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2001 DIGILAW 972 (PNJ)

Sat Pal Singh v. Kesar Singh

2001-09-04

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. - This is defendants appeal which has been directed against the judgment and decree dated 17.5.1980 passed by the Additional District Judge, Gurdaspur, who affirmed the judgment and decree of the Court of Sub Judge Ist Class, Pathankot who decreed the suit of the plaintiff-respondent for permanent injunction. 2. The brief facts of the case are that Shri Kesar Singh plaintiff-respondent filed a suit for permanent injunction against Shri Sat Pal Singh and Uttam Singh sons of Shri Sadhu Singh praying that the defendants be restrained permanently from interfering in any manner in his peaceful possession over the land comprised in khewat No. 13 Khatauni No. 81, Khasra Rectangle No. 10, Killa Nos. 16, 17, Rect. No. 22, Killa. Nos. 4, 5, 1, 7, 9, 14/1 measuring 34 kanals 5 marlas situated in village Janial Tehsil Pathankot and the case set up by the plaintiff-respondent in the trial Court was that he is in possession of the suit land as tenant since long. He was earlier cultivating about 105 kanals of land jointly with Rur Singh and Sadhu Singh but subsequently, the land was partitioned and the suit land fell to his share and since the date of partition, he is cultivating the same in the capacity of a tenant. The defendants have no right, title or interest in the said land but they have threatened to interfere in the possession of the plaintiff. Hence the suit. Notice of the suit was given to the defendants who contested the same and denied the allegations. According to the respondents they are in possession of 11 kanals 2 marlas of land out of this khasra number as tenants. 3. On the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is in possession of the suit land as tenant ? OPP. 2. Whether plaintiff is entitled to injurious prayed for? 3. Relief. 4. Both the parties were given opportunities to lead their evidence and on the conclusion of the proceedings the trial Court decided issue Nos. 1, 2 and 3 in favour of the plaintiff-respondent and resultantly, the suit of the plaintiff was decreed. The reasons for decreeing the suit are contained in para Nos. 6 and 7 of the judgment of the trial Court, which are reproduced as under : "6. 1, 2 and 3 in favour of the plaintiff-respondent and resultantly, the suit of the plaintiff was decreed. The reasons for decreeing the suit are contained in para Nos. 6 and 7 of the judgment of the trial Court, which are reproduced as under : "6. To prove his tenancy over the suit land, the plaintiff has adduced oral as well as documentary evidence. He himself in his statement as P.W.1 has reiterated all the facts as alleged in the plaint and has testified that he is in possession of the suit as tenant. He has no doubt also stated that out of the entire suit measuring 34 kanals 5 marlas, 18 kanals of land has been allotted to him by the Govt., but no allotment order has been produced by him and as such this part of his testimony cannot be accepted. But his testimony regarding his possession over the suit and as tenant finds full corroboration from the revenue record. Admittedly, originally he was in joint cultivation of the suit and some other land total measuring 105 kanals as tenant along with Rur Singh and Sahdu Singh as is evident from copies of jamabandi Exhibits P-1 and P-2 for the years 1962-63 and 1967-68. But subsequently, as admitted even by the defendant himself in his statement as D.W.4 the entire holding under tenancy was partitioned amongst the co-tenants in equal shares. The perusal of copy of jamabandi Exhibit P-4 for the year 1972-73 shows that the suit land fell to the share of the plaintiff as he alone is recorded in possession of the same as tenant. Undisputedly, presumption of truth attaches to the jamabandi entries under Section 44 of the Land Revenue Act and as such entires in this jamabandi have to be presumed to be correct. These very entries are carried forward and incorporated in copy of Khasra Girdawari Ex.P-5 for the crops Kharif 1974 to Rabi 1978. Thus possession of plaintiff over the suit land as tenant stands amply proved. 7. The plea taken up by the defendants that out of the entire suit land 34 kanals 5 marlas, they are in possession of 11 kanals 2 marlas and have constructed hut over the same cannot at all be accepted for want of any cogent and convincing evidence to substantiate the same. 7. The plea taken up by the defendants that out of the entire suit land 34 kanals 5 marlas, they are in possession of 11 kanals 2 marlas and have constructed hut over the same cannot at all be accepted for want of any cogent and convincing evidence to substantiate the same. The evidence of Puran Singh (D.W.1) and Shankar singh D.W. 30 that 11 kanals of land out of the suit land is in possession of the defendants and they have planted orchard over it besides constructing a hut, is very vague and general and does not inspire any confidence. They have not disclosed the year in which the defendants planted orchard and constructed hut over the land. Kuldip singh (D.W.2) who is son and attorney of his father Kharak Singh owner of the suit land has no doubt stated that defendants are in possession of 11 kanals land out of the suit land as tenants, but his testimony cannot be accepted as a gospel truth. He has admitted that originally plaintiff along with Sadhu Singh and Kesar Singh had been cultivating the entire holding measuring 105 kanals as tenant under his father. He has also admitted that after partition of the holding, the plaintiff is in possession of the land which fell to his share. No document has been produced by the defendants evidencing their possession over 11 kanals of land out of the entire suit land. The hut alleged to have been constructed by them in the land falls in Khasra No. 22/4 min which is recorded in possession of plaintiff alone, in copy of jamabandi Ex.P4 for the year 1972-73 and copy of khasra girdawari Ex.P-5. Therefore, their possession over any part of the suit land as tenants does not at all stand established. In view of the discussion made above, issue is decided in favour of the plaintiff." 5. Aggrieved by the judgment and decree of the trial Court the defendants filed the first appeal before the Court the Additional District Judge, Gurdaspur, who dismissed the appeal of the defendants for the reasons given in para Nos. 5 and 6 of the impugned judgment, which are reproduced as under : "5. The respondent deposed at the trial that in the partition that had taken place between him and his two said brothers, the area in dispute had fallen to his lot. 5 and 6 of the impugned judgment, which are reproduced as under : "5. The respondent deposed at the trial that in the partition that had taken place between him and his two said brothers, the area in dispute had fallen to his lot. The factum of partition is not in dispute. Till the year 1967-68, the three brothers were cultivating the entire land measuring 105 kanals jointly. This is evident from Jamabandis Ex.P-1 for the year 1962-63 and Ex.P.2 for the year 1967-68, Jamabandi Ex.P4 for the year 1972-73 records the respondents, exclusive possession on the disputed area. The Girdawari entries from Kharif 1974 to Rabi 1978 vide Exhibit P-5 also represent the same state of affairs. The entries in the revenue documents leave no doubt that what had fallen to the lot of the respondent in the course of partition, which was admittedly effected, is area which in dispute. That alone is the reason that it was incorporated in the Jamabandi and the khasra girdawari entries were also in the same lines. The appellants examined Puran Singh (D.W. 1), Kuldip Singh (D.W.2) and Shankar Singh (D.W.3) to state that it is the appellants who were in possession of area measuring 11 kanals 2 marlas on which they had a hut besides fruit trees. I am afraid keeping in view the consistent entries in the revenue record supporting the possession of the respondent, the presumption of correctness which attached to the entries cannot be held to have been destroyed. 6. The learned counsel for the appellants contended that the appellants had made application dated 19.3.1979 for the appointment of a Local Commissioner to go and verify about the existence of the hut and the fruit trees but the trial Court did not pass any order on it. We have the application and the respondents reply thereto on the record. Indeed, no order was passed by the trial Court but it appears to me that the application was perhaps not pressed to the logical end". 6. Still not satisfied with the judgment and decree of the first appellate Court, the present appeal. I have heard Shri R.L. Gupta on behalf of the appellants and Shri Hemant Sarin on behalf of the respondent and with their assistance, have gone through the record of the case and am of the opinion that this appeal has no merit and it should be dismissed. I have heard Shri R.L. Gupta on behalf of the appellants and Shri Hemant Sarin on behalf of the respondent and with their assistance, have gone through the record of the case and am of the opinion that this appeal has no merit and it should be dismissed. 7. The admitted facts are that the land measuring 105 kanals was in the joint tenancy of the plaintiff and his two brothers Sadhu Singh (father of the appellants) and Rur Singh. It is also not disputed that the brothers inter se partitioned the said land measuring 105 kanals and each brother started cultivating exclusive area that fell to their share. The grouse of the learned counsel for the appellants is that the defendants/appellants are in possession of the land measuring 11 kanals 2 marlas forming part of Khasra Nos. 4, 7 and 14/1 of the Rectangle No. 22/2 and, therefore, the plaintiff could not be granted injunction with respect to the suit land. On the contrary, the learned counsel for the respondent-plaintiff submitted that in pursuance of the order partition effected between the tenants of the land measuring 34 kanals 5 marlas subject-matter of the suit and fully described in the head note of the plaint, fell to the share of the plaintiff. The defendants also got their 1/3rd share out of the land measuring 105 kanals, but they want additional land measuring 11 kanals 2 marlas out of the land which fell to the share of the plaintiff on partition. 8. I subscribe to the arguments raised by the learned counsel for the respondents. The factum of partition has been admitted even by the defendant when he appeared as D.W.4 in the trial Court. It has also been admitted by the defendant that the land measuring 34 kanals 5 marlas fell to the share of the plaintiff. The defendants have not brought any evidence to show that Khasra Nos. 4, 7 and 14/1 of Rectangle No. 22 had fallen to their share. In fact, the defendants have not led any evidence to show the khasra number which fell to their share. The defendants have not brought any evidence to show that Khasra Nos. 4, 7 and 14/1 of Rectangle No. 22 had fallen to their share. In fact, the defendants have not led any evidence to show the khasra number which fell to their share. In these circumstances, now I will have to refer to the documentary evidence which prima facie establishes that partition took place between the parties and by virtue of the partition, the suit land measuring 34 kanals 5 marlas came to the share of the plaintiff and he is entitled to the same. Exhibit P-1 is the jamabandi for the year 1962-63. In the column of cultivation Sarvshri Rur Singh, Sadhu Singh and Kesar Singh have been shown as tenants in common under one Kharak Singh son of Jaimal Singh. Similar is the position reflected in the jamabandi for the year 1967-68. However, it appears that the land measuring 18 kanals 15 marlas of Rectangle No. 22 Khasra Nos. 5/1, 7, 9, 14 was allotted to Shri Kesar Singh being surplus land. Later this allotment of surplus land was cancelled. Nevertheless, through document Exhibit P-4 jamabandi for the year 1972-73 it stands proved on record that the land measuring 34 kanals 5 marlas, that is the suit land, was exclusively in possession of Shri Kesar son of Gopi Chand in the capacity of a tenant. Jamabandi for the year 1972-73 prima facie shows that the names of Shri Rur Singh and Sadhu Singh had been excluded because they were given separate khasra number of the land which fell to their share in the capacity of a tenant. These very entries are carried forward and incorporated in the khasra girdawaris starting from Kharif 1974 to Rabi 1978. Meaning thereby that the possession of Shri Kesar Singh remained with regard to the suit land in the capacity of a tenant. At no point of time it is established that the defendants are in possession of Khasra Nos. 4, 7, 14/1 of Rectangle No. 22. In these circumstances it is not open to the defendants to say that they are still the tenants in common with regard to the land measuring 11 kanals 2 marlas. This position has been clearly depicted by the courts below. 9. Resultnaly, there is no merit in this appeal and the same is hereby dismissed with no order as to costs. Appeal dismissed.