Hargulab Singh & Anr. v. Tehal Singh & Ors.

CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. Arvind Mittal, Advocate, for the appellants. MAHESH GROVER, J. This Regular Second Appeal is directed against the judgments and decrees dated 18.2.2008 and 13.10.2009 passed respectively by the Additional Civil Judge (Senior Division), Mohali, (referred to hereinafter as `the trial Court') and the Additional District Judge, Mohali (described as `the first appellate Court'), whereby the suit and the appeal of the plaintiffs-appellants have been dismissed. In a suit filed by the plaintiffs/appellants, it was pleaded that they are the owners in possession of the property, which has been described in the suit as 'ABCDEFGHIJ' in the site plan and which is situated within the abadi of the Village Landran, and it consists of a house, which is constructed by their forefathers. They pleaded partition and averred that the Eastern portion has been given to another descendent of Hira Singh and that the property of R.S.A. No.168 of 2010 (O&M) -2- the respondents situated on the Western site of the property of the appellants and is comprised in Khasra No.142. The possession was pleaded to be since the last 80 years and it was averred that they had become owner of the suit property by way of adverse possession and the cause of grievance was that the respondents were trying to open ventilators in wall AB to which they have also got no right. It was further averred that a civil suit No.183, dated 28.3.1989 has been preferred by them earlier, which was dismissed by the Trial Court and also by the first Appellate Court and that the possession of the appellants was established in the said proceedings. The respondents pleaded res judicata and also denied the ownership and possession of the appellants. Site plan was disputed and it was alleged that house No.131 had been wrongly shown while respondents pleaded their own possession on the suit property. It was further pleaded that the ventilators and doors have been existed since the day when the respondents attained their age of discretion and the construction was old and prior thereto. Because of the ongoing dispute, a compromise was effected between the parties, which could not be implemented because of the reason that Babu Singh, father of the appellants resiled from the same. The following issues were framed by the learned Trial Court upon which the parties led their respective evidence:-

1. Whether the plaintiff is entitled to the declaration prayed for?OPP.

2. Whether the plaintiff is entitled to the injunction prayed for?OPP. R.S.A. No.168 of 2010 (O&M) -3-

3. Whether the suit is barred under order 2 rule 2 CPC?OPD.

4. Whether the suit is barred by principle of resjudicate?OPD.

5. Whether the suit is maintainable in the present form?OPD.

6. Whether the suit is time barred? OPD

7. Whether the defendants have acquired easementry right for light and air?OPD.

8. Whether the plaintiff be estopped by their act and conduct from filing the present suit?OPD

9. Relief. Both the Courts below concluded that the appellants had failed to prove their ownership and possession of the property and that they have also failed to establish their lineage with that of Hira Singh. The plea of adverse possession raised was also negatived as it was contradictory to the plea of ownership. It was further held that the identity of the property has not been established and therefore, the suit was dismissed. In the regular second appeal, learned counsel for the appellants has contended that the findings recorded by the Courts below are perverse and that no finding had been recorded qua the issue No.2 i.e. whether the appellant was entitled to injunction as prayed for. He thus contended that this is a question of law, which needs to be determined and since the Appellate Court had not returned any finding on this issue, the judgment requires to be reversed. I have heard learned counsel for the appellants and have perused the impugned judgments. R.S.A. No.168 of 2010 (O&M) -4- A perusal of the impugned judgment of the first Appellate Court, does not show that issue-wise finding has been recorded. The appellants were in appeal and the arguments that were raised before it, have been elaborately dealt with in the discussion of the first appellate Court. The judgment is not in a particular format indicating the discussion issuewise, but it is in a narrative form where all the issues and the controversy have been discussed in toto. It has been held by both the Courts below that the appellants have failed to establish that they inherited the property from their forefathers. No material was brought on record to show that which of their ancestors had originally owned the property. The pedigree table was also not produced. There was thus no material on the record from which it could be inferred that the property was inherited by the appellants from Babu Singh. So much so that the boundaries of the said property was also not established. In the earlier suit, also a categoric finding had been recorded regarding failure of the appellants to establish the identity of the property. The site plan which had been produced by the appellants as Ex.PW-3/C did not tally with the site plan Ex.DX, which was attached with the previous suit and even the site plan which was prepared by the Local Commissioner, merely indicated the possession. But here also the identity of the property, which was in possession of the appellants, was not established. The appellants did not place on record proper site plan on the basis of which it could be established that the respondents were interfering in their possession. The Court, was therefore, right in declining interference and also right in observing R.S.A. No.168 of 2010 (O&M) -5- that neither the appellants have proved their ownership nor they had been able to prove the interference by the respondents in the property for the simple reason that the identity of the property itself remained vague and without proper description. Therefore, there is no infirmity in the findings recorded by the Courts below as it addresses all the issues, which have been raised and regarding which the parties were at logger heads. Dismissed. All pending applications are also dismissed in view of the above. 20th January, 2010. Monika (MAHESH GROVER) JUDGE