Punjab-Haryana High Court
Rajbir Singh And Anr vs Kanta And Anr on 11 February, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-191-2021 (O&M)
CM-1358-C-2021
Date of Decision: 11.02.2022
RAJBIR SINGH AND ANOTHER
...Appellants
Versus
KANTA AND ANOTHER
...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present : Mr. Hardip Singh, Advocate
for the appellants.
(Presence marked through video conference).
ARUN MONGA, J. (ORAL)
For convenience, parties herein are addressed as per recitals
before the trial Court.
2. Having suffered concurrent adverse findings by the two Courts
below, the plaintiffs are in second appeal before this Court assailing the trial
Court judgment and decree dated 07.04.2017 as upheld by learned First
Appellate Court vide its judgment and decree dated 08.02.2021.
3. Briefly stated, facts as noticed by Courts below are that
plaintiffs (appellants and proforma respondent No.2 herein) instituted a suit
for permanent injunction. Averments, inter alia, are/were that the property in
dispute was in cultivating possession of their grandfather-Shri Sardari Lal
for more than 50 years. He had executed a Will dated 02.07.2009 in favour
of appellants/plaintiff. After the death of Shri Sardari Lal on 21.12.2009, the
sole defendant started to interfere in the cultivation possession of said
property. Upon notice, the defendant appeared and filed her written
statement, stating therein, that earlier her father-in-law, namely, Sardari Lal
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was in cultivating possession of the said land. After his death, she has been
cultivating the property. Even the girdawari in respect of land in question
was duly corrected in her favour vide an order dated 30.01.2015 passed by
AC IInd Grade, Naraingarh. She also pleaded that even if the Will in
question was to be executed, the same has to be only qua the land owned by
late Shri Sardari Lal, which is with her and is under the ownership of certain
other individuals.
4. Based on the rival pleadings, following issues were framed:
1. Whether the plaintiff is entitled to decree for permanent
injunction as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable in the
present form?OPD
3. Whether the plaintiff has concealed true and material facts
from the Court?OPD.
4. Whether there is no cause of action in favour of
plaintiff?OPD
5. Relief.
5. The parties to the suit adduced their oral as well as
documentary evidence in support of their pleadings and to discharge their
respective onus as per the issues, ibid.
6. On appraisal of evidence vis-a-vis pleadings, trial Court
decided issue Nos.1 and 3 in favour of the defendant and against the
plaintiffs; issue Nos.2 and 4 in favour of the plaintiffs and against the
defendant and dismissed the suit.
7. First Appellate Court dismissed the appeal. Hence Regular
Second Appeal before this court.
8. I have heard the learned counsel and perused the judgments of
both the Courts below.
9. Learned First Appellate Court while re-appreciating the
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evidence, inter alia, gave valid reasons as below :-
"14. I do not find merit in the contention of the learned
counsel for the appellants to the effect that when Sardari Lal was in
possession of the suit land, continuity of his possession should be
upheld on the basis of the continuity of tenancy which warrants that
the tenancy of the agricultural land always goes to male lineal
descendants and therefore, possession of the suit property should be
presumed to have gone in favour of the appellants/plaintiffs, in the
absence of the evidence to rebut the presumption of continuity. Since in
the present case, the presumption of continuity and inheritance of the
tenancy by plaintiffs, has been duly rebutted by the
defendant/respondent by leading cogent and reliable evidence in the
form of Ex.D2, site inspection report which co-incidentally has been
relied upon and proved by DW2 Naresh Kumar, Halqua Patwari
which clearly shows that Asstt. Collector-II and Patwari had visited
the suit property and had found defendant Kanta Devi to be in
cultivating possession of the land in dispute with her wheat crops
standing in the suit property.
15. PW-4 Sudhir Kumar has duly confirmed the said fact and has
also proved Khasra-Girdwari Ex.P14. He also proved the Inspection
Report, Ex.P29 which was incorporated in revenue record Rapat
No.184.
16. xxx xxx xxx
17. Thus, in the present case, the defendant having clearly shown
delivery of possession to her by proving her actual physical possession
and also corresponding omission made in the Will, in respect of the
suit property. There is no ground for holding that appellants/plaintiffs
were in possession of the suit property.
18. Last but not the least, the additional evidence adduced by the
respondent/defendant also supports her claim on the suit property.
Firstly, the affidavit of Malak Ram (son of Sardari Lal) affirms the
possession being delivered to Kanta Devi widow of Shyam Lal during
the life time of Sardari Lal. Secondly, affidavit of Raj Rani (daughter of
Sardari Lal) also support the possession of Kanta Devi from the time
of her father was alive, in lieu of her service and care of Sardari Lal
during his life time. Thirdly, the order in appeal filed for correction of
Girdwari dismissing the appeal of the appellants/plaintiffs, all confirm
and support the decision rendered by the Ld. Civil Judge."
10. To my mind, judgments under challenge have been rendered
after due and correct appreciation of cogent evidence adduced by the
respective parties.
11. There seems no perversity or illegality in the concurrent
findings of facts returned by the Courts below. No interference is thus called
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for to disturb the said concurrent findings. No fresh ground worthy of
interference in the appellate jurisdiction of this Court is made out.
12. Furthermore, no question of law, much less substantial one, a
sine qua non for entertaining regular second appeal, is involved herein, so as
to exercise appellate jurisdiction under Section 41 of the Punjab Courts Act
read with Section 100 of Civil Procedure Code.
13. Admitted position remains that the revenue records as on today
are still under adjudication as the revision is pending. Pendency thereof, at
this stage, is no ground to interfere in the findings rendered by the Courts
below. Resultantly, both the impugned judgments and decrees passed by
learned Courts below are upheld.Appellants are at liberty to institute, if so
advised, fresh proceedings in accordance with law after getting the revenue
records corrected.
14. Pending application/s, if any, shall also stand disposed of.
15. No order as to costs.
February 11, 2022 (ARUN MONGA)
gurpreet JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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