R.S.A.No. 3049 of 2008 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3049 of 2008 (O&M)
Date of decision: 27.8. 2009
Jasbir Singh
......Appellant
Versus
Commandant Border Security Force, Mamdot
and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.K.Kakkar, Advocate,
for the appellant.
****
SABINA, J.
Plaintiff Jasbir Singh filed a suit for permanent injunction,
which was dismissed by the Civil Judge (Jr.Divn.) Ferozepur vide
judgment and decree dated 10.3.2007. In appeal, the said judgment
and decree were upheld by the Additional District Judge, Ferozepur
vide judgment and decree dated 16.4.2008. Hence, the present
appeal.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
R.S.A.No. 3049 of 2008 (O&M) 2
“2. The bone of contention in this case is land
measuring 90 kanals 17 marlas, fully detailed and
described in the head note of the plaint. The said land is
the ownership of Provincial Government and is stated to
be in possession of the appellant/plaintiff. Khasra
Girdawari has also been corrected in his name by AC-II,
Ferozepur in the year 2002. His possession over the suit
land is continuous, peaceful and uninterrupted and he
had deposited Rs.11,550/- as Lagan/Rent in the
Government Treasury vide receipt dated 19.7.2004.
According to the appellant/plaintiff, defendant No.1 has
got no right or interest in the suit land, but he threatened
to dispossess him from the suit land, hence, the
appellant/plaintiff filed this suit for permanent injunction
for restraining the defendant from interfering in his
possession over the suit land.
3. Upon notice, the respondents/defendants appeared
and filed written statement wherein they denied
possession of the appellant/plaintiff over the disputed
land and have alleged that rather BSF has been in
possession over 193.5 acres of land including the suit
land since the year 1967 as lessee and they have paid lease
money to the Provincial Government. Further objections
taken against the suit were that the plaintiff has
R.S.A.No. 3049 of 2008 (O&M) 3no cause of action to file the suit; the suit is bad for non
joining of necessary parties and non service of notice
under Section 80 CPC.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to injunction as
prayed for? OPP
2. Whether the plaintiff is in actual physical and
legal possession of the suit land? OPP
3. If issue No.2 is proved, then whether the
defendants are interfering into the possession of the
plaintiff? OPP
4. Whether Rapat dated 22.10.2000 made by the
Assistant Collector Grade II vide which the khasra
girdawari were corrected in the name of the plaintiff is
legal and valid? OPP
5. Whether the suit filed by the plaintiff is bad
due to not impleading of necessary parties? OPD
6. Whether suit filed by the plaintiff is bad for
non serving of the notice under Section 80 CPC ? OPD
7. Relief. “
R.S.A.No. 3049 of 2008 (O&M) 4
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal deserves to be dismissed.
Admittedly, Provincial Government is the owner of the suit
land. Plaintiff as well as defendants claim possession over the suit
land. As per the revenue record i.e. copy of the jamabandi for the
year 1999-2000 (shown during the course of arguments by learned
counsel for the appellant), Border Security Force is reflected to be in
possession of the suit land. A perusal of the khasra girdawari Ex.P-2
(shown during the course of arguments by learned counsel for the
appellant) reveals that possession of the plaintiff is reflected on the
basis of order dated 22.10.2000. However, the said order was not
placed on record.
Learned Additional District Judge in the impugned
judgment has observed that the respondents had placed on record
Rapat No.267 dated 4.3.2005 as per which, the entry in the khasra
girdawari had been changed in the name of the plaintiff. Thus, the
alleged correction was made during the pendency of the suit and the
same could not be taken in consideration. The entry in the jamabandi
regarding possession is in favour of the Border Security Force. The
plaintiff, in these circumstances, was required to establish as to how
he came in possession of the suit land and in what capacity. In the
absence of the said evidence the Courts below had rightly held that
the plaintiff had failed to establish his possession over the suit
R.S.A.No. 3049 of 2008 (O&M) 5
property in dispute. The finding of the fact arrived at by the both the
Courts below in this regard calls for no interference by this Court in
appeal.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
August 27, 2009
anita