JUDGMENT
M.M. Kumar, J.
1. This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 10.8.2002 passed by the Additional District Judge, Sonepat allowing the appeal of the defendant-respondents in which the order dated 3.4.2002 was challenged. In her order dated 3.4.2002, the Civil Judge (Senior Division), Sonepat has accepted the application of the plaintiff-petitioner by holding that prima facie case for grant of injunction is made out. It was held that the plaintiff petitioner would suffer an irreparable loss if defendant-respondents are not restrained from interfering in his peaceful possession s well as work of construction which the plaintiff-petitioner wants to carry on the suit land.
2. Brief facts of the case necessary to decide the controversy raised in the present revision petition are that the plaintiff-petitioner has filed a suit for permanent injunction restraining defendant respondents from interfering in the peaceful possession of the suit land and from dispossessing him. A further prayer made was that defendant-respondent No. 1 be restrained from causing any obstruction in the construction work over the plot in dispute claiming that he is owner in possession of the disputed plot. The basis of the claim set up by the plaintiff-petitioner was that registered sale deed dated 17.7.2000 executed by one Shri Deepak Khurana defendant-respondent No.2 in favour of the plaintiff petitioner for a consideration of sum of Rs. 1,29,000/-. It is further claimed that mutation No. 9768 has also been sanctioned in favour of the plaintiff-petitioner. Alongwith the suit an application under Order 39 Rules I and 2 of the Code supported by an affidavit of the plaintiff-petitioner was filed for issuance of interim directions. A copy each of site plan, sale deed dated 17.7.2000 mutation bearing No. 9768, certified copy of the statement dated 26.11.1986 made in appeal No. 22/13 of 1985 titled as Krishan Lal v. Raj Singh and Anr., the decree sheet, certified copy of the judgment dated 26.1.1986, report of Nishandehi, the allotment order No. 16, jamabandies for the years 1976-77 to 1996-97, photo copy of the allotment order dated 30.3.1968 made by the Punjab Wakf Board in favour of defendant-respondent No.1I were also filed.
3. The case pleaded by defendant-respondent No. 1 is that the disputed land measuring 132.5 sq. yards is part of Khasra No. 3494. Patti Musalmanan, Sonepat. The defendant-respondent No. l has taken the plot measuring 132.5 sq. yards on lease from the Punjab Wakf Board claiming that the defendant-respondent is in possession or the plot in dispute as a lessee. The defendant-respondent has asserted that rent from the period 1.3.2001 to 31.1.2002 has been paid to the Punjab Wakf Board and the lease deed (Pat-tanama) has been got renewed by him on 1.3.2001. It has further been asserted that the plot in dispute has been on lease with defendant-respondent No. 1in the earlier years also. As regards the sale deed set up by the plaintiff-petitioner, the defendant-respondent has controverted the fact by stating that the sale deed is absolutely a sham transaction. Substantiating his plea, it has funher been averred by the defendant-respondent that Krishan Lal son of Sant Lal and Deepak Khurana (vendor of the plaintiff-petitioner) son of Krishan Lal and Rakesh son of Krishan Lal filed a suit against one Raj Singh, minor son of Rattan and another for possession of plot measuring 250 sq. yards out of Khasra No. 3494 in the year 1980 claiming that they were in possession. The suit was dismissed by the then Senior Subordinate Judge. Sonepat on 28.1.1985 holding that the entire khasra No.3494 measuring 10 Bighas 04 Biswas was the Wakf property. It has further been submitted that predecessor-interest of the plaintiff-petitioner has not raised any boundary wall along the disputed plot which is claimed to have been raised by the defendant-respondent No.1. It has further been claimed that defendant respondent No. 1 is in possession of the plot for the last several years which is used for tethering his catties and storing fire wood and fodder in it. Challenging the title of the vendor of the plaintiff-petitioner Shri Deepak Khurana, defendant-respondent No. 1 asserted that no better title could be passed on’the vendee by the vendor. The vendor of the plaintiff-petitioner Deepak Khurana was a party in the previous suit which was filed by Krishan Lal, his father and his brother Rakesh, it is thus claimed that no possession of the plot has been delivered at the time of execution of the sale deed and, therefore, the plaintiff-petitioner cannot raise any construction over the site in dispute. In support of his claim, the defendant-respondent No. 1 tendered photo copy of the judgment dated 28.1.1985 passed in Civil Suit No. 178 of 1983 titled as Krishan Lal etc. v. Raj Singh etc., photo copy of the receipts of lease money, the lease order dated 30.3.2001, notification dated 17.4.1971. Jamabandies for the years 1917-18, 1938-39, 1939-43, 1946-47 and letter dated 16.11.1973 addressed by the Director Land Records Haryana to the Deputy Commissioner and Sub Divisional Officers/Tehsildars.
4. The plaintiff-petitioner succeeded in persuading the Civil Judge to issue interim directions in his favour accepting that Deepak Khurana, the vendor of the plaintiff-petitioner has become owner in possession of the land in dispute because of the decree passed by the Additional District Judge and secondly on the basis of entries in Jamabandies for the year 1976-77, 1981-82, 1986-87, 1991-1992 and 1996-1997.
5. However, on appeal filed by defendant-respondent No.1, the Additional District Judge reversed the order by holding that it cannot be concluded on the basis of the judgment dated 26.11.1986 passed by the Additional District Judge that the vendor of the plaintiff-petitioner Deepak Khurana has become owner and consequently in these circumstances no finding of possession could be recorded on the basis of Jamabandies. The finding of the Additional District Judge can be ascertained from the following paras;
“The plaintiff has alleged that he is in possession of the land in dispute and the defendant No. l be restrained from interfering in the same and raising construction thereupon. No doubt there is a recital in the sale deed executed in his favour by defendant Deepak Khurana that the possession of the land in dispute has been delivered to him. But this recital is not sufficient to presume the possession as opined by our Hon’ble High Court in (Puran and Anr. v. Chandan, 1975 P.L.J. 151). It is to be seen as per other evidence available on the file that whether he is in possession or not. It is not disputed that defendant No. 2 his brother and father filed a suit in the year 1983 for possession of the land falling in khasra No.3494. As already mentioned above, the question of ownership can be adjudicated upon after the evidence of both the parties, but this judgment clearly shows that in the year 1983, defendant No. 2 was
not in possession of the land in dispute. Their suit was dismissed but they preferred an appeal against that judgment in the year 1984 which was decided on 26.11.1986. For ready reference relevant portion of the judgment is incorporated as under:
“The statement of the parties has been recorded. The permission to compromise the matter on behalf of the minor was given to Sh. Om Parkash, attorney of Smt. Shanti, the guardian of the minor. Accordingly, the appeal is accepted and the suit for possession of the suit land filed by the appellants is hereby decreed. However, it is ordered that in case, the respondents pay a total sum of Rs. 15,000/- to the appellants, the same shall be deemed to have been dismissed. The appellants shall make payment in instalments of Rs. 2,000/- each in case of first seven instalments and Rs.1000/- in case of 8th instalment. The instalments shall be payable on 6 monthly basis starting from 1.3.1987. The first seven instalments of Rs. 2000/- each shall be payable on 1.3.1987, 1.9.1987, 1.3.1988, 1.9.1988, 1.3.1989, 1.9.1989 and 1.3.1990. The final instalment of Rs. 1000/- shall be payable on or before 1.9.1990. However, if the respondents pay the first five instalments of Rs. 2000/- each in time and pay Rs. 1520/-of the six instalment by due date then it shall be regarded as complete discharge of the payment the respondents are liable to pay. In case they fail to pay one instalment within the stipulated period, they shall be liable to pay the whole of the amount of Rs. 15,000/-. Further, in case they fail to pay any two instalments in time, the amount paid shall not be regarded as a valid discharge and the appellants shall be entitled to get possession of the suit property by way of execution after returning or depositing in the Court 80% of the amount that they might have received earlier. There shall be no order as to costs.”
From the perusal of the judgment, it is clear that at that time Raj Singh and Shanti were in possession of the land in dispute and they were allowed to retain the same on depositing Rs. 15000/-. Appellant/defendant No. 1 has alleged that the amount has been deposited as per orders but the plaintiff has not admitted the same to be correct. No doubt the details about the deposit are not filed. But even if for the arguments sake, it is presumed that no amount was deposited even then the possession of Deepak over the property in dispute is not proved. It is nowhere shown by the plaintiff or defendant No. 2 thai he ever filed the execution petition to take the possession of this land or by another mode he took possession of this property. So, in the absence of any evidence to this effect it cannot be presumed that Deepak was in possession of the land in dispute when it was sold to the plaintiff, when the possession of Deepak is not established, it cannot be presumed that he delivered the possession of the land in dispute to the plaintiff. When the plaintiff is not in possession of the land in dispute there is no question of any interference therein or raising construction over the property in dispute. The learned trial Court fell in error while coming to the conclusion that the plaintiff is in possession of the land in dispute just on the basis of the entries incorporated in the jamabandies which cannot be believed, as already discussed above. It appears that the entries were incorporated in the jamabandi in a routine manner. Even otherwise they are incorporated for fiscal purposes and cannot be relied upon as opined by Hon’ble Supreme Court in Munshi Ram and Ors. v. Municipal Committee, Chhaharta, A.I.R. 1979 S.C. 1250, So, in these circumstances, the impugned order dated 3.4.2002 cannot be sustained and is liable to be set aside. So, these arguments are of no avail.”
6. I have heard Shri R.S. Mittal, learned Senior Counsel assisted by Ms. Ambika Luthra who has made two principal submissions. Firstly, that the judgment of the Additional District Judge, Sonepat dated 26.11.1986 rendered in the appeal would show that Deepak Khurana, the vendor of the plaintiff-petitioner was held to have a valid title to the suit land. His second submission is that a presumption of truth would attach to the entries made in the jamabandies. According to the learned counsel, the Additional District Judge has committed grave error in law by concluding that jamabandies cannot be
believed by stating that the entries were made in the jamabandi in a routine manner. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Durga v. Milkhi Ram 1969 P.L.J. 105 and argued that a presumption of correctness is attached to revenue entries and those entries are rebutta-ble. He has also placed reliance on another judgment of this Court in the case of Jai Ram v. Gram Panchayat Dehlaka and Ors. 1978 P.L.J. 43 to stress that one or two stray entries in khasra girdawaries may not establish the fact of possession but consistent entries in khasra girdawaries would show long standing possession.
7. I have thoughtfully considered the submissions made by the learned counsel and regret my inability to accept the same. The learned Additional District Judge has proceeded on the basis of the fact that the plaintiff-petitioenr has not been able to establish the title of his vendor Shri Deepak Khurana. In any case it has been found that the vendor of the petitioner was not in possession in the year 1983 and the question of owner ship has to be adjudicated upon after recording evidence of both the parties. On the basis of the afore-mentioned categorical finding, the Additional District Judge further concluded that entries in Jamabandies for the years 1976-77, 1981-82, 1986-87, 1991-92 and 1996-97 cannot be accepted because it runs contrary to the finding recorded in the year 1983 that the vendor of the plaintiff-petitioner namely Deepak Khurana alongwith his brother and father were not found to be in possession. Thereafter the appeal although was accepted but no details were available in terms of the order passed in the appeal. Therefore in view of this finding, the plea of the plaintiff petitioner for issuance of interim directions was not accepted.
8. It is true that a prima facie presumption is attached to the entries made in the
Jamabandies and the proposition laid down in the judgment of the Supreme Court in the
case of Durga (supra) cannot be disputed. However, what needs to be examined is as to
whether in the absence of clear evidence of possession and title such entries could constitute the basis for concluding that the plaintiff-petitioner is in possession. The vendor
could pass to his vendee a title not better than his own title or rights better than his own
rights. Therefore, once the vendor of the plaintiff-petitioner was not in possession it re
mains unexplained as to how entries in the Jamabandies have been incorporated showing
that the plaintiff-petitioner is in possession. Therefore, the view taken by the Additional
District Judge that it is not believable that vendor of the plaintiff-petitioner is owner in
possession cannot be taken as suffering from any legal flaw. Therefore, the discretion
exercised by the Additional District Judge is in accordance with law and it does not call
for any interference under Section 115 of the Code. The revision petition is thus liable
to be dismissed. 9. For the reasons recorded above, this petition fails and the same is
dismissed. However, any observation made in the preceding paras shall not be construed
as an expression of opinion on merits of the case.