68 e RSA No242of 1990 1 eaV 1 IN THE HIGH COT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No22420f 1990 Dateof decision ll7072010 Smt MayaWati and others r Appellants 0 versus C I Lakhi Ram and another 0 I Z CORAM 1 HONBLE MRJUSTICE KCPURI m Q Present Mr Mani Ram Verma Advocate for theappellant Mr Vivek SinglaAdvocate for respondent I a5 KPURI J CO 7 Z This is a regularsecondappealdirected by plaintiffopellants Ll againstthe judgmentdated 13 1 1990 passedby Shri VPChaudhary Additional District JudgeBhiwani vide which the appealprefenedby the defendantsagainst dated 81989 passedby Mr Bawat Sub JudgeIst Class Bhiwani decreeing the SUlt of the plaintif stood accepted after settingasidethejudgment of the trial Court Shorn off unnecessarydetails the case of the plaintiffis that the site in displlte was byhim on February 12 1982from Parmal Singhand others who were its owners and in its possession Plaintiff claimed that he was put into possessionby Parmol Singhand othersat the time ofsale and since then his possession contlnues Accordingto him the KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 69 RSA N02242 of 1990 2 L 4 1 defendantsintendedto forciblyoccupy the disputed site and it with their own propertyabutting it Hence the SUit Suit has been resisted by the defendants In their written statement the defendantshave assertedthat theyare in of the 1 Site in disputefor more than 35 years and theyhave become its owners by r way of adverse It has beenfurtherallegedthat theplaintiffhas 0 0 no concern with the site in disputeand theallegedsale deed in his favour is I 9 only a paper transactionand not bindingupon their rightsTheyhave also I denied that Parmal Singhand others from whom the plaintiffclaimed to Z have purchasedthe Site ul disputeand that the Slte in disputewas their ancestralproperty The defendantshavealso raisedpreliminary objections that the I 08 plaintiffhas no cause of actlon that theplaintiffis estopped Som filingthe presentsuit byhis act and conduct that the SUlt 1S barred byprinciples of m Z res judicatathat the suit is not properlyvalued for the purposesof court fee C andjurisdictionthat the suit is not maintainablein the presentform It has also beenallegedthat the Site lll disputealongwith the some other property was by Mangali Ram father of the defendants from certain persons named 10 preliminaryobjectionNo 12 and that since then the defendantsare in possession ofthe suit land llhe learnedtrial Court framedthefollowingissuesl 1 Whether the plaintiffis owner in possessionof GHER in dispute as allegedifso to what effect 20PP 2 Whether the suit has not been properlyvalued for the purposes ofcourt fee 2OPD 3 Whether the plaintiffhas not filed the correct site planof the propertyin questionifso its effect2OPD KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 70 RSA No2420f 1990 3 e4 e 6J 4 Whetherthe earlier suit filed by the plaintiffregarding the suitpropertyhasalready beendismissed20PD 5 Whetherthe suit is hlt bythe 6 Whether the suit is not maintainable in the present form20PD 7 Relief 0 The partieshave led theirrespective evidence on the aforesaid C 1SSues and after the same and hearingthe leamed counseI for I C thepartiesthe trial Court decreedthe suit ofthe plaintiff I Feelingdissatisfied with the judgmentdated 83 1989 the Z plaintiffpreferred appealbeforethe First Appellate Court r The said appealwas allowed by learned District Judge Bhiwani vide judgment dated1311990 and the suit of theplaintiffstood 08 dismissed OO Feelingdissatisftedwith the judgment dated 13 11990 the 7 Z have preferred thepresentregularsecondappeal I have heard learned counsel for the partiesand have gone through the recordsofthe case Learned counsel for the has submittedthat following substantialquestionsoflaw havearisen in the presentappeal 1 Whether sale deedAnnexureIl is admissiblein Evidence as relied bythetrial Court 2 2 Whether Evidence beyondpleadings is admissible9 3 WhetherAppellate Court hasmisread thepleadlngs of the and wronglyrelied the evidence beyondpleadings 9 4 Whether pleaofadverse possession is permissible in the factsand circumstancesofthe case 2 KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 71 0 RSA N02242 of 1990 4 e 5 Whether Adverse 1S provedin the case withoutany speciflcpleading c Evidence on record2 It is contended that plaintiffhas provedthe sale deed in his favour Both the Courts below have not disputed the fact that execution of C sale deed ExPl in favour of the plaintiff The leamed trial Coun aRer 0 the evidence on file that theplaintifs owner in of C the suit propertyin view ofthe saledeeddated1221982 in his favour The I C5 First Appellate Court has also retumeda findingthat sale deedExD1 to Dm I 7 do not relate to the land in disputeHowever the Sndingof the First Z Appellate Court to the effect that defendanthasbecome owner in m r ofthe suit propertybyway of adverse is absolutely wrong The I First AppellateCourt hasmisreadand the evidenceregarding a5 of the defendant over the suit property The pleaof adverse 7 possesslon can onlybe taken if the defendant admitted the plaintiffas Z owner Since the defendantshave not admittedtheplaintiffas owner ofthe suit propertyand as such a pleaofadverse could not be factually correct It is submitted that the First AppelIate Court has merely accepted the appealon the groundthat plaintiffhas failed to prove the ownership of vendor of plaintif It is submitted that suit propertywas ancestralpropertyofvendors Learned counsel for the appellants has further submittedthat well reasoned judgmentgiven by the trial Court vide judgmentdated 83 989 has been set aside bythe First Appellate Court without meetingthe pointsgivenbythe trial Court That approachofthe First Appellate Coun KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 72 RSA N02242of 1990 5 C as perverse Learnedcounsel for the has ther submittedthat themain groundfor acceptanceof appealby the First AppellateCoun 1S that the earlier suit was dismissed as withdrawn The earlier suit was m merelyfor permanentinjunctionand that was withdrawn as threat of C was over The secondsuit for permanentinjunction on fresh 0 C threat is maintainable in view of authorityRanjit Sin VSe Gurnam Singh1998131PLR 749 C5 I Learned counsel for the hassupported thejudgment Z of the First AppellateCourt and submittedthat the said Court hasgivena sound reasoning for dismissing the SUit of the plaintiff The High Court C could not interfere in the findingof the First AppellateCoun unless the I 08 sameare perverse in view of ApexCourt authority ln MstSuani VSe rlo Rameshwar Das Si Anr 2006141RCR 1Civill 319 in 25 held vm Z as under 25 It is not within the domain of the High Coun to investigate the grounds on which the findings were arrived at bythe last court of fact It is true that the lower appellate court should not ordinarilyrejectwltnesses acceptedby the trial court in respectof credibilitybut even where it has rejected the witnessesacceptedbythetrial court the same is no ground for interference111 second appealwhen it is found that the appellate court has given reasons for doingSO In a case where from a given set of circumstances two interferenceare possibleOne drawn by the lower appellate KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 73 7 RSA No2242 of 1990 6 a 1 COUIt lS binding on theHighCourt in second appealAdopting anyother approach is not The HighCourt cannot substituteits opinionfor theopinionofthe Orst appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous beingcontraryto the 0 provisions of law applicable or its settledposition on the basis 0 0 of pronouncementsmade by the Apex Court or was based I uponinadmissibleevidence or arrivedat without evidence 97 9 So far as authorityMste Sueanis case supral 1S concerned Z lll that case it has been held that the flndingof lower AppellateCourt should not be interfered by the HighCourt in second appealunless it lS r found that the conclusion drawn by the Lower AppellateCourt are I 08 erroneous beingcontraryto the mandatoryprovisions of law or 1S agalnst oo the settledposition on the basisofthe pronouncements madebythe Hone 7 Z ApexCourt or was based upon inadmissible evidence or arrived at such conclusion without any evidence In the presentcase authority Mste Suoanis case Isupral will not render any helpto the case of the as the findingof First AppellateCourt regarding of defendants 1S based upon inadmissibleevidence and passedonlybyignonng the basic principles of laWe The ingredientof adverse possessionshould be proved The defendantshave failed to prove their possession over the suit propertymuclless adversepossession It is settledlaw that piaintiffhasto prove his own case Mere execution of the saie deed ExP does not prove the ownership of the KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 74 RSA No22420f 1990 7 1d plaintiffThe First Appellate Court hasrightlyheld that since theplaintiff has failed to prove the vendor ofthe plaintiffwere owner and in possessiOll of the suit propertyand as such no valid title is beingconveyed in favour of theplaintift The First Appellate Court hasrightlyheld that defendantshave C become owners of the suit propertyby way of adverse as they 0 C are in of the suit property for the last more than I 3040 years C I I have given my thoughtfulconsideration to the rival Z submissionsmadebylearnedcounsel for thepartiesand have gonethrough the recordsofthe case 0 llhe plaintiffhas flled suit for permanentinjunction I a5 the defendantsfrom taking by force alongwith other members r Previouslyplaintiffhadalso filed a suit for injunction and the said suit was 7 Z dismissed in default The application for restorationof the said suit was also dismissed in default The leamed counsel for the appellanthas submittedthat second suit for injunction is not maintainablebut in view of authority Raniit Sinehs case supral second suit for injunction 1S maintainableas every fresh threatgivingthenew causeof action However in the said ruling it has beenheld that indeed second suit for declarationis barredunderOrder 9 Rule 90fthe Code ofCivil Procedure It has beenheld by the Honble ApexCourt that in case the suit was not decided on merits the principlesof res judicatawill not operate However the second SUit would be barred It is settledlaw that plaintiffhas to prove his case and cannotrelyupon the weaknessof the case of the defendant The trial CouM KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 75 RSA No242of 1990 8 hasdecreedthe suit ofthe plaintiffrelying upon the saledeedExP1 but the First AppellateCourt has accepted the appealholdingthat plaintiffhas failed to prove theownership ofthe vendors The stand taken by the plaintiff 1S that the propertyof the vendors was ancestral and on that account no evidence was r led The First AppellateCourt returned a definite flndingthat Since 0 C vendorofthe plaintiffwere not proved to be the owners ofthe suit propeny I and as such theycannot convey any title in favour of the plaintiff That C5 beinga findingoffact doesnot call for any interference Z Learned counsel for the could not point out as to how the AppellateCourt has misreadthe pleadingsand how the the First AppellateCourt has relied upon the evidence beyondpleadingsregarding 08 the ownershipand of the plaintiffIt 1Sa Slllt for injunction and r once the plaintiffhas failed to prove his ownership and possession as such 7 Z theyare not entitled to claim any relief againstthe defendants However the findingof the the First AppellateCourt to the effect that defendants havebecomeowners ofthe suit propertyby way ofadverse possession does not sustalll the test of legalscrutinyThe suit propertyis lyingvacant It is flndingof fact recorded by the the First AppellateCoun that defendants have failed to prove that by sale deedsExDl to D7 theyhave the suitpropertyThe suit propertyis lyingvacant It is settled law that vacant plot would be deemedto be in possession of the owner To prove adverse a partyhasto prove thattheyremainedin of the suit property with the knowledge of the real owner without any for a continuous periodof more than 12 years which is a KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 76 RSA No2242of 1990 9 7 e statutoryperiodThe First AppellateCourt has returned the Sndingof adverse of the defendant in a casual manner ignoringthe basic of law Mere an adjoiningor anotherpropertynear thesuit land does not prove the ofthe plaintiff The approach of thetrial Court in retuming the findingof adverse in favour of defendantsis againstthe law and as such that findingcannot be sustained 0 What to talk of adverse the defendantshave failed to prove their CO over the suit property I C In view of the above discussion the substantial questions NosA and 5 raised bythe standretumed againstthe Z and in favourofthe appellantSo thefindingabout a the of the defendantsover the suit propertyand the Ondings of the First AppellateCourt that the defendantshavebecome owner of the suit 08 r10 propertybyway ofadverse standsset asideand it is held that the V defendantshave failed to prove their over the suit propeny Z Now revertingto the case ofthe plaintifftheyhave also failed CL to prove their ownership and over the suit property The sale deedEx hasbeen rightlynot relied upon bythe First Appellate Court as the plaintiffhas failed to prove the fact that forathers of the vendors of the plaintiff were owners in ofthe suit propertyIn view of the above discussion the substantialquestionsof law Nol to 3 raised by the appellant standansweredagainsttheappellant and the appeal standsdismissed However in the peculiarfacts and circuinstancesof the case thepartiesare left to best their own costs KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 77 RSA No22420f 1990 10 1 A copy of this judgment be sent to the trial Court for strict 1 JUDGE July 2010 j SV 0 1 0 C I C I Z r I 08 vm Z 14 tl C 1 14 cl KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document