejected by the Asstt. Collector Ist Grade vide his order dated 25.4.1997 and he has clearly mentioned in his orders that the possession of the land in suit was not transferred in favour of vendees. Again, Sub Divisional Magistrate, Ludhiana, inspected the land in suit on the direction of the Deputy Commissioner, Ludhiana and vide his report dated 19.9.1997, opined that the land in suit is in possession of Manmohan Singh and Onkar Singh. Order dated 25.4.1997 passed by the Asstt. Collector Ist Grade, Ludhiana, entries in the khasra girdawaries and the report of Sub Divisional Magistrate, Ludhiana, dated 19.9.1997, prima facie prove that Manmohan Singh, respondent, is in possession of the land in suit and the learned lower Court has rightly relying on the said documents held that appellants are not proved to be in possession of the land in suit. The learned Counsel for the appellants placed reliance on Gurcharan Singh v. District/Chief Agricultural Officer, Jalandhar, 1996(3) P.L.R. 573 : (sic) Civil Court Cases 201, Mirza Mohammad Yousuf Baig v. M/s. Deccan Enterprises, Bangalore and others, reported in 1997 (Suppl.) Civil Court Cases 276, to argue that a person having no interest or right in the property, is not entitled to injunction. There is no dispute about the proposition of law that a person seeking injunction must establish legal right and then show actual and threatened invasion of that legal right and a person failing to prove his right, is not entitled for the injunction. Plaintiff has averred in the plaint, that he was the owner of the land in suit which was subsequently shown in the jamabandi for the years 1981-82 and 1986-87 in the name of Kamaljit Kaur and others erroneously and in the replication has pleaded that he is still the owner of the land in suit. Thus, Manmohan Singh, respondent, claim the land in suit to be owned by him and he is prima facie proved in possession of the land in suit and considering the averments in the pleading, it cannot be said that he has no right to protect. 14. A perusal of the photocopy of the power of attorney shows that Manmohan Singh authorised Onkar Singh to manage his properties and as stated above, it cannot be said at this stage in that the present suit was filed relating to the land owned by the appellants and thus, the suit is properly instituted. 15. It was argued that appellants have become the owners of the land in suit on the basis of the sale deeds and no injunction can be issued against the true owner. Validity of the sale deeds executed in favour of the appellants is still to be seen and at this stage, the possession of Manmohan Singh, respondent cannot be termed as that of trespasser or illegal. Here, it was also urged that the sale deeds were executed by the wife, son and daughter of Manmohan Singh for a huge amount and it cannot be said that the amount was paid without taking possession of the land in suit. Here, it was also urged that the sale deeds were executed by the wife, son and daughter of Manmohan Singh for a huge amount and it cannot be said that the amount was paid without taking possession of the land in suit. As stated earlier, the documents placed on the file do not prima facie prove the possession of the appellants over the land in suit and rather show Manmohan Singh respondent, to be in possession of the land in suit and simply on the basis of the sale consideration, it cannot be held that appellants are in possession of the land in suit. 16. Resultantly, the appellants are not prima facie proved to be in possession of the land in suit and balance of convenience also does not lie in their favour and it cannot be said that the findings as recorded by the trial Court on the issue of prima facie case, balance of convenience and irreparable injury are perverse and the same do not call for any interference and, therefore, the impugned orders are upheld and the appeals preferred by the appellants are hereby dismissed with costs." 10. It may be mentioned here that the first appellate court also stated that the possession of the land in question always, prima facie, remained with the plaintiff and his brother Onkar Singh and the same was never delivered to defendants 4 to 6 and, as such, they could not deliver it to defendants 1 to 3. 11. In this manner, the present revision, which I am disposing of with the assistance of the counsel for the parties and with their assistance have gone through the record of this case. 12. Counsel for the petitioner took a lot of pains to convince me that both the courts fell in error in appreciating the real facts. According to the counsel for the petitioners, the discussion of the first appellate Court was throughout in favour of the petitioner but, finally, the decision has gone against them. He submitted that the revenue entries which have been relied upon by the courts below have been set aside by the revenue authorities in the revisional jurisdiction and the matter has again been remanded to the Assistant Collector with regard to possession. He submitted that the revenue entries which have been relied upon by the courts below have been set aside by the revenue authorities in the revisional jurisdiction and the matter has again been remanded to the Assistant Collector with regard to possession. The petitioners have paid a huge amount to the defendants 4 to 6 and every reasonable presumption has to be drawn that the possession of the land was delivered to the present petitioners, i.e. defendants 1 to 3. Counsel for the petitioners also submitted that at the spot the farm house of the petitioners is located, which has been constructed by spending a huge amount. The assistance of some of the photographs, Annexures P-1 to P-16, has also been taken to show, prima facie, that the petitioners are in possession of the property and that they are in possession of the property and that Manmohan Singh has no right, title or interest, much less possession over the land in question. 13. On the contrary, for the respondents submitted that both the courts have rightly come to the conclusion that the plaintiff Manmohan Singh is in established possession of the property. He never delivered the possession to defendants 4 to 6, out of which, two defendants never resided in the village. They were residing in Bombay. The documents of sale in favour of defendants 1 to 3 are under challenge and, in these circumstances, the jurisdiction which has been exercised properly by the courts below, should not be interfered by the High Court. 14. After considering the rival contentions of the parties, I am of the considered opinion that all the four revisions are liable to be dismissed, there being no force in them. 15. It is the admitted case of the parties that the land belongs to the plaintiff and in the earlier revenue entries of 1976-77, this man has been recorded as owner and in possession of the property. The case set up by defendants 4 to 6 was that the plaintiff had transferred the land in their favour but there is nothing on the record to show that how this land was transferred in their names. The case set up by defendants 4 to 6 was that the plaintiff had transferred the land in their favour but there is nothing on the record to show that how this land was transferred in their names. Now, the case which has been built up is that this land has been transferred on the basis of decrees suffered by Manmohan Singh but Manmohan Singh has challenged these decrees on the plea that these are collusive and they are inadmissible for want of stamp and registration. In this view of the matter, it can be safely inferred at this juncture that defendants 4 to 6 have no, prima facie, basis to show under what circumstances they got the property in question. It has been rightly observed by the first appellate court that no copy of the judgment or decree has been placed on the file to show that defendants 4 to 6 actually acquired the rights in the suit land and that the possession was delivered to them. Even in the khasra girdawari entries for the years 1992 to 1996, the possession of the plaintiff has been recorded. If, the land had actually been transferred to defendants 4 to 6, then, in that eventuality, the possession of the plaintiff could not have been recorded in the subsequent khasra girdawaris running from the year 1992 to 1996. 16. With regard to the jamabandis for the years 1981-82 and 1986-87, in which the names of defendants 4 to 6 are recorded, a challenge has been given by the plaintiff about the correctness of these entries. When there is a conflict between the old and new jamabandis, the presumption of law is that more importance should be given to the previous jamabandi unless it is shown that the new jamabandi has been entered on the basis of some valid documents. 17. With regard to the khasra girdawaris in favour of the plaintiff, no doubt, a challenge has been given by the vendees but there is no order in their favour to show that on the date of the institution of the suit, they were in established possession. Further, the vendees applied for the sanction of mutation on the basis of the sale deeds and the same was rejected by the collect Ist Grade on 25.4.1997 holding that the possession of the land in suit was never transferred in favour of the vendees. Further, the vendees applied for the sanction of mutation on the basis of the sale deeds and the same was rejected by the collect Ist Grade on 25.4.1997 holding that the possession of the land in suit was never transferred in favour of the vendees. The things do not rest here. The S.D.M., Ludhiana, inspected the land in question on the directions of the District Collector, on 19.9.1997 and he came to the prima facie conclusion that the land in suit is in actual physical possession of Manmohan Singh and Onkar Singh. Counsel for the petitioners has not given any reason why the inspection note of the S.D.M., who went to the spot, should be disbelieved. 18. Faced with this difficulty, counsel for the petitioners submitted that in the said deeds, there is a clear recital about the delivery of the possession in favour of the petitioners. 19. This argument cannot be accepted. When, prima facie, it is not established that the wife, son and daughter of Manmohan Singh got the possession under a decree, how they can further part the possession in favour of the vendees. 20. I have also seen the photographs relied upon by the petitioners. There is no indication that any farm house is in existence. An inference can be drawn that some construction is going on in the shape of small kothas or some persons were standing in a parcel of some land. From the photographs, I have been able to get an impression that, perhaps, the petitioners wanted to take forcible possession on the strength of the sale deeds whose validity is still to be adjudicated by the courts below. It is a basic principle of law that while disposing of an application under Order 39 Rules 1 and 2, CPC, it has to be seen whether the litigant who seeks the interim relief has a prima facie case to succeed or not. Once the possession of the plaintiff over the land in question is established, the balance of convenience will automatically go in his favour and he will suffer an irreparable injury if the injunction is not granted in his favour. 21. Counsel for the respondent has invited my attention to various photographs to show that the plaintiff and his attorney are cultivating the land with the help of tractors. 21. Counsel for the respondent has invited my attention to various photographs to show that the plaintiff and his attorney are cultivating the land with the help of tractors. Be that as it may, I am of the prima facie opinion that there is no illegality or irregularity or error of jurisdiction on the part of the courts below when the application of the plaintiff Manmohan Singh in his suit was allowed and when the relief prayed by the vendees in their suits was dismissed. 22. Lastly, it was submitted by the counsel for the petitioners that at least, it is a fit case where status quo order should be granted. 23. I have examined this argument in depth. In view of the peculiar facts and circumstance of the case, I am of the opinion that status quo order with regard to possession will create and lead to more problems then to solve the same. The petitioners, according to their own case, have paid huge amounts to defendants 4 to 6. Under the garb of status quo order, they might exploit the same and try to get forcible possession from Manmohan Singh who is an old man as it appears from the photographs placed on the record. 24. It was also submitted by the counsel for the petitioners that disputed question of possession has been raised and the civil Court should not have granted stay. 25. So far as the proposition of law is concerned, there is no dispute about it as it was also observed in Chacko Kuncheria v. Govt. of Travancore-Cochin State and others, AIR (38) 1951 Travancore-Cochin 221, but the said observations of the High Court may not be applicable to the present case, keeping in view the fact that in the revenue record starting from 1976, the possession of Manmohan Singh has been shown. 26. Resultantly, this revision is totally devoid of any merit and the same is hereby dismissed with no order as to costs. 27. The observations made in this order shall confine only to this order and shall not have any bearing on the merits of the case. Revision dismissed.