Amarjit Singh vs Gurnam Singh and Others

L.N. Mittal, J.—By this common judgment, I am disposing of two appeals i.e. RSA No. 3980 of 2008 and RSA No. 3984 of 2008.

Amarjit Singh appellant filed suit against respondents No. 1 to 3 for permanent injunction alleging that appellant is owner in possession of the suit land comprised of khasra No. 677/1 (0-2) situated in village Kaboolpur. Appellant''s uncle Daya Singh was previously owner in possession thereof. He was issueless. He gifted suit land alongwith other land to the appellant vide registered gift deed dated 15.2.1968 and since then the appellant is owner in possession of the suit land. Respondents No. 1 to 3 without having any right, title or interest in the suit land threatened to dispossess the appellant therefrom forcibly and illegally. Accordingly, appellant sought permanent injunction restraining respondents No. 1 to 3, (defendants in the said suit) from dispossessing the appellant from the suit land forcibly and from interfering in his possession thereon in any manner.

Respondents No. 1 to 4 filed a separate suit against the appellant alleging that appellant''s uncle Daya Singh was owner of land of khasra Nos. 813, 539 and 676/1 as per jamabandi for the year 1957-58, but in subsequent jamabandis, due to clerical error of revenue officials, khasra No. 676/1 was wrongly recorded as 677/1 but in fact no khasra No. 677/1 existed at the spot as per masavi and Daya Singh was owner in possession of khasra No. 676/1 but due to clerical error in jamabandi, Daya Singh executed gift deed of khasra No. 677/1 instead of 676/1 in favour of the appellant. On the other hand, Sunder Singh relative of respondents No. 1 and 2 gifted his 1/3rd share in 45 bighas 18 biswas land of khasra Nos. 811, 376, 382, 383, 375, 729, 737, 544, 650, 695, 520 and 677 in favour of Santa Singh father of respondents No. 1 and 2 vide registered gift deed dated 22.3.1967. Accordingly, Santa Singh took possession of the gifted land including land of khasra No. 677 and after his death respondents No. 1 and 2 came in possession of the gifted land alongwith other co-owners. The mistake in khasra number mentioned above came to notice of respondents when the appellant filed suit against respondents No. 1 to 3. Accordingly, respondents in their suit sought declaration that the appellant is not owner of khasra No. 677/1 (0-2) and entries in jamabandis since 1961-62 onwards are liable to be corrected to make it khasra No. 676/1(0-2). Respondents also sought relief of joint possession of land of khasra No. 677/1.

Respondents No. 1 to 3 in their written statement filed in the suit instituted by the appellant took the same stand as mentioned in the preceding paragraph whereas the appellant in his written statement filed in the suit instituted by respondents No. 1 to 4 took the same stand as taken by appellant in his own suit.

Learned Additional Civil Judge (Senior Division), Rajpura vide common judgment and separate decrees dated 23.1.2008 dismissed the suit filed by the appellant and decreed the suit filed by the respondents. Feeling aggrieved, the appellant preferred first appeals in both the suits. Learned Additional District Judge, Patiala disposed of both the appeals by common judgment and separate decrees dated 4.9.2008 and dismissed both the appeals. Feeling aggrieved, appellant Amarjit Singh has preferred the instant two second appeals.

I have heard learned Counsel for the parties and perused the case file.

Respondents produced masavi Ex. D2 of the village, jamabandi for the year 1953-54 Ex. D5 and also jamabandi for the year 1958. According to these documents, no khasra No. 677/1 existed in the village. On the other hand, there were khasra Nos. 677 and 676/1. Appellant''s uncle Daya Singh was owner in possession of khasra No. 676/1 whereas Sunder Singh predecessor of respondents No. 1 and 2 was owner in possession of khasra No. 677. However, in jamabandi for the year 1961-62, Daya Singh was recorded to be owner in possession of khasra No. 677/1 and the same entry was repeated in subsequent jamabandis. On the basis of the said entries, Daya Singh executed gift deed of khasra No. 677/1 in favour of appellant. However, from masavi Ex. D2, jamabandi Ex. D5 for the year 1953-54 and jamabandi for the year 1958, it becomes manifest that Daya Singh was owner in possession of khasra No. 676/1 and no khasra No. 677/1 existed at all and there was khasra No. 677 but in subsequent jamabandis, there was mistake or error recording Daya Singh as owner in possession of khasra No. 677/1 instead of khasra No. 676/1. The said error becomes apparent from the perusal of the material documents mentioned above. Consequently, case of the respondents has been rightly found to be proved by both the courts below and case of the appellant that he is owner in possession of khasra No. 677/1 is not proved because in fact the said khasra number does not even exist. On the other hand, there is khasra No. 677 and khasra No. 676/1. Appellant is owner in possession of khasra No. 676/1 whereas respondents are owners of khasra No. 677. Consequently, respondents have rightly been granted relief of joint possession of land of khasra No. 677.

Counsel for the appellant vehemently contended that the appellant is recorded owner in possession of land of khasra No. 677/1 and prior to him his predecessor Daya Singh was recorded owner in possession thereof in jamabandis since 1961-62 onwards and therefore, appellant is proved to be owner in possession of land of khasra No. 677/1. The contention although apparently attractive cannot be accepted. As noticed hereinabove, khasra No. 677/1 is not even in existence. On the other hand, khasra No. 677 is in existence with which the appellant has no concern nor his predecessor Daya Singh had any concern. Error in jamabandi for the year 1961-62 (which was also carried forward in subsequent jamabandis) is apparent when examined with reference to masavi and jamabandi for the year 1953-54 and for the year 1958. Consequently, the appellant cannot succeed and there is no infirmity in the concurrent finding of the courts below.

Learned Counsel for the appellant contended that appellant admittedly is in possession of land of khasra No. 677 and therefore, is entitled to injunction prayed for by him. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in the case of Pinninti Kistamma and Ors. v. Duvvada Parsuram Chowdary and Ors. AIR 2010 SCW 3967. The contention is completely misconceived and misplaced. The appellant would have been entitled to injunction against his dispossession except in due course of law on the basis of his possession. However, in the instant case, respondents who are proved to be owners of khasra No. 677 have already sought the relief of possession in due course of law by filing separate suit which has been decreed. Consequently, the appellant cannot be granted any injunction when decree for possession is being passed in favour of the respondents who are owners of the said land.

For the reasons hereinabove, I find no merit in these appeals. Concurrent finding of fact recorded by both the courts below does not suffer from any illegality or perversity. The said finding is based on proper appreciation of evidence and is fully justified and supported by cogent reasons. No question of law much less substantial question of law arises for determination in the instant second appeals. Accordingly, both the appeals are dismissed.