RSA No.3678 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3678 of 2010 (O & M) Date of Decision: 22.03.2011 Balbir Singh ……Appellant Versus Sohan Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. G. S. Jaswal, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.1078-C of 2010 Deficiency in Court fee is said to have been made good. The application is, therefore, allowed, subject to all just exceptions. Main Appeal. Balbir Singh-plaintiff No.1, having failed in both the Courts below, has filed the instant second appeal. Appellant-plaintiff No.1 alongwith his brother Charan Singh plaintiff No.2 (respondent No.42 herein) filed suit against respondent Nos.1 to 41 as defendants alleging that plaintiffs and defendant Nos.33 to 41 have become owners of the share of defendants Nos.1 to 32 in suit land measuring 15 kanals 9 marlas by way of adverse possession. RSA No.3678 of 2010 (O & M) - 2 - Both plaintiffs and defendant Nos.33 to 37 are sons of Sain Singh and claimed 1/8th share each whereas defendant Nos.38 to 41 are heirs of a deceased son of Sain Singh and claimed to be having 1/8th share in joint land. It was pleaded that plaintiffs and defendants No.33 to 41 are in adverse possession of the suit land since the year 1990 and have, therefore, become owners thereof by adverse possession. Ancillary relief of permanent injunction was also claimed. Defendant No.1 contested the suit and while admitting the parties to be joint owners of the suit land, broadly denied the other averments made in the plaint. It was pleaded that all the cosharers are in joint possession of their respective shares because partition has not been effected. Entries in revenue record are against law and fact. There was no overt act of plaintiffs and defendant Nos.33 to 41 to constitute adverse possession. Various other pleas were also raised. Defedant No.5 also contested the suit. However, later on, suit qua defendant No.5 was dismissed as withdrawn. Learned Additional Civil Judge (Senior Division), Dasuya (as Mobile Court at Mukerian) vide judgment and decree dated 14.08.2008 dismissed the plaintiffs’ suit. First appeal preferred by plaintiff No.1 has been dismissed by learned District Judge, RSA No.3678 of 2010 (O & M) - 3 - Hoshiarpur vide judgment and decree dated 13.04.2010. Feeling aggrieved, plaintiff No.1 has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that adverse possession of the plaintiffs and defendant Nos.33 to 41 over the suit land has been recorded in revenue record since jamabandi for 1990-91 as there is entry of ‘Naziaz Kabza’ in the revenue record and, therefore, plaintiffs and defendant Nos.33 to 41 are proved to have been in adverse possession of the suit land for more than 12 years before the filing of the suit and, therefore, they have become its owners by adverse possession. The contention appears to be very forceful and attractive on first blush, but the same is completely devoid of merit. Both the parties are cosharers in the joint land in suit. Plaintiffs have not even pleaded any overt act by plaintiffs and defendant Nos.33 to 41 to depict ouster of defendant Nos.1 to 32 cosharers. In the absence of ouster of the said cosharers, plaintiffs and defendant Nos.33 to 41 cannot be held to be in adverse possession of the joint land, also being cosharers therein. It has been held by Full Benches of this Court in the cases of Bhartu versus Ram Sarup, 1981 PLJ 204 and Ram Chander versus Bhim Singh and others, 2008(3) RCR (Civil) 685 that possession of one cosharer over joint land is deemed to be possession of all the RSA No.3678 of 2010 (O & M) - 4 - cosharers. The said principle of law, of course, admits of some exceptions, but in the instant case, the plaintiffs have neither pleaded nor proved any exception to the said rule. As noticed hereinbefore, it has not been proved that plaintiffs and defendant Nos.33 to 41 ousted defendant Nos.1 to 32 from the joint land in question. Consequently, the question of plaintiffs and defendant Nos.33 to 41 becoming owners of the suit land by adverse possession does not arise. Even otherwise, there is only self-serving, bald and oral testimony of plaintiff No.1, in addition to the revenue record. Self serving statement of plaintiff No.1 is not sufficient to prove exclusive possession of plaintiffs and defendants No.33 to 41 over the entire suit land. However, much emphasis on behalf of the appellant has been laid on the revenue record. The revenue record also, however, does not help the appellant. In the revenue record, possession of the plaintiffs and defendant Nos.33 to 41 has been recorded over the entire suit land as unauthorized possession. However, plaintiffs and defendant Nos.33 to 41 are also cosharers in the suit land. Consequenlty, their alleged possession over the joint land could not be unauthorized possession qua their own share. It is thus manifest that entries in the revenue record are not correct. Presumption attaching to the said entries stands rebutted. RSA No.3678 of 2010 (O & M) - 5 - Aforesaid conclusion is further supported by the testimony of plaintiff No.1 himself. In the witness box, plaintiff No.1 stated that he and his brothers are in possession of the suit land as ‘Mujara’ i.e tenants at Will. It rules out adverse possession of plaintiffs and defendant Nos.33 to 41 over the suit land. Plaintiff No.1 also stated that he and other cosharers are cultivating the suit land separately after effecting partition (may be mutual arrangement). This admission of plaintiff No.1 completely demolishes the case of the plaintiffs that they along with defendant Nos.33 to 41 are in exclusive possession of the entire suit land. On the contrary, according to this testimony of plaintiff No.1 himself, they are not in possession of the entire suit land much less in adverse possession thereof. Suit to claim declaration that person in possession of property has become its owner by adverse possession is also not maintainable as adverse possession can be set up only as defence. This view finds support from two judgments of this Court namely:- Bhim Singh and others versus Zile Singh and others, 2006(3) Civil Court Cases 479 and Dewaki and others versus Dayawanti and others, 2006(3) Civil Court Cases 615. For this added reason as well, the plaintiffs cannot succeed in the suit. Faced with the aforesaid situation, learned counsel for the appellant contended that at least possession of plaintiffs and RSA No.3678 of 2010 (O & M) - 6 - defendant Nos.33 to 41 should have been protected as the plaintiffs also claimed relief of permanent injunction in the suit. This contention also cannot be accepted because plaintiffs are also not proved to be in exclusive possession of the entire suit land as per testimony of plaintiff No.1 himself noticed hereinbefore. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the Courts below against the plaintiffs is based on appreciation of evidence and is supported by reasons recorded by the lower Courts. The said finding is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 22.03.2011 A.kaundal