RSA No. 176 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.176 of 1986 Date of decision 28.2.2011 Ram Dulari and another Appellants versus Samadh Baba Nihal Dass Respondent CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Kashmir Singh,Advocate for the appellants None for the respondent ...... JITENDRA CHAUHAN.J (Oral) The present appeal has been filed against the judgment and decree dated 10.1.1996 passed by learned First Appellate Court, whereby the judgment and decree dated 10.8.1984 passed by the learned trial Court were affirmed. The respondent-plaintiff filed a suit for possession of a plot through its Mahant/Mohtimim Harchand Dass @ Prag Dass Chela Sant Ram situated in the abadi of Mansa Mandi stated to be part of Khasra No. 703 ( 16 Kanals 12 Marlas) for permanent injunction restraining the appellants- defendants Ram Dulari and Jagga Ram from making any construction on the plot in dispute. The case of the respondent- plaintiff before the trial court was that Khasra No. 703 measuring 16 Kanals 12 Marlas is in ownership of Samadh Bawas Nihal Dass. The same is being managed by its Mahant/Mohtmim Harchand Dass @ Prag Dass. The plot in dispute forms part of Khasra No. 703. The defendants have no right, title or interest in the RSA No. 176 of 1986 2 plot in dispute and they were forcibly occupying it since 6.6.1983. They were asked to deliver back the possession but they refused. The suit was contested by the defendants and it was pleaded on merit that the plot in dispute was earlier in possession of Balbir Singh, Jagrup Singh, Daljit Singh sons of Jagir Singh. They remained in possession for 30 years. Ram Dulari appellant-defendant purchased the plot in dispute from Balbir Singh for Rs.8000/- on 2.11.1982 and is in possession thereafter. It was specifically stated that the plaintiff-respondent has not right to seek possession of the plot in dispute as it was not part of Khasra No. 703. They took the plea that plaintiff has no right to file the suit in question and suit was not within time. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is not within time? OPD 2. Whether the plaintiff has right to file this suit? OPP 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 4. Whether the defendants are owners of the plot in dispute by virtue of their adverse possession for the last 30 years?OPD 5. Whether the defendant Ram Dulari purchased the plot in dispute on 2.11.1982 for Rs.8000/- and she is in possession since then? OPD 6. Whether the plaintiff is owner of the plot in dispute? OPP 7. Relief. The learned trial court under issue Nos. 1 & 4 recorded the finding that the plea of alleged adverse possession of Balbir Singh, Jagrup Singh and Daljit Singh is not proved as none of them was examined and the fact that how they came in possession and remained in possession of the plot in dispute and if so in what capacity, Exh.D1,the sale deed was executed by them. In Exh.D1, it was not mentioned that vendors were in RSA No. 176 of 1986 3 possession of the plot in dispute for the last 30 years as projected by the defendants. The Ld. Trial court held that defendants did not become owners by adverse possession and accordingly issue Nos. 1 & 4 were decided against the defendants. Under Issue No.2, the Ld. trial Court referred to the findings recorded under Issue No.6, wherein it was held that the plaintiff was owner in plot in dispute which form part of Khasra No. 703, therefore, the plaintiff had the right to file the suit. Ld.trial Court also made reference to the copy of Jamabandi pertaining to the year 1978-79,wherein the plaintiff-Samadh has been shown as the owner of the land comprising in Khasra No. 703 and Mahant Harchand Dass @ Parag Dass being its Mahant/Mohtmim. This issue was decided in favour of the plaintiff. The Ld.trial court decided issue Nos. 5 & 6 together being interconnected. It was observed that Ram Dulari purchased the plot from Balbir Singh etc. for Rs.8000/- through the sale deed dated 2.11.1982,Exh.D1, which was proved by D.W2 Kishori Lal. The execution of the sale deed stands proved. On the other hand, the contention of the plaintiff was that plot in dispute forms part of Khasra No.703 owned by the plaintiff-Samadh. The further contention of the plaintiff was that the defendants forcibly occupied the plot in dispute on 6.6.1983. It was earlier in the possession of the plaintiff. P.W2 Lachman Singh,Field Kanungo was appointed as commissioner to find out if the plot in dispute forms part of Khasra No. 703. In his report, PW2 submitted that the plot in dispute forms part of Khasra No. 703. However, defendants have not produced any evidence to rebut the statement of PW2. It was further observed that Ram Dulari-defendant ventured to purchase the disputed plot from Balbir Singh RSA No. 176 of 1986 4 etc. without seeing any document of title with them or verifying the municipal record or revenue record. Balbir Singh etc. has no right to sell the plot in dispute and the remedy of the defendant Ram Dulari lied against Balbir Singh etc. and not against the plaintiff. The sale deed dated 2.11.1982 has no effect on the right of the plaintiff. The defendants cannot become owners on the basis of sale deed dated 2.11.1982. Hence issue No. 5 was decided against the defendant and issue No. 6 was decided in favour of the plaintiff. Harchand Dass Mahant/Mohtmim of the plaintiff-Samad was examined as P.W1. Lachman Singh, Field Kanungo,Mansa was examined as P.W2. On behalf of the defendants, Ram Dulari appeared as D.W1, Kishori Lal as D.W2 and Krishan Lal as D.W3. The learned First Appellate Court affirmed the findings returned by the learned trial Court. Learned counsel for the appellants has argued that plaintiff- respondent has failed to produce any evidence to prove its ownership in Khasra No. 703. Copy of the jamabandi produced was neither certified nor its authenticity was proved by producing any evidence. Learned counsel further submitted that it is proved on record that the defendants purchased the plot in dispute and raised construction thereupon and thus argued that at the time of sale in favour of Ram Dulari, the vendors were in possession of the same. He submitted that the view taken by the courts below is contrary to the evidence on record. I have heard the learned counsel for the appellants and perused the record. The questions that emerge for consideration of this Court are RSA No. 176 of 1986 5 as to whether the plot in dispute is part of Khasra No. 703 and plaintiff is entitled to possession thereof ? Kanungo, Mansa, Lachman Singh, PW2, was appointed as the local commissioner by the court to take the measurement of the disputed plot at the spot. He demarcated the plot on 16.2.1984. No objections were filed against the report Exh.P3, submitted by this witness ,which goes to prove that the plot in dispute constitute a part of Khasra No.703 and is owned by the plaintiff. Moreover, no effort was made by the defendants to produce on record any documentary evidence that the plot in dispute ever vested in Balbir Singh, Jagrup Singh etc. from whom Ram Dulari allegedly purchased the plot. Therefore, it is not proved that the plot was owned or possessed by them. From the statement of Lachman Singh, Field Kanungo (PW2) it is proved that the plot in dispute is part of Khasra No.703. The ownership of the respondent is also proved on the basis of the Jamabandi for the year 1979-80.Exh.D1 sale-deed cannot be relied upon as no khasra number is mentioned therein. In view of the pure findings of fact returned by the learned courts below, no interference is warranted. No question of law, much less a substantial question of law is involved in the present appeal. Accordingly the regular second appeal is dismissed without costs. (JITENDRA CHAUHAN) JUDGE 28.2.2011 MS Note: Whether to be referred to Reporter? Yes/No.