Swaran Singh & Ors. v. Ranjit Singh & Ors.

Mr. B.S. Jaswal, Advocate for the appellants. Rakesh Kumar Garg, J. (Oral) CM No.3403-C of 2010 For the reasons mentioned in the application, delay of 165 days in refiling this appeal is condoned. CM stands disposed of. RSA No.1120 of 2010(O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff for possession of the property in dispute was decreed further restraining the appellants from alienating the suit land in any manner. It was averred by the plaintiff-respondent in the suit that he was owner in possession of the suit land on the basis of a sale deed dated

4.8.1999. The said land was previously owned by Janak Raj son of Puran Chand and others who sold the suit land along with some other land to Chanchal Singh, father of the plaintiff-respondent and possession of the said land was also delivered to him. Thereafter, Chanchal Singh sold the suit land to the plaintiff and his mother with possession as stated above. After the death of his mother, the plaintiff has become the full owner of the suit land. It was further averred that defendants filed a suit for declaration against him and his mother to the effect that they were owners in possession of the suit land along with an application under Order 39 Rules 1 and 2 CPC. The aforesaid application was dismissed vide order dated

24.12.2005 holding that ownership and possession of the suit land was of plaintiff-Ranjit Singh. Thereafter, defendants No.1 to 4 along with defendants No.5 to 7 took forcible possession of the suit land on 13.2 . 2006 and dispossessed the plaintiff. Hence the plaintiff was entitled to the recovery of the possession of the suit land. Since the defendants were threatening to alienate the suit land, prayer for restraining them from alienating the suit land was also made in the suit. Upon notice, the defendants appeared and filed written statement cum counter claim taking various preliminary objections. It was further submitted that the defendants were in possession of the suit land for the last more than 20 years and their possession was open, hostile, continuous and to the knowledge of the plaintiff and general public and as such they had become the owners of the suit land by way of adverse possession. The sale deed was not binding upon them. Dismissal of the suit was prayed. The defendants further filed the counter claim on the ground that originally Janak Raj son of Puran Chand and Shakuntala Devi (widow of Puran Chand) and Maharaj son of Thakur Dass were joint owners of the land in dispute and at that time Piara Singh, their father, was in possession of the suit land which was open, continuous, hostile and to the knowledge of Janak Raj and others. After his death, the appellant-defendants came into possession of the suit land and the said adverse possession had ripened into their ownership. The plaintiffs had no right, title or interest in the suit land nor they were in possession of any part of the suit land and therefore, they were entitled to the relief as claimed. In replication, the plaintiff reiterated his whole version as taken in the plaint and denied those averments made in the written statement. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled to recovery of possession of immovable property detailed in the head note? OPP

2. Whether the plaintiff has no locus standi to file the present suit? OPD

3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD

4. Whether the counter claimant/defendant is entitled to declaration that they have become the owner of the suit land by way of adverse possession? OPD

5. Whether the possession of the defendant is continuous, hostile to the knowledge of the plaintiff? OP Counter claimant/defendant

6. Whether the counter claim is not maintainable? OPP

7. Relief.” After hearing both the sides, the trial Court decided all the issues in favour of the plaintiff-respondent No1 and against the appellants and proforma respondent Nos.2 to 4. Resultantly, the suit of the plaintiff- respondent was decreed. Aggrieved therefrom, the appellants i.e. defendants No.1 to 4 filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 4.3.2009. It may also be relevant to point out that before the Lower Appellate Court, the appellants had moved an application under Order 41 Rule 27 CPC to adduce additional evidence regarding an agreement of sale dated 23.7.1978. However, the said application was dismissed. It may also be noticed that learned counsel for the appellants has not raised any argument against the aforesaid rejection of his prayer for additional evidence before this Court during the arguments. While dismissing the appeal the Lower Appellate Court found that on the basis of sale deed dated 3.8.1999 Ex.PW1/7, the plaintiff and his mother had become sole owner of the suit property and after the death of his mother, he became the sole owner of the suit property. The Lower Appellate Court also found that the possession of the appellants could not be protected as they have not been able to prove themselves to be the owners of the suit property on the basis of their alleged adverse possession and were only unauthorized occupants of the suit land. Still not satisfied, the appellants have filed the instant appeal. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. Both the Courts below on the basis of evidence on record have recorded a concurrent finding that the plaintiff-respondent is the owner of the suit property and the appellants have failed to prove their adverse possession. No material evidence could be pointed out by the learned counsel for the appellants to challenge the aforesaid findings recorded by the Courts below. No other point was argued. Thus, no interference is warranted by this Court under Section 100 CPC. No substantial question of law arises in this appeal. Dismissed. November 19, 2010 (RAKESH KUMAR GARG) JUDGE