DILBAG MASIH Vs. KASHMIR SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated November 19, 1999, passed by the Additional District Judge, Amritsar, whereby order dated August 2, 1999 passed by the Additional Civil Judge (Senior Division), Ajnala, accepting the application filed by the plaintiff-respondent No. 1 under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') and dismissing the application under Order 39 Rules 1 and 2 of the Code filed with counter-claim by the defendant-petitioners and defendant-respondent No. 2 thereby restraining the defendants from interfering in the possession of the plaintiff-respondent No. 1 over the suit land except in due course of law, was affirmed.

(2.) PLAINTIFF -respondent No. 1 filed a suit for permanent injunction against the defendant-petitioners and defendant-respondent No. 2 restraining them from interfering in his possession over the suit land measuring 3 kanals situated in Village Chamiari, tehsil Ajnala District Amrtisar. The case set up by the plaintiff was that the suit land was lying vacant and he took possession of the same on April 13, 1983. The land being banjar and uneven, was levelled by him after incurring huge expense and the same was made fit for cultivation by him. His possession over the suit land was adverse, continuous, uninterrupted and hostile not only to the knowledge of the defendants but against the whole world and, thus, he had acquired ownership of the suit land. The defendants, who had no interest or title in the suit land, threatened to interfere in the possession of the plaintiff over the suit land forcibly. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code was also filed by the plaintiff. The suit as well as the said application were contested by the defendants. In their joint written statement, it was pleaded by them that the suit land was previously owned by the plaintiff, but he sold the same to Janak Rani wife of Amrit Pal, Prahaba Rani wife of Ramesh Kumar and Narinder Kumar son of Sardari Lal as per sale deed November 29, 1982 and possession of the suit land was also delivered to the vendees at the time of execution of the sale deed. Thereafter, Janak Rani, Prabha Rani and Narinder Kumar sold the suit land to defendant-petitioner No. 1 Dilbag Masih for a consideration of Rs. 33,000/- as per sale deed dated July 7, 1999. It was further maintained by them that the suit land is a Gair Mumkin brick kiln as per entries in the revenue record. The stand of the plaintiff-respondent No. 1 that he had made the land fit for cultivation is without any basis. After the sale of the suit land to defendant-petitioner No. 1, mutation No. 5927 was also sanctioned in his favour and entry to this effect was incorporated in the Jamabandi for the year 1997-98. At the same time, as a counter claim, the defendants claimed relief of permanent injunction restraining the plaintiff, his agents, attorneys, relatives etc. from interfering in their possession over the suit land. In the replication filed by the plaintiff, he admitted that he had sold the land to Janak Rani etc., but denied that he had delivered possession of the land to the vendees at the time of execution of the sale deed dated November 29, 1982. He expressed want of knowledge in respect of the suit land having been sold by Janak Rani etc. to defendant-petitioner No. 1 and, according to him, he continues to be in possession of the suit land.

(3.) THE learned counsel representing the petitioner-defendants sought to persuade this Court to set aside the impugned orders primarily on the ground that both the Courts below have overlooked not only the conflicting stand taken by the plaintiff in the plaint and replication filed by him, but also admission of the plaintiff recorded in the sale deed dated November 29, 1982 regarding delivery of possession of the suit land to the vendees at the time of registration of the sale deed and, thus, committed illegality patent on record. It cannot be denied that the plaintiff in the plaint had taken a definite stand that he had taken possession of the suit land which was banjar and uneven on April 13, 1983 and thereafter he made it fit for cultivation. He claimed his adverse possession over the suit property from that day onwards. When this plea of the plaintiff was controverted by the defendants in their written statement pointing out that the plaintiff himself had sold the suit land to Janak Rani etc. as per sale deed dated November 29, 1982 and had also delivered possession of the land to them, the plaintiff took a somersault in the replication by admitting the factum of sale of the suit land to Janak Rani etc. but sought to maintain that he continued to be in possession of the suit land. These pleadings leave no manner of doubt that the plaintiff has not come to the Court with clean hands. It is totally not acceptable that after he had sold the suit land to Janak Rani etc. on November 29, 1982, he could occupy the vacant land on April 13, 1983. There is a definite attempt on the part of the plaintiff to co-relate his possession over the suit land after the execution of the sale deed in order to show his adverse possession over the suit land. Both the Courts below have mainly rejected the stand of the defendants on the ground that in the Jamabandi pertaining to the year 1997-98 and khasra girdawaries from 1983-84 onwards upto date, possession of the plaintiff is recorded over the suit land as Gair Marusi whereas names of Janak Rnai and other vendors of defendant-petitioner No. 1 are recorded in column No. 4 of the Jamabandi for the year 1997-98 on the basis of mutation No. 5927 sanctioned in favour of defendant-petitioner No. 1. Considering these entries against the defendants, it was concluded that possession of the suit land could not be delivered by the plaintiff to Janak Rani and others or by Janak Rani and others to defendant-petitioner No. 1 despite the fact that attention of the trial Judge was drawn to the recitals contained in the sale deed dated July 7, 1999 regarding delivery of possession of the suit land by the vendors of defendant No. 1 i.e. Janak Rani and others to defendant-petitioner No. 1. The same were brushed aside on the plea that they cannot override the entries in the revenue record for the purpose of adjudication of the application and determination of the necessary ingredients for the grant of temporary injunction. These findings were confirmed by the first appellate Court. Manifestly, both the Courts below have not given due weight and consideration to the facts of the present case particularly to the conflicting stand of the plaintiff, namely, asserting his title to the suit land at the time when he executed sale deed dated November 29, 1982 and thereafter setting up his adverse possession over that very land to the date subsequent thereto. Both the courts below have also ignored the fact that on the basis of the sale deed dated July 7, 1999, executed in favour of the defendant-petitioner No. 1, mutation No. 5927 had not only been sanctioned, but in the Jamabandi for the year 1997-98, this mutation had been incorporated. In the face of the recital regarding the delivery of possession in the sale deed executed by the plaintiff in favour of Janak Rani and others on November 29, 1982, the plaintiff cannot be heard to say that the continues to be in possession of the suit land. It is not a case where the plaintiff has alleged in the plaint, in the first instance, that in the sale deed dated November 29, 1982, it has been erroneously recorded that he had delivered possession of the suit land to Janak Rani etc. Even in the replication filed by the plaintiff, no such plea was taken. Therefore, for the purpose of adjudication of the application for temporary injunction, these recitals with regard to the delivery of possession of the suit land by the plaintiff at the time when he sold the same to Janak Rani and others cannot be ignored. Consequently, orders passed by both the Courts below have to be set aside.