Dismissed

Mukhtiar Singh v. Mukhtiar Singh

Punjab & Haryana HC25 Nov 2014RSA/2528/2014

Case brief

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What is this about?

In this second appeal regarding a permanent injunction suit, the High Court dismissed the appeal. The court upheld lower courts' findings that the plaintiff established long possession since 1995-96. The correction of possession records during the suit was found inconsequential as the defendant failed to prove his claim with evidence.

What did the court decide?

The regular second appeal filed by the appellant-defendant was dismissed on 25.11.2014.

Mukhtiar Singh Vs Mukhtiar Singh — Partition | Punjab & Haryana HC (2014)

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RSA No.2528 of 2014 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No.2528 of 2014 (O&M) Date of decision: 25.11.2014

Mukhtiar Singh

... Appellant

Vs.

Mukhtiar Singh

... Respondent

CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

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Present:Mr. K.R.Dhawan, Advocate for the appellant.

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AMIT RAWAL J .

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This is defendant’s regular second appeal challenging the judgment and decree dated 14.05.2013 of the Civil Judge (Senior Division), Moga, whereby suit filed by the respondent-plaintiff for permanent injunction was decreed with costs and judgment and decree dated 01.02.2014 of the Additional District Judge, Moga, whereby appeal filed by defendant was dismissed.

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Suit of the plaintiff was for permanent injunction against the defendant on the premise that he is in possession since 1976. The property was owned by Central Government and due to his hard work, he made the land cultivable and no one had interrupted his peaceful possession. As per plaintiff, in the year 1989, his possession was being threatened by one Jagdish son of Amrit Lal and others which necessitated filing of civil suit and the said suit was decreed in his favour, wherein it was held that he is in possession of

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SAVITA DEVI KADIAN 2014.12.03 12:52 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.2528 of 2014 (O&M)

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suit land. Hence the present suit.

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Defendant contested the suit by raising objection in the written statement that the suit of the plaintiff was not maintainable and khasra girdawries reflecting possession of the plaintiff are incorrect. On merits, it was admitted that the suit land is owned by Central Government. However, remaining averments were denied and dismissal of the suit was prayed for.

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From the pleadings of the parties, following issues were

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framed:-

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1. Whether plaintiff is in possession of suit land, if so in which capacity? OPP

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2. Whether plaintiff is entitled to get relief of permanent injunction, as prayed for? OPP

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3. Whether suit of the plaintiff is not maintainable? OPP

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4. Relief.

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Both the parties brought on record oral and documentary evidence in support of their case. The trial Court found that defendant had taken possession of the suit land from Santokh Singh and has come up with the plea that khasra girdawri of the suit land was also corrected in his name, though, the appeal filed by the plaintiff was adjourned sine die. The trial Court while decreeing the suit of the plaintiff-respondent held that the plea of the defendantappellant of having taken the possession from Santokh Singh five

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SAVITA DEVI KADIAN 2014.12.03 12:52 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.2528 of 2014 (O&M)

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years ago did not inspire any truth much less supported by documentary evidence and rather found the plaintiff in uninterrupted possession since 1995-96 and correction of khasra girdawri by Assistant Collector Second Grade, Moga, did not have binding effect on the appeal filed.

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The appellant-defendant assailed the judgment and decree of the trial Court by filing a statutory appeal under Section 96 of the Code of Civil Procedure on various grounds. However, the lower Appellate Court being last Court of fact and law after examining the oral and documentary evidence came to the conclusion that plaintiff had been found in continuous possession of the suit land since 1995-96 and therefore, dismissed the appeal.

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Still not satisfied, appellant-defendant has filed the instant regular second appeal before this Court against the concurrent finding of fact rendered by both the Courts below.

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Sh. K.R.Dhawan, counsel appearing on behalf of the appellant submitted that during the pendency of the suit, khasra girdwari with regard to suit property was corrected in favour of the defendant-appellant and therefore, suit of the plaintiff-respondent could not have been decreed.

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I have heard learned counsel for the defendant-appellant.

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A person can protect his possession though he may not

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be the owner of the property. In order to protect his possession, the plaintiff has to establish the long possession on the suit land. This

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SAVITA DEVI KADIAN 2014.12.03 12:52 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.2528 of 2014 (O&M)

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proposition of law has been laid down by Hon’ble the Supreme Court in case of Rame Gowda (D) by LRs vs. Mr. Varadappa Naidu (D) by LRs and another 2004 (1) SCC 769. In the instant case also, both the Courts below have found that plaintiff-respondent was in established possession since 1995-96 over the suit land and the correction of khasra girdawri during the pendency of the suit could not be taken into consideration. Plaintiff-respondent had filed an appeal against the same which was pending adjudication. The plea of the defendant-appellant that he got possession of the suit land through Santokh Singh did not inspire truth nor the plaintiff-appellant led evidence in support of the same. Since the concurrent findings of the Courts below are based upon the finding of fact and law, therefore, no substantial question of law arise for adjudication of this Court. The instant case is a case of kind, where no substantial question, for determination of this Court arise.

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No other argument has been raised.

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The arguments raised in support of the appeal are relevant to the finding of the fact and not of any law and accordingly the appeal is dismissed.

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(AMIT RAWAL) JUDGE

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November 25, 2014 savita

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SAVITA DEVI KADIAN 2014.12.03 12:52 I attest to the accuracy and authenticity of this document High Court Chandigarh

Mukhtiar Singh v. Mukhtiar Singh

Case brief

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Mukhtiar Singh v. Mukhtiar Singh

Case brief

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