Vs. Nihal Singh  Insc 556 (18 October 2001)
Special Leave Petition (civil) 20399 of 2000
defendant has filed this appeal challenging the judgment of the High Court of
Punjab and Haryana dismissing the second appeal filed by him and confirming the
judgment and decree passed by the Courts below decreeing the suit.
respondent herein filed the suit for a decree of permanent injunction
restraining the appellant from dispossessing him from the suit land described
in para No.1 of the plaint and from interfering with possession of the
plaintiff over the suit land bearing khewat No.269 khata No.373 Rect No.77 Killa
No.2 (7-11), 3(7-11), 8(8-0), 9(8-0) total measuring 31 Kanals 2 marlas
situated within the revenue estate of village Harsaru tehsil and district Gurgaon,
in any manner without notice to and knowledge of the plaintiff. In the
alternative the plaintiff prayed that in case the defendant succeeds in
dispossessing him from the suit land during pendency of the suit a decree for
mandatory injunction for restoration of possession of the suit land may be
granted in his favour.
case of the plaintiff, sans unnecessary details, was that he got the suit land
under a lease for a period of 99 years from the defendant vide the registered
lease deed dated 21.6.1971 and since then he is in possession of the property.
case pleaded by the defendant on the other hand was that he had purchased the
suit land from one Mohan Lal under the registered sale deed dated 23.6.1971 and
in order to save the land from any pre-emptive claim of relations of the vendor
he had executed the lease deed in favour of the plaintiff who is his
brother-in-law. According to the defendant the said lease was a paper
transaction; it was not given effect to and he (defendant) remained in
possession of the suit land all along.
trial court considering the pleadings of the parties framed several issues of
which issue No.1 is whether the plaintiff is a pattadar of the agricultural
land mentioned in paragraph 1 of the plaint; and if so to what effect ? The
issue No.2 was whether the plaintiff is entitled to the relief of injunction as
appreciation of the oral and documentary evidence led in the case the trial
court held that the defendant purchased the suit land including the tube-well
existing thereon by the sale deed dated 23.6.1971 and he is the owner of the
same; whereas possession of the plaintiff is as a lessee and thus answered both
the issues in favour of the plaintiff and against the defendant. The trial
court decreed the suit for injunction and restrained the defendant from
interfering with possession of the plaintiff over the suit land except in due
course of law.
appeal by the defendant the District Judge, Gurgaon on a fresh assessment and
appreciation of the oral and documentary evidence led by the parties held that
possession of the plaintiff over the suit land is recorded in the entries of
the Jamabandi and Khasra Girdawari upto the period, Khariff 1987 while the
present suit was instituted on 22.3.1988. The lower Appellate Court further
held that from the evidence adduced on record it was fully established that the
plaintiff had not surrendered his possession nor given up his tenancy rights in
favour of the defendant on the basis of the cancellation deed Exh.DW2/1 as
claimed by the defendant; rather from the evidence it is established that he
continuously remained in possession of the suit property from the date of
execution of the lease deed. The lower appellate court upheld the findings of
the trial court on all issues and dismissed the appeal.
second appeal filed by the defendant the High Court took note of the
contentions raised on behalf of the appellant that since the plaintiff was not
in actual physical possession of the suit land on the date of the institution
of the suit, the suit for injunction was not legally maintainable. Judging the
contention in the light of the concurrent findings recorded by the Courts below
which were based on the revenue records and the oral evidence led in the suit,
the High Court declined to interfere with the judgment and decree passed by the
Courts below and dismissed the second appeal.
T.L. Viswanatha Iyer, learned senior counsel appearing for the appellant
reiterated the contention that since the plaintiff was not in actual physical
possession of the suit land the suit for a decree of permanent injunction simplicitor
was not maintainable. Elucidating the point learned senior counsel submitted that
the defendant after purchasing the suit land had constructed a house on a
portion of it and had dug a tube-well thereon. In such circumstances, the
learned counsel submitted, it cannot be held that the plaintiff was in
possession of the suit land.
question of possession of the suit land is essentially one of fact. As noted
earlier, the trial court on appreciation of the oral and documentary evidence
on record declined to accept the case of the defendant that the lease deed
executed by him in favour of the plaintiff was a mere paper transaction and
that he (defendant) had remained in possession of the property all along. The
trial court recorded a positive finding based on the revenue records and the
oral evidence led by the plaintiff that he had come into possession of the land
under the lease deed and continued to possess the same all along. The lower
appellate court, which is the final Court of fact, confirmed the finding of the
trial court regarding plaintiffs possession over the suit land and upheld the
judgment of the trial court decreeing the suit. Before the High Court the
contention that was raised related to the question of possession. There was
hardly any scope for the High Court to interfere with the finding of possession
concurrently recorded by the Courts below within the limited parameters of
section 100 of the Civil Procedure Code. As the second appeal did not involve
any substantial question of law the High Court rightly dismissed the same.
result, this appeal being devoid of merit, is dismissed. No costs.