RSA No.1206 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1206 of 2010 (O&M) Date of Decision : 13 th May, 2011 Dr. Som Nath ….Appellant Versus Smt. Raj Rani ….Respondent CORAM :- HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. Ashok Gupta, Advocate for the appellant. Mr. Paramveer Singh, Advocate for the respondent. * * * * * L. N. Mittal, J. (Oral) Plaintiff-Dr. Som Nath having lost in both the courts below has filed the instant second appeal. Case of the plaintiff is that he was owner of land of Khasra Nos.471 and 472. Out of it, he gifted plot No.15 measuring 89 Square yards to the defendant-respondent Raj Rani vide registered Gift Deed dated 18.05.1968. Accordingly defendant raised construction of her house in the said plot. Adjacent to it, there is plot No.16 of the plaintiff out of his land of Khasra Nos.471 and 472 as depicted in green colour in site plan Exhibit P-1 annexed with the plaint. The defendant has encroached upon said plot No.16, measuring 168 Square yards, as depicted in green colour in the site RSA No.1206 of 2010 (O&M) plan. Possession of the defendant thereon is illegal and unauthorized. Accordingly, plaintiff sought possession of the suit land of plot No.16 measuring 168 Square yards. The defendant alleged that she is in possession of the property in question as owner for more than 25 years. She raised construction in it 25 years ago. Plaintiff never questioned possessory title of the defendant during this long period. It was also pleaded that plaintiff was not owner of total land of Khasra No.471 and 472. Defendant also alleged that she was put in possession of the suit land as owner by the plaintiff. The plaintiff himself allowed the defendant to occupy more area of land. Accordingly defendant has become owner of the suit land by adverse possession. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ambala City vide judgment and decree dated 15.12.2008 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 28.10.2009. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Motion order dated 03.08.2010 is reproduced hereunder: “Learned counsel for the appellant contends that plot measuring 89 square yards only was admittedly gifted by the plaintiff-appellant to the RSA No.1206 of 2010 (O&M) defendant-respondent but now respondent- defendant is in possession of 257 square yards area i.e. including 89 square yards area of plot No.15 gifted to her and 168 square yards area of the adjoining plot No.16 of the plaintiff. It is contended that the defendant-respondent has admitted the gift deed in her favour and in the said gift deed also, plaintiff’s plot No.16 is mentioned in the boundaries. It is also contended that the defendant has herself pleaded that the plaintiff allowed her to occupy the excess area and it would depict that defendant admits the ownership of the plaintiff on the excess area in suit. It is also contended that the defendant has taken the plea of adverse possession and the same has been negatived by the Courts below but this plea would depict that the defendant admits that the plaintiff is owner of the suit property. It is also contended that the defendant by pleading that plaintiff allowed her to occupy the suit land impliedly pleaded that her possession is permissive and not adverse. Notice of motion for 08.11.2010. Records of the courts below be requisitioned.” Learned counsel for the appellant has reiterated the aforesaid contentions as noticed in the motion order. On the contrary, learned counsel for defendant- respondent contended that disputed plot No.16 of the suit land is not proved to be part of Khasra Nos.471 and 472 as the plaintiff has not obtained demarcation of the suit land. It was also contended that plaintiff is only cosharer in the land to Khasra Nos.471 and 472 and therefore, he could not seek possession of the suit land. It was also RSA No.1206 of 2010 (O&M) pointed out that the plaintiff could not even tell the area of Khasra Nos.471 and 472. The plaintiff also took contradictory stand as to whether defendant raised temporary construction in the suit land one and half years prior to filing of suit or two and half years prior to filing of the suit . I have carefully considered the rival contentions. It is admitted case that the plaintiff gifted 89 square yards land of plot No.15 to the defendant vide registered Gift Deed dated 18.05.1968 (Exhibit PG). Perusal thereof reveals that plot No.16 was located towards North of plot No.15 which was gifted. According to the Gift Deed, plot No.15 measuring 89 Square yards only was gifted to the defendant. However, defendant has not disputed even in the written statement that she is in possession of said plot No.15 as well as the suit land being claimed by the plaintiff. The suit land adjoins plot No.15 towards North and East. It is mentioned in the Gift Deed that towards East also, there was property of the donor i.e. plaintiff. From the Gift Deed itself, which is basis of defendant’s claim, it is established that plaintiff is owner of the suit land whereas defendant is owner of plot No.15 measuring 89 Square yards only depicted separately in the site plan. The defendant has right over 89 Square yards only, but she is in possession of 257 square yards of land as depicted in the site plan. Consequently plaintiff is entitled to possession of 168 square yards area comprising the suit land, which is in unauthorized possession of the defendant. RSA No.1206 of 2010 (O&M) In addition to the aforesaid, the defendant herself has pleaded that the plaintiff allowed her to occupy excess area. This plea of the defendant herself implied that plaintiff is owner of the said excess area which is the suit land. This plea would also imply that possession of the defendant over the said excess area of the suit land was permissive under the plaintiff. Consequently, the plaintiff is entitled to seek possession thereof from the defendant. By oral permission to occupy the suit land, ownership or title of the suit land could not be transferred to the plaintiff. The defendant has failed to substantiate her plea to have become owner of the suit land by adverse possession. Thus examined from any angle, the plaintiff is entitled to possession of the suit land. As regards demarcation, the defendant in the written statement did not even dispute that suit land is part of Khasra Nos.471 and 472 as pleaded by the plaintiff. Consequently, no demarcation was required. On the contrary, plaintiff is exclusive owner of Khasra no.471/3/5/3 measuring 1 Kanal 10 Marlas as per jamabandi Exhibit PD and is also exclusive owner of Khasra Nos.472/2 measuring 6 Marlas and 472/12 measuring 1 Kanal 9 Marlas as per jamabandi Ex. P.E. Moreover even as cosharer, the plaintiff can seek possession from unauthorized occupant. Area of aforesaid Khasra numbers is mentioned in Jamabandis and if the plaintiff did not remember the same orally, he could not be non-suited on this ground. RSA No.1206 of 2010 (O&M) The fact as to whether defendant raised construction one and half years prior to filing of the suit or two and half years prior to filing of the suit, is immaterial, because plaintiff’s suit is for possession on the basis of title. For the reasons aforesaid, I find that finding of the courts below against the plaintiff is patently perverse and illegal and is based on total misreading and misappreciation of evidence and pleadings. Consequently substantial question of law to this effect arises for adjudication in this second appeal and the same is answered in favour of the plaintiff-appellant for the reasons recorded hereinbefore. As a necessary upshot of the discussion aforesaid, the instant second appeal is allowed. Judgments of the courts below are set aside. Plaintiff’s suit for possession of the suit land is decreed with cost throughout. (L. N. MITTAL) JUDGE 13th May, 2011 ‘raj’