RSA No. 4723 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4723 of 2009 Date of Decision : May 26, 2011 Malkiat Singh ...... Appellant Versus Ranjit Singh ...... Respondent **** CORAM : HON'BLE MR. JUSTICE L.N. MITTAL Present : Mr. Ashok Jindal, Advocate, for the appellant. Mr. Inderjit Sharma, Advocate, for the respondent. **** L.N. Mittal, J (Oral) Plaintiff Malkiat Singh, who was successful in the trial but has been non-suited in the lower Appellate Court, has come up by way of instant second appeal. Plaintiff-appellant filed suit against defendant-respondent Ranjit Singh alleging that plaintiff is owner of suit plot measuring 10 marlas comprised of khasra No.130//19/1/1 having purchased it from one Malkiat Singh son of Gurbax Singh vide sale deed dated 24.3.2005. Possession of the suit plot was also delivered to the plaintiff by his vendor at the time of sale deed. However, defendant took illegal and forceful possession of the suit land in December 2006 and raised construction thereon forcefully and illegally. Accordingly, plaintiff filed suit for possession of the suit plot. RSA No. 4723 of 2009 2 The defendant broadly controverted the plaint averments and has pleaded that defendant is in possession of the disputed house for the last 35 years. His possession is adverse, continuous, open and hostile. Accordingly, defendant claimed to have become owner of the suit property by adverse possession. Learned Civil Judge (Junior Division), Bathinda vide judgment and decree dated 28.2.2009 decreed the plaintiff’s suit. However, first appeal preferred by defendant has been allowed by learned Additional District Judge, Bathinda vide judgment and decree dated 31.8.2009 whereby plaintiff’s suit has been dismissed. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Plaintiff has produced ample evidence on record to prove that he is owner of the suit land having purchased it from Malikat Singh son of Gurbux Singh vide sale deed dated 24.3.2005. Plaintiff has produced the said sale deed and proved it by examining its attesting witness. Plaintiff has also produced revenue record to depict that his vendor Malkiat Singh was owner of the suit land prior to sale. Thus ownership of the plaintiff over the said land is fully established and it appears that the same was also not seriously disputed by the defendant. The defendant claimed his adverse possession over the suit property for 35 years. However, even the lower Appellate Court observed that the defendant has failed to prove his plea of adverse possession. In spite thereof, the lower Appellate Court dismissed the plaintiff’s suit for possession. This approach of the lower Appellant Court is manifestly perverse and illegal. The plaintiff is proved to be owner of the suit property RSA No. 4723 of 2009 3 and the defendant is in possession thereof. The defendant could not prove his plea of adverse possession. Consequently the plaintiff on the basis of his title is entitled to relief of possession of the suit plot. Lower Appellate Court took great pains to observe that the plaintiff failed to prove that he was forcibly dispossessed from the suit plot by the defendant in December 2006. However, even if it were so, even then suit of the plaintiff for possession of the suit plot based on title could not be dismissed when the defendant failed to prove his plea of adverse possession. Lower Appellate Court also brought another dimension into picture for non-suiting the plaintiff. It was observed that demarcation of the plot, purchased by the plaintiff, has not been obtained and there is dispute regarding identity of the suit plot. However, no such plea regarding identity of suit plot was even raised by the defendant in his written statement. Lower Appellate Court also laid emphasis on the fact that existence of defendant’s house for 30 years was admitted by the plaintiff. However, the plaintiff specifically stated that the said house of defendant existed for 30 years except on the suit land. The plaintiff stated that defendant owned adjoining 17 marlas land across the street. Thus, the defendant’s house might be existing for 30 years on his own land but the defendant’s construction in the suit plot is not existing for 30 years. Even the lower Appellate Court has observed that the defendant has failed to prove his plea of adverse possession. Defendant was even unable to tell as to from which date, month or year, he claimed his adverse possession over the suit property. From the aforesaid discussion, it emerges that entire approach of the lower Appellate Court is manifestly perverse and illegal and is based on complete misreading and misappreciation of evidence and factual and legal position. Substantial question of law to this effect, therefore, arises for RSA No. 4723 of 2009 4 determination in the instant second appeal and the same is answered in favour of the plaintiff-appellant for the reasons already recorded hereinbefore. As a necessary consequence of the discussion aforesaid, this second appeal is allowed. Judgment and decree of the lower Appellate Court are set aside. Judgment and decree of the trial Court decreeing the plaintiff’s suit for possession of the suit plot are restored. (L.N. Mittal) Judge May 26, 2011 Anand