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2009 DIGILAW 1758 (PNJ)

Nirmal Singh v. Kartar Singh

2009-10-12

SABINA

body2009
JUDGMENT Sabina, J.:- Plaintiff Kartar Singh filed a suit for permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Batala vide judgment and decree dated 19.1.2005. In appeal, the said judgment and decree were set aside by the Additional District Judge, Gurdaspur vide judgment and decree dated 13.2.2008 and the suit of the plaintiff was decreed with costs. Hence, the present appeal by the defendant. 2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Brief facts of the case of the plaintiff are that the land in dispute as fully detailed and described in the hearing of the plaint, belongs to Jumla Mushtarka Malkan Hasab Rasab Khewat and the plaintiff is in actual physical possession over the land in dispute, as Gair Marusi since the consolidation in the village. The defendant has got no right, title or interest in the suit land. The defendant has threatened to interfere in the possession of the plaintiff and to dispossess him from the suit land illegally and forcibly. On 24.8.2001 at about 5.30 pm, the defendant with the help of Surinder Kaur wife of Darbara Singh, Harjit Singh son of Nirmal Singh, Darbara Singh and Satnam Singh sons of Pritam Singh resident of Mohalla Santokhpura, Sirihargobindpur, gave serious injuries to Ajit Singh son of plaintiff and entered into the possession over the suit land illegally and forcibly. Said Ajit Singh has already filed a complaint under Sections 326/325/323/324/447/148/149 of IPC in the Court of learned JMIC Batala. The defendant is bound to deliver the possession of the suit land to the plaintiff. The plaintiff has been dispossessed from the suit land during the pendency of the case and after appearance in the court having full knowledge about the issuance of the adR. S.A.No. 2081 of 2008 (O&M) 3 interim injunction by the Court. Plaintiff is therefore, entitled to alternative relief of possession. The plaintiff requested the defendant to desist from his threatened aims and designs but he has refused to do so. Hence, this suit. 3. Upon notice, the defendant appeared and filed the written statement wherein it is admitted that the land in dispute belongs to Jumla Mushtarka Malkaan Hasab Rasab Khewat but it denied that the plaintiff is in exclusive possession over it since consolidation as alleged. Hence, this suit. 3. Upon notice, the defendant appeared and filed the written statement wherein it is admitted that the land in dispute belongs to Jumla Mushtarka Malkaan Hasab Rasab Khewat but it denied that the plaintiff is in exclusive possession over it since consolidation as alleged. The alleged entries if any in the name of the plaintiff in the revenue record are illegal, ultravires, null and void and the same have got no binding force on the rights of the defendant. In fact, the defendant is the real brother of the plaintiff and the defendant being one of the proprietor of the village is in joint possession over the suit land along with other adjoining land bearing Khasra Nos. 43R/16,25,43R/15/2/2/, 43R/14/3m 15/2/1/ and the suit against the co-sharer/co-owner in possession is not maintainable. The plaintiff has filed the present suit on the basis of illegal entries in the revenue record incorporated in the Khasra girdawari. The suit land is amalgamated with the above mentioned land. The defendant is in joint possession over the suit land as co-sharer. Rest of the allegations mentioned in the plaint have been denied by the defendant and prayer for dismissal of the suit was made.” 3. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for permanent injunction restraining the defendant from interfering into his possession over the suit land? OPP 2. Whether plaintiff has suppressed the material facts from this Court and is not entitled for discretionary relief of injunction? OPD 2-A Whether in the alternative plaintiff is entitled for possession of the suit land? OPP 3. Relief. “ 4. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. 5. The plaintiff had filed a suit for permanent injunction that the defendant be restrained from dis-possessing him from the suit land. A perusal of the revenue record i.e. copies of jamabandis from the year 1974-75 onwards Ex.P-2 to Ex.P-5 reveals that the plaintiff Kartar Singh is in exclusive possession of Khasra No.43//17 (0-16). Ex.P-6 is the copy of Khasra Girdawari for Sauni (kharif) 2000 to Hadi (Rabi) 2001 which also reflects the possession of the plaintiff with regard to the suit land. The suit was filed on 17.8.2001. Ex.P-6 is the copy of Khasra Girdawari for Sauni (kharif) 2000 to Hadi (Rabi) 2001 which also reflects the possession of the plaintiff with regard to the suit land. The suit was filed on 17.8.2001. The plaintiff in his cross-examination deposed that he had been dispossessed from the suit land by the defendant forcibly on 24.8.2001. He further admitted that although Nirmal Singh was also owner of the suit land but he was not in possession of the same. Appellant-defendant in his examination-in-chief deposed that the plaintiff was not in exclusive possession over the suit land but was a co-sharer with the defendant and was in joint possession over the suit property. Thus, the possession of the plaintiff over the suit land was also admitted by the defendant although he had stated that both plaintiff and defendant were in joint possession of the suit land. The said fact is negatived by the revenue record. As per the revenue record, plaintiff is in exclusive possession of the suit land. The appellant-defendant has not made any effort to get the revenue entries corrected with regard to the possession. The exclusive possession of the plaintiff is depicted in the revenue record since long. In these circumstances, learned Additional District Judge rightly held that the defendant-appellant had failed to establish as to how he came in possession of the suit property, which was in possession of the plaintiff. At the time of filing of the suit, the plaintiff was in possession of the suit land and hence, his possession was liable to be protected. 6. Thus, the impugned judgment and decree calls for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. ------------