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2002 DIGILAW 298 (HP)

Sarwan Dass v. Salam Jeet

2002-10-28

M.R.VERMA

body2002
JUDGMENT:- This second appeal arises out of the judgment and decree dated 9-8-1994 passed by the learned District Judge (Forests), Shimla in Civil Appeal No. 81/S/13 of 1992/89 whereby the judgment and decree dated 29-12-1988 passed by the learned Sub-Judge, Rohru in CS No. 132-1 of 1985 has been affirmed. 2. The facts leading to the presentation of this appeal are that the appellant/plaintiff (hereafter referred to as the plaintiff) instituted the suit against Uchhi (since deceased) and represented by his LRs - respondents Nos. 2, 3 and 4 and respondent/defendants Nos. 5 and 6 and one Bhag Singh earlier respondent No. 7 in the appeal and whose name has since been deleted (hereafter referred to as the defendants) for permanent prohibitory injunction restraining the defendants from interfering in any manner with the possession of the plaintiff over the land measuring 11-18 bighas comprising Khasra Nos. 14 and 26, Khata Khatauni No. 148 min/224, situate in Chuck Dali, Tehsil Chirgaon, District Shimla. Case of the plaintiff, as made out in the plaint, is that the suit land is in possession of the plaintiff for the last more than 25 years openly, peacefully and adversely. Deceased Uchhi has sworn in an affidavit on 1-1-1979 admitting possession of the plaintiff over land Khasra No. 14 for more than 16/17 years and the entries in the records showing Uchhi as the owner of the land are incorrect. On 7-4-1985 said Uchhi transferred land Khasra No. 26 in favour of defendant Keshav Ram by a sale deed which was a result of the connivance between Uchhi and defendant Keshav Ram whereas Uchhi has no right to transfer the said land being out of possession. Therefore, the said sale deed is illegal and void. After the execution and registration of the said sale deed, defendants Keshav Ram, Des Raj and Bhag Singh made their intentions clear to take forcible possession of the suit land and are adamant to enter upon the suit land on the basis of the said sale deed. Hence, the suit. 3. Defendant Uchhi in a separate written statement raised the preliminary objections that the plaintiff has no locus standi or cause of action to institute the suit, that the revenue entries are illegal and contrary to the factual position and the suit is barred by limitation. Hence, the suit. 3. Defendant Uchhi in a separate written statement raised the preliminary objections that the plaintiff has no locus standi or cause of action to institute the suit, that the revenue entries are illegal and contrary to the factual position and the suit is barred by limitation. On merits, it has been averred that the plaintiff is neither owner nor in possession of the suit land and the execution of the affidavit dated 1-1-1979 has been denied and it has been claimed that the plaintiff had tried to take undue advantage of old age and illiteracy of defendant Uchhi. The sale of land Khasra No. 26 has been claimed to be accordance with law and that by virtue of the sale, defendants Keshav Ram and Des Raj are the owners in possession of the suit land. 4. Defendants Keshav Ram, Des Raj and Bhag Singh in their separate written statement raised similar preliminary objections as were raised in the written statement of Uchhi and similar pleas have been taken on merits and claim of the plaintiff has been denied. 5. On the pleadings of the parties, the learned trial Judge framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land? OPP 2. Whether the suit is barred by limitation? OPD 3. Relief. 6. The trial Court vide its judgment dated 23-12-1988 decided Issue No. 1 in favour of the plaintiff qua Khasra No. 14 and Issue No. 2 was decided against the defendants and as a consequence the suit of the plaintiff was partly decreed for permanent injunction restraining the defendants from interfering with his possession over Khasra No. 14 and the rest of the prayer in the suit was dismissed. 7. Being aggrieved, plaintiff preferred an appeal which was dismissed by the lower appellate Court by the impugned judgment. Hence, this appeal. 8. I have heard the learned counsel for the parties and have also gone through the records. 9. This appeal has been admitted for hearing on the following substantial question of law: "Whether the learned Court below erred in law in ignoring the admission regarding possession by defendant No. 1 and whether there is misconstruction of the documentary and oral evidence by the Court below." 10. 9. This appeal has been admitted for hearing on the following substantial question of law: "Whether the learned Court below erred in law in ignoring the admission regarding possession by defendant No. 1 and whether there is misconstruction of the documentary and oral evidence by the Court below." 10. It is now not in dispute that the suit of the plaintiff in respect of the land Khasra No. 14 measuring 7-14 bighas has rightly been decreed. The dispute now relates only with respect to the land Khasra No. 26 measuring 4-4- bighas which according to the plaintiff is in his possession for the last about 26/27 years and he grows crops thereon and has also planted apple plants whereas according to the defendants the land Khasra No. 14 had never been in possession of the plaintiff but was under the cultivating possession of deceased defendant Uchhi who sold it to defendant Keshav Ram and put defendants Keshav Ram and Des Raj in possession and now said defendants are in possession of the said land. 11. The evidence led by the plaintiff to prove his claim regarding possession on Khasra No. 26, as alleged, consists of copy of Jamabandi for the year 1981-82 Ext. PA and statements of the plaintiff (PW-1), Sher Singh (PW-2) and Chungal Ram (PW-3) whereas the rebuttal evidence led by the defendants to prove that the plaintiff had never been in possession of the land in question but it remained in the possession of Uchhi and after he sold it to defendant Keshav Ram, the latter is in possession thereof consists of the sale deed Ext. DW-3/A and the statements of Uchhi (DW-1), Bhag Singh (DW-2), Roshan Lal (DW-3) and Surmu Mal (DW-4). 12. While appreciating the aforesaid evidence qua Khasra No. 26 the trial Court in its judgment observed as under : "In the jamabandi at Ex. PA the plaintiff though has been recorded in possession as Gairmorusi in respect of the entire suit land but it would appear from column No. 10 that this tenancy is qua Khasra No. 14 only, meaning thereby that insofar as Khasra No. 26 is concerned the documents as well as the entries in the jamabandi record are not in favour of the plaintiff. As for the oral evidence of the plaintiff is concerned, may be that the PWs have stated about the possession over the suit land of the plaintiff but in the statement of the witnesses Khasra Nos. are not specifically mentioned and in such a situation the suit land is to be inferred and read as Khasra No. 14 only and similarly the admission of deceased Uchhi in his statement as DW-1 is also to be read qua Khasra No. 14 only. When it is so the sale deed executed by deceased Uchhi in respect of Khasra No. 26 in favour of defendant No. 1 gains significance and Ex. PW-3/A sale deed which almost stands admitted by the defendants also shows that at the time of sale deceased Uchhi was in possession of the suit land as owner and that at the time of sale he handed over the possession to defendant No. 2 and deceased Uchhi being the owner was within his right to transfer this land to defendant No. 2. As far the contention of the learned counsel for the plaintiff that defendant No. 2 has not appeared in the witness box and thus an adverse inference be drawn against him under Section 114 of the Indian Evidence Act, I feel that it has no force keeping in view the facts and circumstances of the case when the evidence on record, as discussed above, is sufficient to show that plaintiff was not in possession Khasra No. 26 and that deceased Uchhi transferred this Khasra No. to defendant No. 2 and also delivered the possession to him. This being the case, the non-appearance of this defendant in the witness-box is not fatal. The ultimate conclusion follows that the plaintiff is held to be in possession of the suit land qua Khasra No. 14 only and insofar as Khasra No. 26 is concerned he is not in such possession." 13. The appellate Court below in its impugned judgment while dismissing the aforesaid evidence, observed as under : "In the revenue papers also the plaintiff is recorded as tenant at will over Khasra No. 14 and proprietary rights of the land comprised in this Khasra Number were conferred upon the plaintiff as borne out from the copy of the jamabandi for the year 1981-82 Ext. PA. PA. The deceased defendant Uchhi continued to be the owner in possession of land measuring 4.4 bighas and it is the land comprised in this khasra number which was sold by him in favour of defendant No. 2 vide registered sale deed the original of which is Ext. DW-3/A. The oral evidence of the plaintiff is of no assistance to him as his witnesses have not been able to state distinctly and separately qua the two Khasra numbers. On the contrary they made a general statement regarding possession of the plaintiff. From the evidence of the defendants as well as the above referred documentary evidence it stands amply proved that the plaintiff has no right, title or interest over the land comprised in Khasra No. 26. He has also not succeeded in establishing his adverse possession over this Khasra Number. The sale deed by the deceased defendant No. 1 in favour of defendant No. 2 is proved to be perfectly valid and legal. There is no wrong appreciation of evidence, the lower Court has rightly decreed the suit of the plaintiff qua Khasra No. 14 and dismissed it qua Khasra No. 26. Such findings of the lower Court warrant no interference." 14. In view of the above quoted observations, both the Courts below recorded the concurrent findings that the plaintiff is not in possession of the land Khasra No. 26. 15. It is true that concurrent findings of fact recorded by the trial Court and the First Appellate Court are not interfered with in the second appeal simply on the ground that a contrary conclusion is possible. However, if such findings are not based on evidence and are perverse and has resulted in gross injustice, such findings deserve to be interfered with. 16. The latest copy of the Jamabandi pertaining to the land in question is at Ext. PA which shows that apart from the other suit land, land Khasra No. 26 was owned by Uchhi (DW-1) but is in cultivating possession of the plaintiff. Presumption of correctness is attached to the entries in Ext. PA. Such a presumption no doubt is not conclusive but is rebuttable. However, it can be rebutted only by cogent, consistent and trustworthy evidence. Stronger must be the rebuttal evidence if these entries are supported even by oral evidence. Presumption of correctness is attached to the entries in Ext. PA. Such a presumption no doubt is not conclusive but is rebuttable. However, it can be rebutted only by cogent, consistent and trustworthy evidence. Stronger must be the rebuttal evidence if these entries are supported even by oral evidence. There are consistent and trustworthy statements of PW-1, PW-2 and PW-3 which show that land Khasra No. 26 is in possession of the plaintiff for the last about 26/27 years and he grows crops and have also planted apple plants thereon. A perusal of their statements reveals that they have made these statements in respect of the land in suit which admittedly is Khasra Nos. 14 and 26. There is nothing in their statements to conclude that they have made their statement only in respect of Khasra No. 14 and not in respect of Khasra No. 26 which is also subject-matter of the Suit. Simply because they have not given the Khasra Numbers of the suit land and precise area thereof it could not be concluded that these statements pertain only to Khasra No. 14 and not to Khasra No. 26 as has been done by the trial Court. 17. The above discussed evidence of the plaintiff on record discharges the initial burden on the plaintiff to prove his possession over the suit land including Khasra No. 26. The burden to repel the weight of such evidence thus shifted on the defendants. 18. In so far as statements of DW-2, DW-3 and DW-4 are concerned, these do not relate or concern as to who is in actual possession of the land in question on the spot. DW-2 was present at the time of mutation attested in favour of Keshav Ram on the basis of the sale deed Ext. DW-3/A and the persons present on the spot had told the Naib Tehsildar that Keshav Ram had been put in possession. However, plaintiff was not one of such persons. DW-3 is the witness and DW-4 is the scribe of the sale deed Ext. DW-3/A wherein it has been mentioned that the possession of land Khasra No. 26 thereby sold had been delivered to defendant Keshav Ram. Evidently their statements cannot be said to mean that the possession of Khasra No. 26 was actually delivered on the spot to defendant No. 2. DW-3/A wherein it has been mentioned that the possession of land Khasra No. 26 thereby sold had been delivered to defendant Keshav Ram. Evidently their statements cannot be said to mean that the possession of Khasra No. 26 was actually delivered on the spot to defendant No. 2. Moreso, when in the written statement defendants aver that defendants Keshav Ram and Des Raj were put in possession of land Khasra No. 26. 19. In case the possession of land Khasra No. 26 was delivered to defendant Keshav Ram at the time of sale and he is now in possession thereof he was the best person to state about his possession. However, he has not been produced. The Court below having noticed this circumstance had ignored its effect on the case of the defendants. In fact for non-production of Keshav Ram an inference adverse to the plea of the defendants deserves to be drawn. 20. The sale deed has been executed by deceased Uchhi (DW 1) and it depends on the value and worth of his statement whether he was in fact in possession of land Khasra No. 26 and put defendant No. 2 in possession thereof at the time of the sale, as mentioned in the sale deed. DW 1 Uchhi has stated that the land in suit was earlier owned by him but was in the cultivating possession of the plaintiff and then stated that it was cultivated by Keshav Ram. He further goes on to state that he sold this land and now Keshav Ram the purchaser is in possession thereof. He has further stated that he has never handed over the possession of the suit land to the plaintiff. In the cross-examination while denying the suggestion that plaintiff is in possession of the land for the last 27/28 years, he admits that for the last 7/8 years the plaintiff is in forceful possession of the suit land. He further goes on to admit that at the time of his making the statement the plaintiff had grown china crop on the suit land. He further admits that the plaintiff had planted apple plants on this land which are now aged about 4/5 years. He has further admitted in his cross-examination that the possession of the plaintiff over the suit land is by virtue of "Dhusri" i.e. by use of force. He further admits that the plaintiff had planted apple plants on this land which are now aged about 4/5 years. He has further admitted in his cross-examination that the possession of the plaintiff over the suit land is by virtue of "Dhusri" i.e. by use of force. In view of all these admissions of DW 1 coupled with the evidence led by the plaintiff, the only conclusion which could be arrived at on the basis of the evidence on record is that the plaintiff is in possession of the suit land including Khasra No. 26 as a trespasser. The conclusions of the Courts below to the contrary are in fact not substantiated by any evidence on record but are based on whims and utter mis-reading of the material on record. These findings, which are not based on evidence even if concurrent, cannot be sustained. 21. The above discussion leads me to the conclusion that the plaintiff has proved that he is in possession of the suit land and has been planted apple plants thereon though Uchhi was the owner of the suit land and transferred his ownership rights therein favour of defendant Keshav Ram in but the land Khasra No. 26 remained and is in the cultivating possession of the plaintiff and the findings on Issue No. 2 to the contrary recorded by the Courts below on this count being perverse deserve to be set aside and are accordingly set aside. 22. The next question which arises for consideration is whether in view of the fact that defendant Keshav Ram has acquired the ownership rights in Khasra No. 26 by virtue of its sale in his favour by deceased defendant Uchhi whether injunction can be granted in favour of the plaintiff. In other words, whether to protect the possession of a trespasser an injunction can be granted against the true owner. 23. It was contended by the learned counsel for the plaintiff that keeping in view the long possession of the plaintiff on Khasra No. 26 his possession deserves to be protected against unlawful dispossession. On the other hand, it was contended by the learned counsel for the defendants that the plaintiff being a trespasser cannot maintain a suit for injunction against a true owner and is not entitled for protection of his illegal possession. 24. The relief of injunction is a discretionary relief. On the other hand, it was contended by the learned counsel for the defendants that the plaintiff being a trespasser cannot maintain a suit for injunction against a true owner and is not entitled for protection of his illegal possession. 24. The relief of injunction is a discretionary relief. Therefore, a party seeking such relief must show that it has some equities in its favour or possess some right which the other party is trying to invade or there is an obligation contractual or otherwise in its favour which the opposite party is trying to commit breach of. A trespasser has no equities in his favour nor is the owner of the property trespassed under obligation to submit to the acts of trespass committed by the wrong doer. An owner thus have every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property possession whereof has been taken by the other without any right or title. 25. In Premji Ratansey Shah v. Union of India (1994) 5 SCC 547, the Honble Supreme Court held as under : "4. ........... Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. 5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner." 26. In the case in hand, what is proved is the possession of the plaintiff over land Khasra No. 26 as a trespasser. Even as per the entries in Ext. In the case in hand, what is proved is the possession of the plaintiff over land Khasra No. 26 as a trespasser. Even as per the entries in Ext. PA he is not a tenant of the said land and he himself has not claimed to be a tenant. He has not even set up the plea of having acquired title to the land in question by virtue of adverse possession. Therefore, in view of the aforesaid position in law he is not entitled to the relief of permanent perpetual injunction in respect of land Khasra No. 26. Therefore, the impugned judgment and decree declining such a relief to the plaintiff do not call for any interference though for the aforesaid reasons different than the reasons assigned by the Courts below. 27. As a result, this appeal merits dismissal and is accordingly dismissed. Parties, however, are left to bear their own costs. Appeal dismissed.