Suresh & Anr. v. Sewa Singh & Ors.

Mr. Arvind Singh, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.7789-C of 2010 For the reasons mentioned, the application is allowed. Delay, if any, in making up the deficiency in Court fee, is condoned. RSA No.2598 of 2010(O&M) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent for possession was decreed further restraining the defendants from raising any construction over the same and with a further direction to hand over the vacant possession. As per the averments, Sh. Chhotu, father of the plaintiffs, was owner in possession of the suit property which was allotted to him during consolidation. He died on 12.5.2002 and the plaintiffs along with their sisters became owners in possession of the suit property. However, the defendants have forcibly occupied the same and raised construction without any authority. Despite the plaintiffs' request to hand over the possession, they refused to do so. . Hence the present suit for possession. Upon notice, the defendants put in appearance. Defendant RSA No.2598 of 2010(O&M) 2 No.1 filed written statement and submitted that the suit was not maintainable. It was further stated that the plaintiffs were neither owners nor in possession over the suit land because as per the demarcation report dated 29.11.2004, the defendants were using the suit land since long by constructing their residential houses. The plaintiffs never requested for delivery of possession and that a false suit was filed by them which deserved to be dismissed. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether Sh. Chhotu father of the plaintiffs was owner in possession of the suit land as mentioned and described in the head note of the plaint, situated in village Kurar, Tehsil and Distt. Panipat and after his death, the suit property has devolved upon his children including the plaintiffs? OPP

Whether the defendants have forcibly occupied the suit land and have raised construction on the same at the back of plaintiffs? OPP

In case issues No.1 and 2 are decided in favour of the plaintiffs, then whether the plaintiffs are entitled to possession of the suit land? OPD

In case issues No.1 to 3 are decided in favour of the plaintiffs, then whether the plaintiffs are also entitled to injunction as prayed for? OPD

Whether the suit of the plaintiffs is not maintainable in its present form? OPD

Whether the plaintiffs are neither owners nor in possession of the suit land? OPD RSA No.2598 of 2010(O&M) 3

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

Relief.” Both the parties led their evidence in support of their respective contentions. After hearing learned counsel for both the parties, the trial Court decided issues No.1 to 4 in favour of the plaintiffs whereas issue No.5 to 7 were decided against the defendants and consequently, the suit was decreed. Aggrieved from the aforesaid judgment and decree dated

31.1.2009, the appellants preferred an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 20.4.2009. Still not satisfied, the appellants have approached this Court by way of instant appeal submitting that the following substantial questions of law arise in this appeal: “I. Whether a suit for possession is maintainable without giving any date, month or year of dispossession or disclosing the cause of action? II. Whether a suit for possession is maintainable regarding 45 years old construction of a house which was constructed after purchase by an oral agreement on

13.9.1963? III. Whether the courts below are justified in decreeing a suit for possession without recording a finding possession of appellants/defendants is more than 12 years old, open, hostile and to the knowledge of the plaintiffs? RSA No.2598 of 2010(O&M) 4 IV. Whether the entries in jamabandies are rebuttable? V. Whether a suit for possession without impleading all the co-sharers is bad for non-joinder of parties and liable to be dismissed? VI. Whether the judgments passed by the courts below are perverse and based on misreading of evidence?” Learned counsel for the appellants has vehemently argued that the Courts below have failed to appreciate that the plaintiff- respondents were neither owners nor in possession over the suit land because as per demarcation report dated 29.11.2004, the appellants have been found to be in possession over the suit land and the house of the appellants was found to be constructed over Khasra No.426 belonging to them because the possession was given to the appellants by the father of the respondents 45 years back and the house was constructed in his presence after due demarcation.

It was further submitted by the learned counsel for the appellants that the plaintiffs' father had entered into an oral agreement regarding the property in dispute in September, 1963 with the appellants' mother and because of the close relationship, the sale document was not prepared by the father of the respondents in favour of the appellants' mother and thus, looking from any angle, the impugned judgment and decrees passed by the Courts below are not sustainable in the eyes of law and are liable to be set aside. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. In the present case, the plaintiffs have claimed possession of the suit property i.e. a Bara comprised in Khasra No.426. The defendants RSA No.2598 of 2010(O&M) 5 have disputed the ownership of the plaintiffs. However, from the perusal of revenue record i.e. Jamabandies for the year 1970-71, 1995-96 and 2000- 2001 the ownership over the Bara is proved to be that of Chhotu, who was the father of the plaintiffs and on his death, the ownership and possession was transferred in the names of present plaintiffs vide mutation No.2484 (Ex.P-5).

Though the defendants claimed the ownership of the suit property on the basis of an oral agreement, yet the ownership of the plaintiffs over the suit property was admitted by them while appearing in the witness box. However, the claim of the defendant-appellants over the suit land on the basis of oral agreement was not pleaded in the written statement and therefore, the same being beyond pleadings cannot be taken into consideration. The argument of the learned counsel for the appellants that the appellants are in possession of the suit property since long is meaningless as they have not claimed the title over the suit property on the basis of the plea of adverse possession and as such, no interference is warranted in the impugned judgment and decrees. Thus, no substantial question of law arises. No merits. Dismissed. CM No.7790-C of 2010 Since this appeal has been decided on merits, the application for condonation of delay does not survive. September 14, 2010 (RAKESH KUMAR GARG) JUDGE