Ram Chander & Ors. v. Nafe Singh & Ors.

Present: Mr. Arun Jain, Sr. Advocate with Mr. Vishal Goel, Advocate for the appellants. Mr. Madan Gupta, Advocate for the caveator-respondents. L. N. MITTAL, J (ORAL) This is second appeal by defendants-Ram Chander and his two brothers, who were successful in the trial Court, but have been unsuccessful in the lower appellate Court. Suit was instituted by respondents (plaintiffs No.2 to 5)), who also represent plaintiff No.1-Singhari since deceased. The plaintiffs alleged that they were owners in possession of the suit plot measuring 7 marlas comprised of Killa No.315. However, the defendants constructed their house in the suit plot about three months prior to filing of the suit without knowledge of the plaintiffs. In spite of objections filed by the plaintiffs, defendants did not remove their construction and did not handover possession of the suit property to the plaintiffs. Accordingly, plaintiffs filed suit for possession of the suit property along with ancillary relief of permanent injunction. Defendants denied the plaint averments and alleged that RSA No.655 of 2010 (O & M) -2- the suit property was allotted to their father Siri Chand in the year 1956 in consolidation of holdings, being non-proprietor in the village. Siri Chand constructed Katcha house in the suit plot and became owner in possession thereof. In the year 1965, the suit property was divided in three portions being occupied by the three defendants. Since then, they are in continuous possession of the suit property and had become its owners by adverse possession. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sonepat vide judgment and decree dated 29.05.2009 dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Sonepat vide judgment and decree dated 08.12.2009 and thereby suit filed by the plaintiffs stands decreed. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiffs have filed suit for possession of suit property comprised of killa No.315. The defendants alleged that the suit property was allotted to their father. Plaintiffs have led documentary evidence in the form of revenue record to depict that plaintiffs are owners of the suit property comprised of killa No.315. There is no evidence on record to depict that the suit property comprised of killa No.315 was ever allotted to defendants' father. There is also no evidence on record to depict that defendants have any right, title or interest in suit property comprised of killa No.315. Consequently, plaintiffs are proved to be owners of the suit property comprised of RSA No.655 of 2010 (O & M) -3- killa No.315 and are, therefore, entitled to possession thereof. Stand of the defendants that they have become owners of the suit property by adverse possession is not established. Even the trial Court held under Issue No.8 that defendants are not proved to have become owners of the suit property by adverse possession. The said finding has also been affirmed by the lower appellate Court. Consequently, plaintiffs' suit for possession being based on their title has been rightly decreed by the lower appellate Court. Learned counsel for the appellants vehemently contended that plaintiffs have taken contradictory stands regarding the construction raised in the suit plot. It was pointed out that according to plaint version, the construction was raised by the defendants whereas in the witness box, plaintiff No.2 stated that plaintiffs raised the construction, but in cross-examination, he stated that construction was raised by defendants. However, this contradiction does not deprive the plaintiffs of their right to seek possession of the suit property based on their title. Moreover, it is the stand of the plaintiffs in the pleadings, by which they are bound, that the construction was raised by the defendants. The fact that plaintiff No.2 did not deny suggestion that the construction was raised 20-30 years back and stated that he could not say about it, would not be sufficient to non-suit the plaintiffs when they are owners of the suit property and defendants are not proved to be owners thereof by adverse possession. Learned counsel for the appellants also contended that plaintiffs claimed to have obtained demarcation of their plot comprised of killa No.315, but did not produce the said demarcation RSA No.655 of 2010 (O & M) -4- report in evidence. It was also contended that defendants have placed on record jamabandi depicting that khasra No.274 plot No.208, also measuring 7 marlas, was allotted to defendants' father Siri Chand and consequently defendants are owners of the suit property as their house exists in said khasra No.274 plot No.208. The contentions are untenable. Defendants in the written statement did not even remotely plead that suit property is not comprised of killa No.315. On the contrary, plaintiffs specifically pleaded that suit property is comprised of killa No.315. The defendants alleged in the written statement that the suit property was allotted to their father Siri Chand. It would mean that suit property comprised of killa No.315 was allegedly allotted to defendants' father Siri Chand as per pleading in the written statement. In this view of the matter, plaintiffs were not required to produce demarcation report to depict that the suit property is comprised of killa No.315. On the contrary, this fact pleaded in the plaint was not controverted in the written statement. For the same reason, the contention that suit property is comprised khasra No.274 plot No.208 cannot be accepted because there is no such pleading in the written statement. There is not even a whisper about it in the written statement. It may also be added that defendants have also not placed any material on record to depict that their house exists in khasra No.274 plot No.208. The burden was on the plaintiffs to prove that they are owners of the suit property. However, they have duly discharged this onus by proving that they are owners of the suit property comprised of killa No.315 as pleaded by them. Learned counsel for the appellants also contended that RSA No.655 of 2010 (O & M) -5- defendants have been paying Chulla Tax and there is also electricity connection in their name in the suit property. However, since it is a suit for possession based on title of the plaintiffs, they are entitled to get possession of the property owned by them. For the reasons aforesaid, I find no merit in the instant second appeal. Judgment of the lower appellate Court does not suffer from any illegality or perversity so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed.

14.12.2010. A. Kaundal ( L. N. MITTAL ) JUDGE