The failure to prove possession and the inability to rely solely on revenue records as conclusive proof influenced the court's decision in upholding the plaintiffs' claim.

JUDGMENT

Amit Rawal J. (Oral) - C.M. No. 13925-C of 2010

The application for impleading the legal representatives of deceased-Karan Singh is allowed subject to all just exceptions and the legal representatives are ordered to be brought on record.

RSA No. 4702 of 2010

2. The appellants-defendants are in regular second appeal against the concurrent finding of fact whereby the suit of the respondents-plaintiffs claiming declaration that the plaintiffs are owners in possession of the suit property as described in the plaint and permanent injunction on the premise that the defendants did not have any concern with the suit land by challenging the revenue entry to be illegal and null and void, has been decreed by both the courts below.

3. Before adverting to the rival contentions of the parties, it would be apt to give factual matrix involved in the controversy as emanated from the pleadings of the parties. The respondents-plaintiffs instituted the aforementioned suit on the premise that father of the defendants namely Khubi son of Amit Chand was in cultivating possession of the land as Muzara/tenant but failed the pay the lagan, necessitating the plaintiffs to institute a petition under Section 9 and 14(A) of the Punjab Security of Land Tenure Act before the Assistant Collector, Bhiwani. The aforementioned petition was decided on 30.06.1980 whereby Khubi was directed to hand over the vacant possession of the suit land. After ejectment order, Khubi cleverly left the physical possession of the suit land after paying Rs. 1000/- to the plaintiffs and gave affidavit in that regard. But in 1993, Rajpal Singh, one of the co-sharers and attorney holder of all the plaintiffs, gave suit land to the Forest Department for plantation of trees in five acres of land. The copy of the affidavit of Khubi was given to the Patwari for making necessary entries in the revenue record but the same was not done and the entries remained in favour of Khubi and on his demise in favour of his legal representatives. It is in that backdrop of the matter, the suit aforementioned was filed.

4. Upon notice, the appellants-defendants appeared and contested the suit on the ground that they have already filed a suit for claiming declaration of ownership on the ground of occupancy tenants, which was pending before the Court of Assistant Collector and filing of the aforementioned suit was a counter-blast. In fact, Khubi had been paying rent of the land but the present plaintiffs were not issuing any receipt. The suit was not maintainable on the premise that owing to the passage of time, the defendants have become occupancy tenants.

5. Since the parties were at variance, the trial Court framed the following issues:-

"1. Whether the plaintiffs are owner in possession of the suit land and entry of original revenue records are wrong, illegal and null and void and are not binding the right of the plaintiffs on the ground alleged in the plaint? OPP

2. Whether the defendants are liable to be restrained from interfering in the possession of the plaintiffs over the suit land?

3. Whether the suit is not maintainable in the present from?

4. Whether the plaintiffs are stopped by own act and conduct from filing the present suit? OPD

5. Relief."

6. The plaintiffs in support of their case, examined Subhash Chander Clerk as PW-1, who produced the file of the ejectment suit bearing No.11 dated 25.10.1977, PW-2 Sher Singh Range Forest Officer who deposed that Rajpal son of Gaze Singh, one of the cosharer, had given 17 hectare of land to the Forest Department for cultivation, PW-3 Jagpal, PW-4 Rajpal Singh, one of the co-sharer and attorney holder of all the plaintiffs, PW-5 Satyawrat Advocate, PW-6 Yashapl Chand Jain and brought on record documents Ex.P1 to Ex.P22.

7. The defendants examined DW-1 Umed Singh, DW-2 Attar Singh, DW-7 Balwan, who did not come forward for cross-examination and brought on record jamabandies for the year 1998 to 2003 and khasra girdawaries as Ex.D1 to D7. The tri