Ujjagar Singh & Ors. v. Karam Kaur & Anr.

CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.-

1.Whether reporters of local news papers may be allowed to see judgement ?

2. To be referred to reporters or not ?

3. Whether the judgement should be reported in the Digest ? Present: Mr. S.D. Sharma, Sr. Advocate with Ms. Bindu Goel, Advocate for the appellants. Mr. R.C. Setia, Sr. Advocate with Mr. Anish Setia, Advocate for the respondents. ... Alok Singh J.

1. By way of the second appeal, the defendants – appellants are assailing judgement and decrees passed by the trial Court dated 29.5.1974 and of the first Appellate Court dated 29.8.1977.

2. Brief facts of the present case are that Waryam Singh, father of the plaintiffs was the owner of the land in dispute. After the death of RSA No.1838 of 1977 2 Waryam Singh, Jaswant Singh succeeded Waryam Singh and inherited his property. Plaintiffs being the sisters of Jaswant Singh filed suit for possession against the defendants – appellants, claiming themselves to be the owners/successors of Jaswant Singh. The defendants – appellants contested the suit and learned trial Court decreed the suit, which was confirmed by the first Appellate Court. Hence, the present appeal.

3. This Court vide order dated 21.4.1992 allowed the second appeal. However, Hon'ble Apex Court vide order dated 3.9.2002 set aside the judgement passed by this Court and sent the appeal back to this Court for fresh decision. Order of the Apex Court is as under:- “We have heard learned counsel for the appellants at length. However, learned counsel for the respondents was not present. We have perused the record. Despite this Court having held repeatedly that the High Court acquires jurisdiction to decide the second appeal on merits only when it frames substantial question of law. In this case what we find is that the learned Judge without framing substantial question of law has proceeded to decide the appeal. This was not the way the second appeal ought to have been decided. On this short ground, we set aside the judgement under challenge and send the matter back to the High Court to decide the second appeal in terms of Section 100 CPC. Since the appeal is quite old, we request the High Court to decide the appeal expeditiously, if possible within a period of six months. The appeal is allowed. There shall be no order as to costs.”

4. I have carefully perused the order passed by the Apex Court RSA No.1838 of 1977 3 dated 3.9.2002. Since learned Single Judge of this Court vide order dated

21.4.1992 had allowed second appeal by disturbing the concurrent findings of the Courts below, hence the Apex Court set aside the judgement of this Court dated 21.4.1992, observing that learned Single Judge was wrong in setting aside the judgements of the Courts below without formulating substantial questions of law. Now this Court has to find out as to whether any substantial question of law arises.

5. Learned counsel for the appellants vehemently argued that death of Jaswant Singh was not proved. Hence, presumption under Section 107 of the Evidence Act was wrongly drawn by both the Courts below. Hence, this is a substantial question of law.

7. The defendants – appellants in paragraphs 4 and 5 of the written statement has taken the defence as under: - “4. Para 4 of the plaint is wrong and is denied excepting that the mutation of the land in suit was sanctioned in favour of the plaintiffs but that order is wrong, The defendants are the collaterals of Waryam Singh and hence that of Jaswant Singh. The pedigree table of Waryam Singh and the defendants is as under:- Lehna | |-----------------------------------------------------------------------| | | Nathu | Nanak | ---------------------------- | | Inder Singh Ujagar. | | Uttam Waryam Singh Jaswant Singh Waryam Singh and Jaswant Singh and the defendants were RSA No.1838 of 1977 4 governed in custom in matters of inheritance by virtue of which the defendants are preferential heirs to the estate of Waryam Singh or Jaswant Singh even though Jaswant Singh died after Waryam Singh and he inherited the property of Waryam Singh. At the death of Jaswant Singh or Waryam Singh, the Hindu Succession Act has not come into force. The land in suit is ancestral of Waryam Singh and Jaswant Singh qua the defendants. The plaintiffs are not the heirs of Jaswant Singh or Waryam Singh. Jaswant Singh had actually died. The question of presumption does not arise.

5. Para 5 of the plaint is wrong and is denied. The defendants were in possession of the land in suit as owners from the very beginning. Even if the plaintiffs be held to be the owners of the land in suit, their rights have come to an end by afflux of time and the defendants have become owners by adverse possession.”

8. From the perusal of paragraphs 4 and 5 of the written statement, the factum of death of Jaswant Singh is proved. It is further proved from paragraph 4 of the written statement that Jaswant Singh died after the death of his father Waryam Singh. It is also admitted by the defendants – appellants that Jaswant Singh died prior to the enforcement of Hindu Succession Act, 1956. Since, factum of death of Jaswant Singh is admitted to the defendant in the written statement, there is no need to press Section 107 or 108 of Evidence Act in service. From the perusal of paragraph 5, it would be revealed that the defendants – appellants had taken the plea of adverse possession against the RSA No.1838 of 1977 5 plaintiffs. Not only this, undisputedly, the defendants in earlier round of litigation had also taken the plea of adverse possession against the plaintiffs/respondents. It is settled principle of law that plea of adverse possession is always taken against the true owner. The moment defendants – appellants pleads adverse possession against the plaintiffs, nothing more is required to be proved by the plaintiffs about their title. Now burden comes on the defendants – appellants to prove adverse possession. Both the Courts below have held that the plaintiffs are owners and the defendants could not prove adverse possession against the plaintiffs while recording the finding on Issue 3(c). Hence, I find that no substantial question of law arises in the present appeal.

9. In view of the above, present appeal is devoid of any merit and hence, is dismissed.

17.02.2010 ( Alok Singh ) Judge