Punjab-Haryana High Court
Natha Singh vs Ram Singh on 18 March, 2024
Neutral Citation No:=2024:PHHC:042459
Neutral Citation No. 2024:PHHC:042459
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
137
RSA-1077-1993 (O&M)
Date of decision: 18.03.2024
NATHA SINGH THROUGH LRS ......Appellant
VERSUS
RAM SINGH THROUGH LRS .......Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present: - Ms. Sonia Mittal, Advocate for
Mr. R.P.S. Cheema, Advocate
for the Appellant
(Through Vide Conference).
Mr. Pawan Bansal, Advocate
for the respondent.
*****
VINOD S. BHARDWAJ, J. (Oral)
CM-2662-C-2024
The present application has been filed under Order 22 Rule 4
read with Section 151 of the Code of Civil Procedure for bringing on record
the legal representatives of deceased Ram Singh-plaintiff-respondent.
Application is allowed as prayed for subject to all just
exceptions and legal heirs as mentioned in para 3 of the application are
impleaded as party, however, the same shall be for the purpose of pursuing
the present appeal only and without prejudice to the rights of any third
person.
Amended Memo of parties is taken on record.
1 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -2-
Registry is directed to tag the same at appropriate place.
RSA-1077-1993
1. Defendant is in an appeal against the judgment passed by the
Court of Senior Sub Judge, Bathinda in Civil Suit No. 441 of 21.07.1987
decided vide judgment and decree dated 18.03.1989 as well as the
subsequent dismissal of the appeal by the Additional District Judge,
Bathinda in Civil Appeal No. 99 of 27.04.1989 vide judgment and decree
dated 28.07.1992.
2. Briefly summarized facts of the case are that respondent-
plaintiff had instituted the Civil Suit for permanent injunction for restraining
the appellant-defendant from taking forcible possession of land measuring
24 kanals comprising Khasra Nos. as detailed in the head note of the plaint
and situated within the revenue limits of Village Seikhu.
3. The respondent-plaintiff claimed to be in possession of the suit
land as a 'gair marusi tenant' while the appellant-defendant was the owner
of the suit land which was mortgaged, without possession, in favour of
Banta Singh and Santa Singh. The mortgagees made an attempt at seeking
forcible possession of the suit land, however, a Civil Suit was filed by the
respondent-plaintiff against the mortgagees, which was decreed on
19.03.1982. Thereafter, the owner/appellant-defendant initiated attempts at
seeking forcible possession of the land from the respondent-plaintiff
whereupon the present Civil Suit No. 441 of 21.07.1987 was instituted.
4. A Written statement had been filed by the appellant-defendant
raising various objections including that the respondent-plaintiff had no
locus standi to file the said suit alongwith objection as regards the
2 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -3-
maintainability of the suit and also on account of non-joinder of the
necessary parties. On merits, it was denied that the respondent-plaintiff was
in possession over the suit land and the appellant-defendant claimed to be in
a settled and exclusive possession of the suit land.
5. On the completion of pleadings, the following issues were
framed.
1) Whether the plaintiff is in possession of the disputed
land? OPP.
2) Whether plaintiff is entitled to injunction prayed for?
OPP
3) Whether plaintiff has no locus standi to file the suit?
OPD
4) Whether the suit is the present form is not maintainable?
OPD
5) Whether suit is bad for non-joinder of necessary parties?
OPD
6) Relief.
6. The respondent-plaintiff appeared as witness and corroborated
his possession from the revenue record. Ex.P4 was the Copy of Jamabandi
for the year 1982-83 wherein he was recorded to be in possession of the land
as gair marusi. The said entry was also carried forward in the Khasra
girdawari for the crops from Kharif 83 to Rabi 87. The possession of land
in favour of the respondent-plaintiff was thus reflected in the revenue record.
The judgment and decree in the Civil Suit filed by the respondent-plaintiff
against the mortgagees Banta Singh and Santa Singh were also proved on
record as Ex. P1 and the decree was Ex. P2.
7. It was also recorded by the Senior Sub Judge, Bathinda that no
evidence was however led by the appellant-defendant to rebut the evidence
3 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -4-
adduced by the respondent-planitiff other than his oral testimony claiming
possession of the suit land. It was noted that the appellant-defendant had
applied for correction of the Khasra Girdawari for the crop Rabi 87 and
Kharif 87, but the same was dismissed by the Assistant Collector, 2nd Grade
on 17.05.1988. He had also adduced copy of FIR (Ex. D1) dated 13.06.1987
lodged against him by the respondent-plaintiff under Section 440/447 IPC
pertaining to criminal trespass over the land, however, it was noted by the
Court that even in the said FIR it was not recorded that possession had been
taken away from respondent-plaintiff. A trespass cannot ipso facto be
deemed as having been divested of possession. The appellant-defendant was
thus found deficient in adducing evidence on the basis whereof, he could be
deemed to be in possession of the suit land even though his title was not a
subject matter of dispute. It was recorded by the Senior Sub Judge, Bathinda
that the possession of the suit land, under such circumstances, can only be
taken by appellant-defendant by following due process of law since the
respondent-plaintiff successfully discharged his burden as being in
possession of land as 'gair marusi'.
8. Aggrieved of the aforesaid judgment and decree, an appeal was
filed before the District Judge, Bathinda. Upon consideration of the
arguments advanced on behalf of the parties, the learned Additional District
Judge, Bathinda dismissed the said appeal vide his judgment dated
28.07.1992. Hence the present appeal.
9. Learned counsel appearing on behalf of the appellant-defendant
has vehemently argued that the trial Court as well as the Appellate Court
have failed to appreciate that there was no evidence on the basis whereof the
respondent-plaintiff could be established to have been inducted as a tenant.
4 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -5-
The revenue record relied upon by the respondent-plaintiff did not show any
entry as regards the rent that was being paid by the respondent-plaintiff and
in the absence of any rent payable, his status as a tenant could not have been
accepted by the trial Court as well as the First Appellate Court. It is thus
contended that in the absence of the pleading and evidence to reflect the
status of the respondent-plaintiff as a tenant, the Courts proceeded on a
wrong premise and hence erred in law and fact in decreeing the suit and
thereafter in dismissing the appeal preferred by the appellant-defendant.
10. Counsel for the respondent-plaintiff on the other hand has
contended that the revenue record established the petitioner to be in
possession as a tenant 'gain marusi'. There was no issue framed as to
whether the respondent-plaintiff had been inducted as a tenant or not or as to
whether the respondent-plaintiff has any protection under the Punjab
Tenancy Act or not. The appellant-defendant never raised any objection to
the issues framed or sought any framing of an additional issue. The revenue
record thus cannot be impeached on such a belated and afterthought
argument. It is submitted that there is a presumption of truth attached to the
revenue record and an issue as to whether a person had been inducted as a
tenant or not and as regards veracity of the revenue record is even though a
rebuttable presumption, however, the said burden was to be discharged by
the appellant-defendant. Other than a mere self serving statement, no other
evidence was led by the appellant-defendant before the Court. Besides,
proceedings were also initiated by the appellant-defendant for correction in
the Khasra Girdawari but the same were also dismissed by the Assistant
Collector and as such, the veracity of the Revenue record cannot now be
disputed at this stage. Once the possession of the respondent-plaintiff has
5 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -6-
been established on the land and there being no evidence on record to
suggest that the appellant-defendant had an established exclusive possession
of the land, the injunction has been rightly granted. It is further submitted
that appellant-defendant has however not been restrained from initiating
proceedings for seeking recovery of the said suit property and/or seeking a
correction/ejectment of the respondent-plaintiff as per law.
11. I have learned counsel appearing on behalf of the respective
parties and have gone through the judgments as well as the record.
12. Section 44 of the Punjab Land Revenue Act, 1887 attaches a
presumption to the record that has been prepared by the revenue authorities
in due course. Such a presumption is however not absolute and is rebuttable.
The burden however lay on the appellant-defendant to rebut the presumption
but no such evidence had been led by him. It is specifically recorded by the
Courts below that the Jamabandis as well as the Khasra Girdawaris from
Kharif 83 to Rabi 87 showed continuous occupation and possession of the
respondent-plaintiff over the suit land. A specific, finding on consideration
of the evidence, was recorded by the Courts to the effect that the respondent-
plaintiff successfully established his possession over the suit land for nearly
14-15 years and that a judgment and decree had already been passed in
favour of the respondent-plaintiff by the Civil Court in an attempt made by
Banta Singh and Santa Singh-mortgagees of the land to take forcible
possession. The Civil Court accepted the actual physical possession of the
respondent-plaintiff in the said suit as well and a judgment and decree was
passed against the mortgagees, restraining them from interfering in
possession of the respondent-plaintiff.
6 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -7-
13. Further, even as per the plaint, the respondent-plaintiff had
specifically claimed to be in continuous possession of the land since 1979
and in his capacity as a gair marusi tenant. While responding to the above
said specific plea, the appellant-defendant claimed his ownership but denied
the actual possession of the respondent-plaintiff of the suit land, however,
the pleading is not supported by any document. To the contrary the
document Ex. P5 i.e. the order passed by the Assistant Collector, 2nd Grade
has also been perused. In the said proceedings as well, the appellant-
defendant had sought correction of the entry made in favour of the
respondent-plaintiff in the Khasra Girdawari during the period Kharif 1987
to Rabi 1987. A finding was however recorded by the Assistant Collector
that the parties were granted sufficient opportunity to lead evidence to
establish their actual physical possession and that a report was also obtained
from the Halqa Patwari as recorded in his Roznamcha bearing No. 300 dated
24.04.1987 in which Harchand Singh Sarpanch, Ajaib Singh Nambardar,
Gurbachan Singh Nambardar got their statements recorded to the effect that
the respondent-plaintiff was in actual physical possession of the land. The
revenue authorities also visited the village for verification of the said fact,
however, the appellant-defendant did not appear before them on 11.05.1988
and that in jalsa-sare-aam, the mutation/entry in the Khasra Girdawari in
favour of respondent-plaintiff was reported to be correctly recorded. The
said order passed by the Assistant Collector on 17.05.1988 has not been set
aside and had attained finality as on the date when the instant proceedings
had been brought before the Civil Court.
14. Insofar as the contention of the appellant-defendant that the
respondent-plaintiff was not paying any rent is concerned, the said aspect is
7 of 8
Neutral Citation No:=2024:PHHC:042459
RSA-1077-1993 (O&M) -8-
required to be agitated by the appellant-defendant before a competent
authority under the Punjab Tenancy Act for seeking possession and to
contend that the respondent-plaintiff cannot be deemed to be a tenant and
that is not entitled to the protection under the Punjab Tenancy clause. No
such proceedings have seemingly been initiated by appellant-defendant.
Besides, no such issue has been framed in the present case, hence, there is no
occasion for this Court to rule on any such issue in favour of the appellant-
defendant. Consequently, the legality of the entry made cannot be examined
at this juncture by this Court in the absence of any issue framed or evidence
led by the respective parties.
15. The possession of the respondent-plaintiff having been
consistently upheld and affirmed by both the Courts as well as also by the
Revenue Court, so there is no basis for this Court to upset the said finding of
fact concurrently and repeatedly recorded in favour of the respondent-
plaintiff. There is no illegality or perversity in the judgment passed by the
Courts and no questions of law arise for determination.
16. The present appeal is accordingly dismissed at this stage. The
judgment and decree dated 18.03.1989 passed by the Senior Sub Judge,
Bathinda in Civil Suit No. 441 of 1987 as upheld by Additional District &
Sessions Judge, Bathinda, in Civil Appeal No. 99 of 27.04.1989 vide
judgment and decree dated 28.07.1992 is affirmed.
(VINOD S. BHARDWAJ)
MARCH 18, 2024 JUDGE
Vishal Sharma
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
8 of 8
