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2014 DIGILAW 892 (PNJ)

Jagbir Singh v. Amrik Singh

2014-05-21

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- This is defendants’ second appeal challenging the judgment and decree of the trial Court dated 29.1.2010, whereby suit of the plaintiff-respondent for permanent injunction has been decreed and the defendant-appellants have been restrained from dispossessing the plaintiff-respondent from his partial possession over the suit land except in due course of law. Further challenge has been laid to the judgment and decree of the lower Appellate Court dated 27.10.2012, dismissing the appeal filed on behalf of the defendant-appellants against the aforesaid judgment and decree of the trial Court. 2. As per the averments made in the suit, plaintiff respondent was in possession of the suit land since 1970 which was delivered to him by his father who was a Gair Marusi. He had constructed a kutcha chhappar for residence on a small portion of the suit land and was in cultivating possession of the remaining land. It was further averred that the adjacent land bearing khasra no.2312, 2313/3 was also owned and possessed by the plaintiff respondent. He had residential house in khasra no.2312 and had installed a hand pump in khasra no.2313/3 and had got an electric motor in the same khasra number. The water hand pump is carried to the house of the plaintiff in khasra no.2312 and underground pipe was dug through the suit property. It was further averred that the defendant-appellants wanted to dispossess him illegally. It was further stated that cause of action firstly arose in the year 1993 when defendants no.1 to 4 were threatening to dispossess the plaintiff forcibly. Thus, the plaintiff-respondent No.1 filed the present suit bearing Civil Suit No.515 dated 4.9.1998. 3. Upon notice, defendant-appellants appeared and filed written statement contesting the suit, raising various preliminary objections. It was stated that the plaintiff-respondent no.1 never remained in possession of the suit property, nor possession of the same was delivered by Ram Singh to the plaintiff. Rather, Amrik Singh was divested from the entire property by giving declaration in newspaper dated 17.7.1990 and the plaintiff-respondent was living separately from the entire family because of his misdeeds and litigation with Ram Singh and other family members. Rather, Amrik Singh was divested from the entire property by giving declaration in newspaper dated 17.7.1990 and the plaintiff-respondent was living separately from the entire family because of his misdeeds and litigation with Ram Singh and other family members. Since the plaintiff-respondent could not succeed in his illegal misdeeds, he joined Gurdial Kaur, mother, with him and both of them started litigation against deceased Ram Singh, so much so respondent Amrik Singh filed civil suit for injunction against Ram Singh on the basis of an alleged family settlement in Civil Suit No.430 dated 15.6.1989 which was dismissed on 22.8.1990. Gurdial Kaur also filed suit against Ram Singh for maintenance and restraining him from alienating his property, but the same was dismissed. One complaint was also filed against Ram Singh and the defendants under Sections 323, 324, 325 IPC which was dismissed after the death of Ram Singh. Gurdial Kaur initiated proceedings under Section 145 CrPC wherein Amrik Singh was also a helping party to Gurdial Kaur. Those proceedings were dropped as dismissed by SDM, Kharar on 11.8.1992. A revision was also pending against the aforesaid order in the Court of Additional Sessions Judge, Ropar. Thus, the facts as stated by the plaintiff-respondent are not believable, being false. Defendants no.1 to 4 had also filed a suit with regard to the suit property bearing Civil Suit No.291 dated 19.7.1993, as the defendants were going to auction the suit property. However, a statement was made on behalf of the defendant-authorities that they had no intention to auction the same. Hence, the said suit was dismissed as withdrawn and the parties were bound down as per the statement and in case, the plaintiff-respondent had deposited the rent, the same is illegal in view the statement made by the defendant-appellants and the nature of the suit property and also keeping in view the inheritance of Ram Singh, who was a Gair Marusi tenant and thus, the plaintiffrespondent alone cannot be allowed to deposit the rent without the consent of other legal heirs. Even otherwise, Tehsildar Kharar had no right to lease out the property of defendant no.6 (now proforma respondent) and he had been allowed to deposit the rent without the knowledge and consent of the defendant-appellants by misusing his office and the action of the Tehsildar was being challenged in separate suit and in departmental proceedings against him. Even otherwise, Tehsildar Kharar had no right to lease out the property of defendant no.6 (now proforma respondent) and he had been allowed to deposit the rent without the knowledge and consent of the defendant-appellants by misusing his office and the action of the Tehsildar was being challenged in separate suit and in departmental proceedings against him. There was no kutcha kotha and Chhappar in the suit property. Rather, it was under the cultivation of the defendant-appellants. Remaining averments of the plaint were admitted to be correct. It was further stated that the plaintiff-respondent had filed the suit and had obtained injunction by concealing material facts and documents and thus, he has not come with clean hands. Thus, the suit was liable to be dismissed. 4. From the pleadings of the parties, following issues were framed:- “1. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP. 2. Relief.” 5. After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court partly decreed the suit of the plaintiff-respondent vide judgment and decree dated 29.1.2010, observing as under:- “I have perused the case file and have considered the contentions of learned counsel for the parties. A perusal of the file shows that father of the plaintiff Amrik Singh Ram Singh was in possession of the suit property as per Jamabandi Ex.PW2/B as gair marusi and in the column of ownership Provincial Government Capital Project, Chandigarh is shown to be owner of the suit property. It is admitted case of the parties that Ram Singh has died leaving behind plaintiff and defendants no.1 to 4 being sons as legal heirs. It is established principle of law that after the death of father, his sons step into his shoes. Therefore, the plaintiffs alongwith defendants no.1 to 4 have stepped into the shoes of Ram Singh. Since there is nothing on record to prove that plaintiff was excluded from the possession of the suit property by Ram Singh deceased, therefore, it can be inferred that plaintiff along with defendants no.1 to 4 are in possession of the suit property. However, the possession of the suit property has not been determined by metes and bounds by the plaintiff and defendants no.1 to 4. However, the possession of the suit property has not been determined by metes and bounds by the plaintiff and defendants no.1 to 4. Under the facts and circumstances of the case, I have no option except to conclude that the plaintiff is in possession of the suit property along with defendants no.1 to 4 partially. Accordingly, the plaintiff is entitled for permanent injunction for restraining the defendants from dispossessing him from the suit property which is in possession of the plaintiff partially alongwith defendants no.1 to 4 as depicted from Ex.PW2/A site plan except in due course of law. Accoridngly, issue no.1 is partially decided in favour of the plaintiff.” 6. Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant-appellants preferred an appeal before the first Appellate Court which was also dismissed, observing that the judgment and decree of the trial Court was well reasoned and does not suffer from any illegality or perversity, calling upon interference of the Appellate Court. 7. Still not satisfied, the defendants have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- “A) WHETHER the judgments and decrees in a suit for permanent injunction could be passed on the basis that father of the parties died and after his death, parties have stepped into the shoes of their father and plaintiff is entitled to protect his possession to the extent of his share without considering/holding the possession of the parties? B) WHETHER the judgments and decrees are the result of non-reading/misreading of the pleadings and the evidence on record, and is an error of law and raises substantial questions of law?” 8. Learned counsel for the appellants has vehemently argued that both the Courts below have failed to consider and appreciate the fact that the appellants are in possession of the suit property and the same is being cultivated by them and possession of the appellants is proved from the earlier litigation between the parties. It is the further submitted that the plaintiff-respondent was excluded from the possession of the suit property by Ram Singh and the said fact can be inferred from the fact that even the suit for permanent injunction filed by plaintiff-respondent against his father Ram Singh was dismissed in the year 1990. It is the further submitted that the plaintiff-respondent was excluded from the possession of the suit property by Ram Singh and the said fact can be inferred from the fact that even the suit for permanent injunction filed by plaintiff-respondent against his father Ram Singh was dismissed in the year 1990. According to learned counsel, the impugned judgments and decrees are the result of misreading of the pleadings and the relevant material evidence and therefore, the substantial questions of law, as raised, do arise in this appeal and the impugned judgments and decrees of the Courts below are liable to be set aside. 9. I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below. 10. It may be noticed that the plaintiff-respondent had sought injunction against the appellants, restraining them from illegally and forcibly interfering in his peaceful possession over the land bearing khasra No.2314/4 (0-14) situated within the revenue estate of Village Mullanpur Garibdas. In the Jamabandi for the year 1991-92, (Ex.PW2/B), in column no.4, “Provincial government Capital Project, Chandigarh” is recorded, whereas, in column no.5, “Capital Project through Ram Singh son of Jai Ram” is recorded as “Gair Marusi” in khasra no.2313/4 (0-14), which is in dispute. The plaintiff-respondent claims to be in exclusive possession of the aforesaid land in dispute since the year 1970, alleging that his father had given him possession and the rent receipts (Ex.P1 to Ex.P3) coupled with the entry made in column no.12 of Ex.PW2/B, which proves the deposit of Chakota, shows the possession of the plaintiff-respondent over the suit land. Though the aforesaid receipts do not confer the exclusive right of the plaintiff-respondent qua the property in dispute, as the same can be issued in favour of one of the legal representatives of deceased Ram Singh and thus, the aforesaid receipts are not sufficient to hold that the plaintiff-respondent is in exclusive possession of the property in dispute. However, the fact remains that after the death of Ram Singh, plaintiff-respondent has a right to step into his shoes along with the appellants being legal heirs of Ram Singh, as Gair Marusi tenants. Learned counsel for the appellants has not disputed that the tenancy rights are inheritable. However, the fact remains that after the death of Ram Singh, plaintiff-respondent has a right to step into his shoes along with the appellants being legal heirs of Ram Singh, as Gair Marusi tenants. Learned counsel for the appellants has not disputed that the tenancy rights are inheritable. That being so, all the LRs of deceased Ram Singh including the plaintiff-respondent are supposed to step into his shoes in joint possession of the suit property, as Gair Marusi. Thus, the trial Court has rightly held that the plaintiff-respondent is entitled to protect his possession to the extent of his share, which is in his possession, along with the appellants. 11. Thus, no substantial question of law arises in this appeal. 12. Dismissed. ---------0.B.S.0------------