KARNAIL SINGH Vs. GURBACHAN SINGH & OTHERS

JUDGEMENT

(1.) This is defendants second appeal against whom the suit for the grant of the permanent injunction was dismissed by the trial Court, but decreed in appeal.

(2.) Gurbachan Singh, plaintiff-respondent, filed the suit for the grant of the permanent injunction restraining the defendants from interfering with his possession over the suit land. According to him, he was the owner in possession of the suit land and defendants Nos. 1 and 2 had no right or interest therein. As such, they be restrained from dispossessing him there from forcibly. The land was owned by Dora Singh and Kehar Singh, sons of Jaimal Singh. Kehar singh had died. He and defendants Nos. 4 and 5 were the heirs of the said Kehar Singh by virtue of the will dated June 22. 1973, executed by the deceased in their favour. Defendants Nos. 1 and 2 had no right or interest in the suit land. They intended to take forcible possession thereof; hence the suit. The suit was contested by Karnail Singh, defendant. He admitted that Kehar Singh and Zora Singh were the owners of the land, in dispute, but denied the other allegations made in the plaint. He alleged that Kehar Singh, deceased, was in exclusive possession of land measuring 40 kanals 16 marlas, as detailed by him in the written statement. Kehar Singh was getting the land cultivated from Sawan Singh, defendant. Kehar Singh died on November, 6, 1975. He executed a valid will in favour of defendant No. 2 on April 1, 1964. He never executed a will in favour of the plaintiff and defendants Nos. 4 and 5. After his death, Sawan Singh became the owner in possession of the land left by Kehar Singh by virtue of the will dated April 1, 1964, executed in his favour by him. He alleged will in favour of the plaintiff was said to be a forged and fabricated document. The trial Court found that the plaintiff had failed to prove himself to he the owner in possession of the suit land. The will set up by him in his favour was found to be a forged and fabricated document whereas the will set up by the defendant was held to be a valid one. in view of these findings, the plaintiff's suit was dismissed. In appeal, the learned additional District Judge affirmed the finding of the trial Court as regards the will alleged to have been executed by Kehar Singh in favour of the plaintiff and defendants Nos. 4 and 5. However, he reversed the finding of the trial Court in regard to the possession of the suit land and held that though the plaintiff was not entitled to the relief of declaration as prayed for, yet he was entitled to the relief of injunction restraining the defendant from interfering with his possession over the suit land otherwise than in due course of law. In view of this finding, the suit for permanent injunction was decreed. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

(3.) The learned counsel for the appellants contended that once it was found that the plaintiff had failed to prove himself to be the owner of the suit land, he was not entitled to the discretionary relief of injunction. It was also argued that the finding of the trial Court with respect to the possession of the defendants has been reversed by the lower appellate Court on surmises and conjectures. The evidence relied upon by it in this behalf was inadmissible. The learned counsel also contended that the plaintiff had himself moved an application before the lower appellate court for withdrawing the suit in order to file a fresh suit for possession. The said application was allowed by the lower appellate Court. However, the said order passed by it was set aside by this Court in revision. Thus, argued the learned counsel, the plaintiff himself admitted that he was not in possession of the suit land and on that account as well, the finding of the lower appellate Court was wrong and illegal.