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2004 DIGILAW 17 (PNJ)

Inder Singh v. Gurdev Singh

2004-01-07

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This Regular Second Appeal has been filed by the plaintiffs against the judgments and decrees of the Courts below, whereby the suit filed by the plaintiffs was dismissed by the Trial Court and the appeal filed by them was also dismissed by the learned Additional District Judge. 2. Facts in brief are that the plaintiffs had filed a suit for permanent injunction against the defendants restraining them from taking forcible possession of the property in dispute measuring 4 kanals 18 marlas from the plaintiffs. It was alleged that the plaintiffs were proprietors of the village and that the residents of the village were in possession of the suit property since the time of their ancestors. It was further alleged that the defendants had no connection, whatsoever with the suit land but they forcibly wanted to dispossess the plaintiffs from the suit land. Accordingly, it was prayed that the defendants be restrained from interfering in the possession of the plaintiffs over the suit land forcibly as the plaintiffs were the owners in possession of the suit land. The suit was contested by Gurdev Singh defendant, who filed the written statement alleging therein that the suit land was Bashindgan Deh and vested in the Gram Panchayat, who was the owner thereof and was managing the said land. It was denied that the plaintiffs were the owners of the said land. It was alleged that various persons named in the written statement were in possession of the suit land and had installed their Guharas etc. thereon. It was alleged that the plaintiffs wanted to take forcible possession of this land and they were restrained from doing so by the Gram Panchayat. It was alleged that Gurdev Singh defendant is the Sarpanch of the Gram Panchayat whereas Senhsi Singh defendant was a member of the Gram Panchayat. It was alleged that the plaintiffs could not file the suit against the Gram Panchayat. They had filed the present suit against the defendants in their individual capacity. It was alleged that Inder Singh plaintiff was previously a member of the Panchayat and remained Sarpanch of the village for 10 or 11 years and during this period he got some entries made in the revenue record falsely. Accordingly it was prayed that the suit be dismissed. In the replication, the plaintiffs controverted the allegations contained in the written statement. 3. Accordingly it was prayed that the suit be dismissed. In the replication, the plaintiffs controverted the allegations contained in the written statement. 3. On the pleadings of the parties, various issues were framed. After hearing both sides and perusing the record, the learned Trial Court dismissed the suit of the plaintiffs holding that the plaintiffs had failed to prove that they were owners in possession of the suit property. The appeal filed by the plaintiffs was also dismissed by the learned Additional District Judge. Aggrieved against the same, the plaintiffs filed the present Regular Second Appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. After hearing the learned counsel for the parties, in my opinion, the following substantial question of law arises for determination in this appeal;- "Whether the plaintiffs are entitled to the grant of permanent injunction if they have been able to prove that they are in established possession over the suit land and the defendants have no concern with the same." 6. As referred to above, in the present case, the plaintiffs had sought a permanent injunction against the defendants restraining them from taking forcible possession of the property in dispute, alleging therein that the plaintiffs were owners in possession of the suit land Makbooja Bashindgan Deh and that the defendants had no concern with the same and that the defendants were forcibly trying to dispossess the plaintiffs from the suit land. The parties had produced oral and documentary evidence. In the jamabandi for the year 1975-76, copy Exhibit P1, the land was shown as Bashindgan Deh in the Column of ownership whereas Inder Singh (plaintiff No. 1) and Arjan Singh (father of the other plaintiffs) were recorded in cultivating possession of the suit land as "Gair Marusi", Similar is the position in the khasra Girdawari Exhibit P2 for the years 1976-77 to 1979-80. During the pendency of the suit, the Assistant Collector, II Grade, Budhlada has visited the spot on 31.8.1981 and had found that there was no cultivation on the suit property, whereas various persons had installed their Guharas etc. on the said land and the property belonged to the Panchayat Deh. He had also observed that Gurdev Singh etc. During the pendency of the suit, the Assistant Collector, II Grade, Budhlada has visited the spot on 31.8.1981 and had found that there was no cultivation on the suit property, whereas various persons had installed their Guharas etc. on the said land and the property belonged to the Panchayat Deh. He had also observed that Gurdev Singh etc. (plaintiffs) had not cultivated the land and accordingly, he made correction in the khasra Girdawari showing it to be "Gair Mumkin Guhara Bashindgan Deh on nagar Panchayat Bakshiwala". In this manner, he changed entries in the khasra Girdawari as would be clear from the order Exhibit D1 and the appeal filed by the plaintiffs Inder Singh etc. was dismissed by the Assistant Collector 1st Grade as per the copy of the order Exhibit D2. It was on the basis of the correction made in the khasra Girdawari on the basis of Exhibits D1 and D2 that the Trial Court found that the plaintiffs were not in possession of the suit property and as such dismissed the suit of the plaintiff. However, in appeal it was found by the learned Additional District Judge that the orders Exhibits D1 and D2 did not on the face of it appeared to have been passed correctly in view of the infirmities noticed by the learned Additional District Judge, in the said orders yet, it was found by the learned Additional District Judge that the plaintiffs could not be said to be in exclusive possession of the property in dispute, which was owned by the residents of the village and as such the plaintiffs were not entitled to the decree for permanent injunction though they could ask for partition. Resultantly, the appeal was dismissed. 7. After hearing the learned counsel for the parties and perusing the record, in my opinion, the findings recorded by the Courts below on issue No. 1 are liable to be reversed, so far as the question regarding possession is concerned. Resultantly, the appeal was dismissed. 7. After hearing the learned counsel for the parties and perusing the record, in my opinion, the findings recorded by the Courts below on issue No. 1 are liable to be reversed, so far as the question regarding possession is concerned. As referred to above, the Trial Court found that the plaintiffs had failed to prove their possession over the suit property in view of the correction in khasra Girdawari made by the Assistant Collector on the basis of spot inspection made during the pendency of the present suit, whereas the learned Additional District Judge refused to interfere even after holding that the orders Exhibits D1 and D2 passed by the revenue officers ordering the correction of the khasra Girdawari did not appear to have been passed correctly by observing that the plaintiffs could not be said to be in possession of the property in dispute and as such they could ask for partition. ,In my opinion, the reasonings given by the Trial Court and the lower Appellate Court in refusing to grant injunction in favour of the plaintiffs are contrary to law. As referred to above, as per the oral evidence as also the documentary evidence in the form of the copies of Jamabandi Exhibit D1 for the year 1975-76 and copy of Khasra Girdawari Exhibit P2 for the years 1976-77 to 1979-80, it was observed on the record that the plaintiffs were in possession of the suit property, which was recorded as Bashindgan Deh. As per the revenue record, the plaintiffs are recorded in exclusive possession of the suit property measuring 4 kanals 18 marlas. The suit property may be part of the land which was Bashindgan Deh but so far as the possession is concerned, from the revenue record, it stands established that the plaintiffs were in exclusive possession of the suit property measuring 4 kanals 18 marals. The correction in the khasra Girdawari, which was made on the basis of spot inspection during the pendency of the present suit, in my opinion could not be made the basis to non-suit the plaintiff, especially when even the learned Additional District Judge found that the orders copies Exhibits D1 and D2 did not appear to have been passed correctly. 8. 8. From the oral and documentary evidence produced on the record, in my opinion, it stands established on the record that the plaintiffs were in exclusive possession of the land measuring 4 kanals 18 marlas detailed in the heading of the plaint. So for as the ownership is concerned, the plaintiffs have miserably failed to prove that they are the exclusive owners of the suit property, which was recorded as Bashindgan Deh. The plaintiffs being in established possession of the suit property, in my opinion, are entitled to a decree for injunction against the defendants, especially when, there is nothing on the record to show that the defendants had any concern with the suit property in their individual capacity and as such the defendants are liable to be restrained from interfering in the possession of the plaintiffs over the suit property except in due course of law. This is especially so when the defendants in their individual capacity are not claiming ownership over the suit property. 9. In view of my detailed discussion above, the substantial question of law framed above is decided in favour of the plaintiffs and it is held that the plaintiffs are entitled to the grant of a decree for permanent injunction against the defendants, who have no concern with the suit property. Resultantly, the finding of the Courts below on issue Nos. 1 and 3 in respect of possession is reversed and it is held that the plaintiffs are in possession of the suit property and are entitled to the grant of injunction against the defendants. 10. For the reasons recorded above, the present appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit of the plaintiffs is decreed and a decree for permanent injunction is passed in favour of the plaintiffs and against the defendants, restraining the defendants from interfering in the possession of the plaintiffs over the suit property except in due course of law. However, there shall be no orders as to costs.