R.S.A. No. 816 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 816 of 2009 (O&M) Date of decision: 19.02.2009 Jaspal Singh ....Appellant Versus Perm Mitter ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. N.S. Sodhi, Advocate, for the appellant. ***** VINOD K. SHARMA, J C.M. No. 2340-C of 2009 This application under Section 149 of the Code of Civil Procedure for making good the deficiency of Court fee. For the reasons stated in the application, C.M. is allowed. R.S.A. No. 816 of 2009 This regular second appeal is directed against the judgments and decree dated 28.10.2006 and 29.10.2008 passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for possession of land measuring 12 kanals 15 marlas stands decreed. The plaintiff/respondent filed a suit for possession on the pleadings that the suit property was allotted to father of the plaintiff/respondent being a fauji allottee and the possession of the suit R.S.A. No. 816 of 2009 (O&M) -2- land was delivered to Chaman Lal at the time of said allotment. After the death of Chaman Lal, the legal heirs of Chaman Lal came for possession of the suit property. It was the stand taken by the plaintiff that ownership rights have already been confirmed on the legal heirs of Chaman Lal, including plaintiff, and mutation also stands sanctioned in his favour on the basis of conveyance deed dated 21.4.1993. The plaintiff claimed that the appellant/defendant had no right to the suit property, but five years back he took forcible possession of the property from the plaintiff. The possession of the appellant/defendant was said to be that of trespasser. The suit was contested by the defendant/appellant wherein a plea was taken that the suit was not maintainable. It was claimed that the suit property was not properly valued for the purpose of Court fee. The plea of limitation was also raised. On merits, stand was taken that the defendant/appellant being in possession of the property, and his possession being hostile to the true owner, the same matured into ownership by way of adverse possession. On appreciation of evidence, the learned trial Court recorded a concurrent finding of fact holding that the suit land was allotted to father of the plaintiff as fauji allottee. It was also held that after the death of Chaman Lal, the suit property stands inherited by the plaintiff/resondent and, therefore, the learned Court held that the plaintiff was entitled to possession of the suit land. Other objections regarding maintainability, valuation and cause of action were decided against the appellant/defendant. The learned Court also held that the suit was within limitation as no R.S.A. No. 816 of 2009 (O&M) -3- limitation was prescribed for seeking possession on the basis of title. The plea of the appellant that he had become owner by adverse possession was also negatived on the plea that he failed to prove his hostile, and open adverse possession against true owner. In appeal, the findings recorded by the learned trial Court stand affirmed. The learned counsel for the appellant raised the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned Courts below is perverse as the learned Courts below have ignored the documentary as well as oral evidence brought on record? 2. Whether the plaintiff/respondent was entitled to seek possession in view of the litigation pending between the plaintiff/respondent and one Sukhdev Singh, who was said to be the vendee from the plaintiff/respondent?” Learned counsel appearing on behalf of the appellant vehemently contends that the substantial questions of law, as framed, deserve to be answered in favour of the appellant/defendant, as Sukhdev Singh had filed a suit for specific performance of an agreement to sell against the plaintiff/respondent. The said suit was decreed by the learned trial Court, and in pursuance thereto, the sale deed was executed by the Court. However, it is not disputed that the judgment and decree passed by the learned trial Court was set aside by the learned lower appellate Court, though regular second appeal is pending against the said decree wherein the parties in the said suit have been directed to maintain R.S.A. No. 816 of 2009 (O&M) -4- the status quo. It is also the contention of the learned counsel for the appellant that the learned Courts below also ignored the fact that Sukhdev Singh has also filed a suit for possession against the appellant/defendant claiming himself to be the owner, and in that suit, the plaintiff/respondent is one of the parties and, therefore, the learned Courts below committed an error in law in decreeing the suit. However, on consideration of matter, I find no force in the contention raised by the learned counsel for the appellant. The contention raised by the learned counsel for the appellant does not make him owner of the property or in any way entitle to retain the same, as trespasser, as on date admittedly the plaintiff/respondent is owner of the property in dispute. The dispute pending in regular second appeal is not between the defendant/appellant and the plaintiff/respondent rather it is with Sukhdev Singh. Even Sukhdv Singh admits the plaintiff/respondent to be owner of the property, as he sought specific performance of agreement to sell. Merely because Sukhdev Singh by claiming himself to be owner on the basis of decree which is set aside, filed suit for possession against the appellant/defendant, would not affect the right of the plaintiff/respondent to claim possession on the basis of ownership. The dispute, if any, to the title of property is between Sukhdev Singh and the plaintiff/respondent, in which the defendant/appellant can claim no right. In view of this, it cannot be said that the judgment and decree passed by the learned lower appellate Court is outcome of misreading of oral or documentary evidence on record nor it can be said that pendency R.S.A. No. 816 of 2009 (O&M) -5- of litigation with Sukhdev Singh and plaintiff/respondent can give any right to the defendant/appellant to resist the suit for possession filed by the plaintiff/respondent. No merit. Dismissed in limine. (Vinod K. Sharma) Judge February 19, 2009 R.S.