Regular Second Appeal Nos. 1823 and 2046 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Regular Second Appeal No. 1823 of 2007 Rameshwar alias Ramasher and Others …Appellants Versus Vijay and Others …Respondents AND 2. Regular Second Appeal No. 2046 of 2007 Rameshwar alias Ramasher and Others …Appellants Versus Vijay and Others …Respondents Date of Decision: 5.8.2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.S.Mamli, Advocate for the appellants. Ms. Seema Pasricha, Advocate for the respondents. Kanwaljit Singh Ahluwalia, J. (Oral) By this common judgment, Regular Second Appeals No. 1823 and 2046 of 2007, both titled as “Rameshwar alias Ramasher and Others v. Vijay and Others” shall be decided together. Regular Second Appeal No. 1823 of 2007 has been filed to assail the judgment & decree dated 1.9.2005, passed by the Court of Additional Civil Judge (Senior Division), Malout and judgment & decree dated 24.2.2007, passed by the Court of Additional District Judge (Adhoc), Fast Track Court, Muktsar, whereby the prayer for mandatory Regular Second Appeal Nos. 1823 and 2046 of 2007 2 injunction has been declined. Regular Second Appeal No. 2046 of 2007 has been filed to assail the findings rendered by both the Courts below in the above said judgments, whereby the defendants to the suit have been declared as owners in adverse possession. The plaintiffs pleaded that they are owners of the house, details and description whereof have been given in head note of the plaint. It was stated that being legal heirs of Gopal son of Nathu they became owners of the property. It was further pleaded that plaintiff No.1- Rameshwar went to Fatehabad for earning his livelihood and had handed over the demised house to his maternal uncle Pir Bhan. The defendants have no concern with the property as they had occupied the same illegally about two years ago; had constructed a partition wall in middle of the house; forcibly occupied southern side of the demised house and their possession over the suit property is without any right. Upon notice, the respondents/defendants had caused appearance and filed a written statement in the shape of counter claim, wherein they raised many preliminary objections viz. regarding maintainability of the suit and the same being not properly valued for the purpose of Court fee. They have also questioned the locus standi of the plaintiffs to file the suit. On merits, they pleaded that they are in possession of the suit property, which is adverse, hostile, open, continuous without any interference and to the knowledge of the whole world including the plaintiffs. They have also raised construction over the suit property as per their requirement being owners. The trial Court, after completion of the pleadings, had Regular Second Appeal Nos. 1823 and 2046 of 2007 3 formulated the following issues: “1. Whether the plaintiffs are entitled to mandatory injunction? OPP 2. Whether suit is not maintainable in the present form?OPD 3. Whether suit has been filed on false and fabricated and wrong facts? OPD 4. Whether suit is not properly valued for the purpose of Court fee? OPD 5. Whether plaintiffs have no cause of action to file the suit? OPD 6. Whether defendant No.1 to 3 are entitled to counter claim, as prayed for? OPD 7. Whether counter claimants have no right to file the suit? OPPP 8. Whether counter claimants are trespassers? OPP 9. Whether counter claimants have no cause of action to file the suit? OPD 10. Relief.” Appellant/plaintiff No.1-Rameshwar appeared as PW.1 and proved site plan of the demised house as Ex.P1. Pir Bhan appeared as PW.2 and his examination-in-chief was recorded. Thereafter, he never stepped into the witness box to facilitate his cross-examination, therefore, his testimony cannot be taken into consideration. Respondents/defendants examined Sat Pal, Clerk from the office of Regular Second Appeal Nos. 1823 and 2046 of 2007 4 Punjab State Electricity Board, Urban Sub Division, Malout, as DW.1, who proved on record documents Ex.D1 to Ex.D4, which were necessary for installation of an electric meter. Bakshish Singh, Municipal Councillor, was examined as DW.2, Jagan Nath, Junior Engineer, Water Supply and Sewerage Board, Malout, appeared as DW.3 and Sat Pal Singh, Patwari, Halqa Malout, as DW.4. Defendant No.3 Chandro appeared in the witness box as DW.5 and defendant No.1 Vijay Kumar as DW.6. Issues No.1, 3 and 6 were decided together. While deciding these issues, the trial Court took into consideration the testimony of plaintiff Rameshwar as PW.1 that he became owner of the property through his predecessor-in-interest Gopal son of Nathu and mutation regarding ownership was sanctioned. The trial Court further took into consideration the admission made by plaintiff No.1 that he never installed any electric meter, water supply or sewerage connection. DW.3 Jagan Nath proved that defendant No.3 Chandro had got water connection in the year 1987. DW.1 Satpal, Clerk from the office of Punjab State Electricity Board, Urban Sub Division, Malout, proved that the electric meter was sanctioned in the name of Sampat Ram in the year 1989, whereas the present suit was filed in the year 2001 i.e. after the lapse of about 12 years. The trial Court also took into consideration the admission made by plaintiff No.1-Rameshwar in his cross- examination that the defendants are in possession of the suit property for the last 40/50 years. Mr. Mamli has extensively read the cross- examination of plaintiff PW.1 Rameshwar. Ms. Seema Pasricha, Advocate, appearing for the respondents, has also produced photocopy Regular Second Appeal Nos. 1823 and 2046 of 2007 5 of cross-examination of the said witness. It will be apposite here to reproduce the relevant portion of his cross-examination, which when translated into English, reads as under:- “...I have not got electricity connection of the house nor any tap. I have also not obtained sewerage connection. When I was five/six years old, I used to reside here. Thereafter, I never remained here. Sher Singh has also not resided in this house. My maternal uncle used to visit this house but he never resided here. The house is of 40' x 60'. XXX XXX XXX XXX XXX XX After putting locks, we had left the house. Thereafter, by breaking the locks, the defendants are residing in this house from the last 40/50 years...” The trial Court took into consideration the admission made, in his cross-examination, by plaintiff No.1-Rameshwar and also various documents, which proved that the electricity, water and sewerage connections were installed in the house at the behest of the respondents to hold that the defendants became owners by way of adverse possession and the plaintiffs are not entitled to the relief of mandatory injunction. The findings, returned by the trial Court, were affirmed by the lower Appellate Court, vide its judgment dated 24.2.2007. Mr. Mamli has submitted that DW.5 Chandro has stated that she had purchased the property. He has further submitted that this admission of DW.5 Chandro should be taken into consideration while Regular Second Appeal Nos. 1823 and 2046 of 2007 6 ignoring the admission made by PW.1 Rameshwar as onus to prove the adverse possession was upon the defendants which they had failed to do so. I have given my thoughtful consideration to the submissions made by Mr. Mamli. This Court has to take into consideration the whole deposition of PW.1 plaintiff Rameshwar and the defendants. Even PW.2 Pir Bhan, whose examination-in-chief was recorded, never stepped into the witness box to facilitate his cross-examination. Even the admissions made by PW.1 Rameshwar, in his cross-examination, proved the case of defendants. Both the Courts below have taken into consideration the testimony of PW.1 Rameshwar and also the fact that the electricity, water and sewerage connections are in the name of defendants for more than 12 years. Plaintiff No.1 Rameshwar had never visited the house after he attained the age of five/six years. He has admitted in his cross-examination that the defendants are residing in the house in dispute for the last 40/50 years. Contentions advanced by Mr. Mamli me calls for re-appreciation and re-appraisal of the evidence, which this Court shall refrain to do so in the regular second appeal. Thus, taking totality of the circumstances into consideration, this Court can very safely says that no question of law, much less a substantial one, arises for consideration of this Court. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 5, 2011 “DK”