RSA No.2947 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2947 of 2011(O&M) Date of Decision: August 19, 2011 Karori Lal and another .....Appellants v. Naresh Saran and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.R.S.Mamli, Advocate for the appellants. ..... RAM CHAND GUPTA, J.(Oral) The present regular second appeal has been filed against judgment and decree dated 26.4.2011, passed by learned Additional District Judge, Yamuna Nagar at Jagadhri, dismissing appeal filed by present appellants-plaintiffs against judgment and decree dated 24.12.2008, passed by learned Additional Civil Judge, (Senior Division), Yamuna Nagar at Jagadhari, vide which suit filed by present appellants-plaintiffs was dismissed. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below. Briefly stated, present appellants-plaintiffs filed a suit for declaration with consequential relief of permanent injunction against respondents-defendants on the allegations that Brij Raj Saran son of Shri Beni Parshad was owner of the land in dispute and Shri Tungal, father of present appellants-plaintiffs, was the tenant under him. He was a big land owner. His land was declared surplus and the surplus case was decided on RSA No.2947 of 2011(O&M) -2- 8.12.1983, though he had died in the year 1981. Land in dispute vested in the State Government under Section 12(3) of the Haryana Ceiling on Land Holdings Act 1972 (hereinafter to be referred as the `Act'). Tungal, father of present appellants-plaintiffs died in October 1999 and after his death present appellants-plaintiffs came in joint possession of the suit land. The land in dispute was purchased by Tungal, i.e., father of present appellants- plaintiffs. Two installments were also deposited by him and hence, he had become owner under Section 15(5) of the Act and after his death ownership rights were inherited by present appellants-plaintiffs. However, order dated 8.12.1983 vide which land belonging to Brij Raj Saran was declared surplus was later on reviewed and set aside vide order dated 7.2.1985, Ex.D7 passed by Collector, Agrarian, Naraingarh. Order Ex.D7 was passed after hearing father of appellants-plaintiffs, namely, Shri Tungal. The said order was never challenged by father of appellants-plaintiffs and hence, the said order attained finality. The order of Collector Ex.D7 was challenged by some other tenants before Financial Commissioner, Haryana, who set aside the said order. However, against the order of Financial Commissioner, land owners filed Civil Writ Petition No.6959-A of 1988, which was decided on 24.11.1989, vide which order Ex.D7 passed by the Collector was upheld. Thereafter the land owners moved an application before the prescribed authority Jagadhri and the prescribed authority, Jagadhri cancelled the allotment orders including allotment made in favour of father of present appellants-plaintiffs vide order dated 29.11.1919, Ex.D3, and the land was again transferred in the name of land owners. Mutation Ex.D4 was also sanctioned in favour of defendants-land owners. Orders Ex.D7 and Ex.D3 have attained finality. RSA No.2947 of 2011(O&M) -3- It has been contended by learned counsel for the appellants- plaintiffs that though they were earlier in possession of the land as tenants and, however, when the land was allotted to father of present appellants- plaintiffs, the tenancy came to an end and hence, their possession can be termed as adverse to the true owners since that date. However, the said plea has been rightly declined by learned Courts below as one of the appellants- plaintiffs, i.e., Karori Lal has himself admitted in cross-examination in the petition for ejectment that they had paid batai for three years and prior to that as well, they had been paying batai regularly. He also stated that they have also given batai for sawni 2005. Hence, this admission itself proves that present appellants- plaintiffs have been continuing in possession as tenants. Moreover it has also been rightly observed by learned Courts below that plea of adverse possession can be taken in defence by defendants only and the suit for declaration cannot be filed on the basis of adverse possession. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 19.8.2011 (Ram Chand Gupta) meenu Judge