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2011 DIGILAW 4860 (MAD)

G. Hemalatha v. Amaravathi

2011-12-19

S.MANIKUMAR

body2011
JUDGMENT 1. The second appeal arises out of the concurrent decisions of the Courts below. The plaintiff is the appellant herein. 2. Plaint averments are as follows: The plaintiff is the absolute owner of the suit piopciy, having inherited of the same from one Govindarajulu Naidu, her husband, who had acquired the same, along other properties, vide settlement deed, dated 25.12.1959. Since then, her husband was in possession and enjoyment of the same. Earlier, one Ramabathira Naidu has filed a suit against her husband, in respect of the suit property and other properties in O.S. No. 33 of 1985 before the learned District Munsif, Madurantakam and that the said suit was dismissed. Thereafter, husband of the plaintiff, filed a suit in O.S. No. 139 of 1991, on the file of the learned District Munsif Court at Madurantakam, against the first defendant, for recovery of possession, which was decreed on 19.7.1991. Then, execution proceedings were initiated and as per the terms of the decree, possession of the property was delivered by the Court on 18.10.1993. Since then, Govindarajulu Naidu was in possession and enjoyment of the suit property and after his demise, the plaintiff is in exclusive possession and enjoyment of the same. The defendants are strangers to the suit property and they have no right or title over the same. On 21.4.2000, the defendants have attempted to tress-pass into the suit property, which was prevented by the plaintiff, in the abovesaid circumstances, the plaintiff has instituted the present suit, for a permanent injunction, restraining the defendants, their men, agents and representatives, from in any manner, from interfering with her peaceful possession and enjoyment of the suit property. 3. The defendants, in their written statement, have denied the contentions that the plaintiff is in exclusive possession of the suit property and the settlement deed, dated 25.12.1959, besides the other contentions, including the previous litigation. According to them, they are in possession and enjoyment of the suit property, from time memorial. They also submitted that the very fact that the suit in O.S. No. 139 of 1991 was instituted by the plaintiffs husband, would show that the defendants were in possession. They denied having signed any receipt for delivery of the suit property. According to them, documents 5 to 7 filed by the plaintiff were fabricated by unfair means and not relevant to the suit property. They denied having signed any receipt for delivery of the suit property. According to them, documents 5 to 7 filed by the plaintiff were fabricated by unfair means and not relevant to the suit property. They also submitted that they have put a superstructure for dwelling purpose, which has not been mentioned by the plaintiff. In the above said circumstances, the defendants have prayed for dismissal of the suit. 4. On the above pleadings, the lower Court has framed following issues for consideration, (1) Whether the plaintiff is entitled for permanent injunction against the defendant? (2) Whether the defendant is in possession and enjoyment of the suit property? (3) To what relief? 5. The plaintiff examined herself as P.W.1 and one Govindasamy has been examined as P.W.2. Exhibits A-1 to A-9 have been marked on the side of the plaintiff. The 1st defendant examined herself as D.W.1 and Exhibits B-1 to B-10 were marked. Thiru. G. Kanniappan, V.A.O., has been examined as X.W.1 and through him, Exhibits X-1 and X-2, have been marked. The Commissioner‘s Report and the Objections filed by the plaintiff have been marked as Exhibits C-1 and C-2 respectively. 6. On evaluation of pleadings and evidence, the Lower Court held that the plaintiff has failed to prove her possession of the suit property and therefore, dismissed the suit for permanent injunction. Being aggrieved by the same, the plaintiff has filed an Appeal in A.S. No. 27 of 2004, on the file of the learned Subordinate Judge, Madurantakam. Upon consideration of the material on record, the lower appellate Court has confirmed the decision of the lower Court. As against the concurrent findings, the plaintiff has filed the second appeal, which has been entertained on the following substantial questions of law, (1) Whether the Courts below have failed to presume the existence of Exhibit A-2, Delivery Receipt and pursuant to that, possession is with the appellant as per Section 114(e) of the Indian Evidence Act, 1872, when admittedly no fraud has been alleged by the respondent, regarding Exhibit A-2? (2) Whether the Courts below are correct in dismissing the suit, when admittedly the appellant is a true owner of the suit property? (3) Whether the judgments of the Courts below are perverse and unsustainable? 7. Assailing the impugned judgments on the above substantial question of law, Mr. (2) Whether the Courts below are correct in dismissing the suit, when admittedly the appellant is a true owner of the suit property? (3) Whether the judgments of the Courts below are perverse and unsustainable? 7. Assailing the impugned judgments on the above substantial question of law, Mr. V. Govi Ganesan, learned counsel for the appellant, at the foremost, took this Court to the defence put up by the defendant in their written statement and submitted that they did not deny the title of the plaintiff to the suit property. He further submitted that their only objection was that the said delivery receipt was not signed by the defendant and the documents produced by the plaintiff were fabricated and that the plaintiff has failed to mention the superstructure property. He further submitted that earlier, the plaintiffs husband filed a suit in O.S. No. 139 of 1999, before the learned District Munsif, Madurantagam, against the present 1st defendant for recovery of possession and that vide judgment and decree, dated 19.7.1991, which is marked as Exhibit A-1, the suit was decreed, pursuant to which, delivery of the property was taken in the presence of Village Administrative Officer. 8. He further submitted that in the present suit, before the trial Court, the Village Administrative Officer has been examined as X.W.1, who has categorically deposed that pursuant to the execution proceedings, in E.P. No. 45 of 1993 in O.S. No. 139 of 1999, possession of the suit property was taken by the said Govindarajulu, plaintiff therein. He submitted that delivery receipt is a Court record. He further submitted that no judgment debtor would sign the delivery receipt. Exhibit A-2, Delivery Receipt, has been issued by the Court, an act, which has been regularly performed and therefore, under Section 114(e) of the Indian Evidence Act, the Courts below ought to have presumed that possession has been handed over to the plaintiffs husband, pursuant to Exhibit A-2 and accordingly, decreed the suit for injunction. 9. Reiterating the defence put up by the defendant, learned counsel for the appellant/plaintiff further submitted that the only contention made by the defendant was denial of her signature that she did not sign in Exhibit A-2, Delivery Receipt and she has not disputed the existence of the Court record nor objected that there was any fraud played at the time of delivery of the property to Govindarajulu, husband of the plaintiff. He also submitted that neither the CPC nor Civil Rules of Practice, mandate that the judgment debtor should sign in the delivery receipt and that a delivery receipt is issued by the Court. As there is no allegation of fraud in the matter of handing over delivery, it is not open to the respondent/defendant to contend that there was no delivery, nor it could assumed that delivery was only symbolic or paper delivery. Reliance was placed on Komiah v. Subbulakshmiammal (2002) 1 MLJ 647 . 10. Taking this Court through the judgments of both the Courts, learned counsel for the appellant/plaintiff submitted that both the Courts have erroneously approached the issues, as if, the documents produced by the plaintiff were fabricated. He also submitted that both the Courts below have given undue weightage to the status of the plaintiff that she is a widow and the said aspect has overweighed the legal principles, stated supra, which the Courts below ought to have applied, while considering the oral and documentary evidence, let in by the plaintiff, to prove her possession and in particular, Exhibit A-2, Delivery Receipt, duly attested by the Village Assistant. 11. Learned counsel for the appellant/plaintiff submitted that the Advocate Commissioner is not the competent person to speak about the possession of the property and therefore, the Courts below has erred in placing reliance on the report and that the decision regarding possession ought to have been made, only on the basis of proper appreciation of oral and documentary evidence, which in the case on hand, is amply proved by Exhibit A-2, Delivery Receipt. In support of the above contention, he placed reliance on a decision in Chinnathambi and 2 Others v. Anjalai 2006 (4) LW 516 : (2007) 1 MLJ 513 . 12. Learned counsel for the appellant/plaintiff further submitted that the Courts below have failed to consider that though kist has been paid for the suit property in the name of the plaintiffs husband, Govindarajulu, but, erred in giving credence in Exhibits B-8 to B-10, Voter‘s list, Ration Card and Voters Identification Card, while adjudging possession. 12. Learned counsel for the appellant/plaintiff further submitted that the Courts below have failed to consider that though kist has been paid for the suit property in the name of the plaintiffs husband, Govindarajulu, but, erred in giving credence in Exhibits B-8 to B-10, Voter‘s list, Ration Card and Voters Identification Card, while adjudging possession. In sum and substance, he submitted that both the Courts below have failed to apply the principles of law, by ignoring the bailiffs endorsement in Exhibit A-2, Delivery Notice and exceeded in their jurisdiction in delving into the matter of recording delivery of possession by the Court, without recording any specific plea of fraud in the written statement filed by the defendants and that therefore, the Courts below have erred in assuming that the delivery through Court was only a paper or symbolic delivery. 13. Per contra, refuting the arguments of the learned counsel for the appellant/plaintiff, learned counsel appearing for the respondents/defendants, submitted that though the issuance of Exhibit A-2, Delivery Receipt, is an act of the Court through bailiff, mere production of the Delivery Receipt alone is not sufficient to prove that the plaintiff is in actual possession of the suit property on the date of institution of the suit. According to him, the very institution of O.S. No. 139 of 1991, for recovery of possession, itself would indicate that the defendant was in possession of the suit property. However, even after the decree, the defendants continued to remain in possession of the suit property and the same has been amply proved by documentary evidence. He also submitted that when an Advocate Commissioner was appointed for the purpose of noting down the physical features of the property, he has filed a report in Exhibit C-1, wherein, he has reported that there was a dwelling house in the suit property, closed on four sides, by gunny bags. There were traces of articles to show that the suit property has been used as a dwelling house. 14. He further submitted that the contention of the learned counsel for the appellant/plaintiff that the Advocate Commissioner has submitted a report, speaking about the defendant‘s possession, is not correct and what the learned Advocate Commissioner has stated in Exhibit C-1 - Report, is only about the physical features of the suit property. He also submitted that no objection has been raised to the report of the Advocate Commissioner. He also submitted that no objection has been raised to the report of the Advocate Commissioner. The plaintiff has not explained the existence of the hut and the other cooking articles in the suit property. 15. Learned counsel for the respondents/defendants that in a suit for injunction, it is for the plaintiff to prove that she is in actual possession of the property by oral and documentary evidence. According to him, the defendants are in continuous possession and enjoyment of the suit property for many years. As the plaintiffs have failed to establish possession, through oral and documentary evidence and he submitted that there is no manifest error in recording a finding on possession. For the reasons, stated supra, prayed to sustain the judgments and decrees. Heard the learned counsel for the parties and perused the materials available on record. 16. It is the case of the plaintiff that she has been in possession and enjoyment of the suit property, ever since the death of her husband, Govindarajulu and prior to her, her husband, Govindarajulu, was in possession and enjoyment of the suit property, by virtue of the delivery effected under Exhibit A-4, E.P. No. 45 of 1993 in O.S. No. 139 of 1999 on the file of the District Munsif, Madurantagam, instituted against the 1st defendant, Amaravathi, for recovery of possession. 17. It is the further contention of the plaintiff that the delivery of possession of the suit schedule property, measuring 0.02.5 Hectares in Dry Survey No. 103/3B, Puthirankottai Village, Cheyyar Taluk, was handed over by the Senior Bailiff of the learned District Munsif Court, Madurantagam, on 18.10.1993, in the presence of Village Administrative Officer and as recording of delivery is an judicial act, the presumption under Section 114 of the Evidence Act, is applicable and that the lower Courts have committed an error in discarding Exhibit A-2, on the sole ground that the defendant did not sign Exhibit A-2, Delivery Receipt. It is also her further contention that in the absence of any specific pleading of fraud, the Court cannot go into the matter of recording delivery of possession. 18. In the written statement filed by the defendant, admittedly, there is no specific case of fraud, prayed by the plaintiffs husband, when Exhibit A-2, was recorded. It is also her further contention that in the absence of any specific pleading of fraud, the Court cannot go into the matter of recording delivery of possession. 18. In the written statement filed by the defendant, admittedly, there is no specific case of fraud, prayed by the plaintiffs husband, when Exhibit A-2, was recorded. According to the defendant, Exhibit A-5, dated 22.4.2000, kist receipts in the name of Govindarajulu, for the fasli year 1409, equivalent to English Calender year 2000, Exhibit A-6, dated 24.7.1989, House Tax Receipts in the name of Govindarajulu, Exhibit A-7, dated 25.12.1959, certified copy of the settlement deed executed by Perumal Nadu and Jayabathiammal in favour of Rambathra Naiau cuiu Govindarajulu, have been fabricated and by unfair means and they did not pertain to the suit property. It is also the contention of the defendants that the plaintiff has suppressed the fact that there is already a superstructure for dwelling purpose in the suit schedule property. 19. There cannot be any quarrel that there is always a presumption under Section 114 of the Evidence Act, where there is a performance of judicial and official acts. The maxim omnia praesumuntur rite esse acta applies to judicial and official acts, which means that all acts are presumed to have been rightly and regularly done. It is also settled principle of law that matters of judicial record of unquestionable, inasmuch as they are not open to doubt. The presumption under Section 114(e) of the Evidence Act, could only be nullified by a clear and cogent evidence to the contra. But the fact remains to be established in the present appeal is that, whether the plaintiff is in possession of the suit property, even taking it for granted the presumption is in favour of the plaintiff. Now let me consider the decisions relied on by the learned counsel for the appellant/plaintiff. 20. In C. Ramasami v. Kuruva Boyan 1991 (1) LW 244 : LNIND 1991 Mad 19 , in the pending second appeal, by way of counter, the respondent therein submitted that items 1 and 3 in the disputed lands were already delivered to him and he also produced certified copies of the deliver athakshis. 20. In C. Ramasami v. Kuruva Boyan 1991 (1) LW 244 : LNIND 1991 Mad 19 , in the pending second appeal, by way of counter, the respondent therein submitted that items 1 and 3 in the disputed lands were already delivered to him and he also produced certified copies of the deliver athakshis. A learned Single Judge, accepted the same, despite the objections raised by the appellant therein that it was only a paper delivery and the suit items 1 to 3 were not actually delivered to the appellant/plaintiff. Reliance was also placed on a decision of this Court in Ramalingam v. Krishna Reddy (1974) 1 MLJ 142 : 86 L.W.63 . Rejecting the said objections, a learned Single Judge has held as follows: “It is not possible for a Court to ignore the evidence afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiff‘s endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the Court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under Section 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply.” 21. In Govindaswamy Pillai v. Marudan 2002 (1) LW 113 , the tenant remained ex parte, resulting in decree for recovery of possession. The plaintiff contended that in the execution proceedings, he took possession of the suit property. As there was an physical tresspass into his possession, he had again filed a suit for permanent injunction. Opposing the suit, the defendant contended that the delivery was only symbolical. However, possession of the defendant was not disturbed and therefore, prayed for dismissal of the said suit. In adjudicating the above said aspect, at paragraphs 21 to 23, this Court held as follows: “21. Opposing the suit, the defendant contended that the delivery was only symbolical. However, possession of the defendant was not disturbed and therefore, prayed for dismissal of the said suit. In adjudicating the above said aspect, at paragraphs 21 to 23, this Court held as follows: “21. The next point for consideration is whether it would be open to the respondent to plead that the recording of delivery of possession in the execution petition filed by the appellant was not a recording of actual delivery but of only symbolic delivery. 22. It has been held by Srinivasan, J. as he then was, in C. Ramasami v. Kuruva Boyan and Others 1991 (1) L.W. 244 as follows: “It is not possible for a Court to ignore the evidence afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiffs endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the Court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and that the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under Section 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply. 23. It has not been brought to my notice by the learned counsel for the respondent that there was any plea of fraud in the matter of recording of delivery by the Court. In the absence of any such plea, as has been laid down by this Court in the judgment just referred to, it must be held that it was not open to the respondent to contend that the delivery effected was only a paper delivery. The discussion by the Courts below and in particular, by the lower appellate Court, on this aspect, was wholly unwarranted. The discussion by the Courts below and in particular, by the lower appellate Court, on this aspect, was wholly unwarranted. It was not at all open to the lower appellate Court to have analysed any evidence regarding the truth or otherwise of the delivery. The finding by the Courts below that there was no actual delivery of the property by the respondent to the appellant, pursuant to the execution of the decree in O.S. No. 222 of 1966, has therefore to be vacated.” 22. In Komiah v. Subbulakshmiammal (supra), a suit was filed for a permanent injunction, restraining the defendant from interfering with the possession and enjoyment of the suit property, as a cultivating tenant. The defendants resisted the suit, contending inter-alia that in the earlier suit in O.S. No. 46 of 1979, before the Subordinate Judge, Tenkasi, which was lateron transferred to the District Munsif, Shencottah, filed between the defendants, the suit was decreed in favour of the 1st defendant and pursuant to the execution proceedings, the 1st defendant took delivery of possession and that therefore, the plaintiff was not in possession of the suit property or the relief of injunction. Following a decision of this Court in Govindaswamy Pillai v. Marudan (supra) and on the facts and circumstances of the case, this Court held that, “.......the plaintiff had been set up by the second defendant after the latter had failed in his attempt to get the properties in the prior suit filed by the first defendant. As pointed out in the decisions cited supra, unless there is fraud alleged with details and proved, the Court cannot assume that the delivery through Court was only a proper delivery. There is no warrant for assuming that it was only a symbolical possession and that was taken by the first defendant.” 23. In the instant case, as rightly contended by the learned counsel for the appellant/plaintiff, there are no averments in the written statement, alleging fraud in the matter of handing over delivery. Therefore, it would not proper on the part of the Courts to delve into the issue, as to whether possession had been taken or not. In the instant case, as rightly contended by the learned counsel for the appellant/plaintiff, there are no averments in the written statement, alleging fraud in the matter of handing over delivery. Therefore, it would not proper on the part of the Courts to delve into the issue, as to whether possession had been taken or not. Therefore, reading of Exhibit A-2, Delivery Receipt shows that the Senior Bailiff attached to the learned District Munsif, Madurantagam, in the presence of the Village Administrative Officer, Thalaiyari, Grama Kavalar, Village Assistant and Others, has read out the order made in E.P. No.45 of 1993 in O.S. No. 139 of 1999 and it is also recorded that he has handed over the possession of the schedule property, measuring 0.02.5 Hectares in Survey No. 103/3B in Puthirankottai Village, Cheyyar Taluk. The Village Administrative Officer, has attested the said Delivery Receipt and that the Village Assistant has also been cited as a Witness. Exhibit A-2, Delivery Receipt, is dated 18.10.1993. It is the case of the appellant/plaintiff that her husband, Govindarajulu took possession of the property, pursuant to the Delivery Receipt, Exhibit A-2 and after his demise, she continued to possess and enjoy the suit property. 24. It could be seen from the written statement that the defendant had only denied having signed any receipt for delivery of the suit property to the plaintiff and that according to her, she continued to be in possession. The first defendant has not specifically questioned the validity of Exhibit A-1, Delivery Receipt, on the ground that it was fabricated or obtained by any fraudulent means. Therefore, as rightly contended by the learned counsel for the appellant/plaintiff, the Courts below ought not to have gone into the matter of recording of delivery of possession, where there is plea of fraud. 25. The maxim omnia praesumuntur rite esse acta and the presumption under Section 114(e), relating to the official acts, is applicable to the facts of this case. Nevertheless, it is well settled that in a suit for possession, the plaintiff, who claims to be in possession, has to plead and prove possession with oral and documentary evidence. In that context, it has to be seen, as to whether he has established a case, with reference to the evidence available on record. 26. Nevertheless, it is well settled that in a suit for possession, the plaintiff, who claims to be in possession, has to plead and prove possession with oral and documentary evidence. In that context, it has to be seen, as to whether he has established a case, with reference to the evidence available on record. 26. As stated supra, the delivery receipt is of the year 1993 and that the suit has been instituted on 25.4.2000. To prove possession, the plaintiff has filed Exhibit A-5, dated 22.4.2000, a document obtained three days, prior to filing of the suit. Exhibit A-6, dated 24.7.1989, is the house tax receipt paid by the plaintiffs husband for the period from 1986 to 1990. As rightly observed by the Courts below that had the plaintiffs husband, been in possession of the suit property, after taking delivery, then he would have paid kist to the property, if it was a vacant land or house tax, if there was any house. 27. From Exhibit A-6, it could be seen that the house tax has been paid for the period between 1986 and 1990, by the plaintiffs husband and that therefore, it is evident that there was a house in the suit property. As rightly observed by the Lower Courts that if there was a house situated in the suit property, the delivery receipt ought to have contained some details, regarding the existence of a house in Exhibit A-2, Delivery Receipt. Be that as it may, from the materials on record, it has to be seen as to whether the plaintiff has established a case, establishing possession. Apart from the abovesaid documents, Exhibit A-9, certified copy of the Andangal Extract produced by the plaintiff, is for the Fasli year 1439, equivalent to the English calender year 2000, which is posterior to the filing of the suit and therefore, weightage cannot be given. 28. On the contention that both the Courts below have placed reliance on Exhibits C-1 and C-2, learned Advocate Commissioner‘s report and the objection, to arrive at the conclusion of possession and that the same is untenable in the light of the decision of this Court in Chinnathambi and 2 Others v. Anjalai (supra), it is necessary to consider the said document. Before the trial u defendant has taken out an application in I.A. No. 777 of 2001, to note down the physical features of the suit property and to file his report. The learned Advocate Commissioner, in his report, in Exhibit C-1, dated 12.11.2001, has stated as follows: 29. As per the learned Advocate Commissioner‘s report Exhibit C-1 there was a dwelling hut in the suit property, besides, they were traces of vessels, articles used for cooking and a furnace. That apart, he has also noted there were four buffaloes and calves, tied with the poles in the suit property. Thus, it could be seen that the Advocate Commissioner has not given any specific report, as to who was in possession of the property, but he had only noted down the physical features and the existence of some vessels, animals, a dwelling house, etc. 30. It is well settled principles of law that in a suit for injunction, question as to who is in possession of the property, is a matter to be decided by the Court on the basis of evidence, either oral and documentary, to be adduced by the parties and that the function cannot be delegated to a Commissioner, who cannot find out as to who is in possession of the property. It is also settled principle that in a suit for permanent injunction, whether the plaintiffs are in possession of the suit schedule land and whether there was attempt by the defendant/s to interfere with such possession of plaintiffs, the burden is entirely on the plaintiffs to bring convincing and cogent evidence on record. 31. In the case on hand, on the basis of the Commissioner‘s report, the Courts below have only observed that had been plaintiff been in possession from 1993, as contended, he would have either paid house tax receipts or should have been in a position to explain, as to how, the above mentioned things have come into existence in the suit schedule property. As per the delivery receipt, there is nothing to indicate, there was any dwelling house, etc. Material on record disclose that there was no serious objection to the Commissioner‘s report, excepting to state that the Commissioner is not the competent person to give any verdict, in respect of possession and not intended to conduct any enquiry, as to the possession. 32. Material on record disclose that there was no serious objection to the Commissioner‘s report, excepting to state that the Commissioner is not the competent person to give any verdict, in respect of possession and not intended to conduct any enquiry, as to the possession. 32. The said contention, through rightly held as tenable, the lower Courts have categorically found that the plaintiff, who has claimed to be in possession of the suit property, was not able to explain, as to how the household and other movables, including the existence of firewood ash and the cattles were found in the suit property. It is also not the case of the plaintiffs that those things including the cattles belonged to her. 33. Though the husband of the plaintiff has established his title to the suit property and also stated to have obtained delivery of the same from the first defenant under Exhibit A-2, dated 18.10.1993, on the date of institution of the suit, the plaintiff has not established the fact that after the demise of her husband, she has been in continuous possession and enjoyment of the suit schedule property. Presumption in favour of the appellant/plaintiff that possession has been taken in the year 1993, should not be doubted, but at the same time, it has to be seen whether the plaintiff is in continuous possession and enjoyment of the same. Presumption for taking over possession should not be construed to mean, there is continuous possession of the same and it is established on the date of institution of the suit also. In the case on hand, the ground reality is otherwise. 34. Though the Court cannot ignore the evidence of the bailiff‘s endorsement in the absence of any definite and specific plea of fraud, made by the defendant, in the written statement, as regards delivery of possession, but as stated supra, the plaintiff, who prays for injunction, on the date of institution of the suit, has to prove the same by convincing and cogent record, which in the case on hand, conspicuously absent. On the facts and circumstances of the case, there is no manifest illegality in the finding of fact, recorded by the Courts below, warranting interference. 35. Hence, the substantial questions of law framed are answered negative. The Second Appeal is dismissed. No costs. Appeal dismissed.