RSA No. 925 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.925 of 2008 Baj Singh and another ....Appellants VERSUS Gurdev Singh ....Respondent RSA No.927 of 2008 Baj Singh and another ....Appellants VERSUS Gurdev Singh ....Respondent Decided on : 28-04-2009 CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. I.S.Brar, Advocate for the appellants. Mr. S.C.Arora, Advocate for the respondent. MAHESH GROVER, J This order will dispose of two appeals bearing RSA No. 925 of 2008 and 927 of 2008. These are plaintiffs' second appeals directed against the judgments of the learned Trial Court dated 4.4.2006 and that of the learned First Appellate Court dated 3.10.2007. The facts of the case are that plaintiffs-appellants filed a suit for permanent injunction seeking to restrain the respondent from interfering in their possession. It was pleaded that appellant no.1 was in peaceful RSA No. 925 of 2008 2 possession of the suit property for the last 18 years and he is using the suit property for his residence and cattle shed and khurli etc. He also stated that he had constructed rooms thereon and that he has also become owner of the suit property by way of adverse possession. The respondent-defendant contested the suit and filed written statement denying all the averments made by the plaintiffs. He also filed counter claim seeking possession of the suit property. It was pleaded that he was owner of the suit property and no injunction can be granted against him and that the possession of the plaintiffs was permissive. He had permitted appellant no.1 to stay on the disputed property after he was released from jail after having undergone punishment in a criminal case under Section 302 IPC. On 24.5.2000 he had purchased land from one Rajinder Singh vide registered sale deed. The respondent had asked the appellants to vacate the premises but they did not do so and therefore a compromise was entered into wherein it was resolved that the plaintiffs- appellants will vacate the premises within four months and the defendant had to pay RS. 1,12,000/-. It was also agreed in the compromise that if the plaintiffs-appellants failed to vacate the property in question within a period of four months then the defendant was to take possession without payment. Since the appellants failed to comply with the terms and conditions of the compromise they are liable to be evicted from the premises. In replication filed by the appellants the averments made in the written statement were denied. The compromise was stated to be result of forgery. Both the parties in the suit filed by the plaintiffs went to trial on the following issues:- RSA No. 925 of 2008 3 1. Whether the plaintiffs are in lawful and peaceful possession over the suit property? OPP. 2. Whether the plaintiffs are entitled to permanent injunction as prayed for?OPP. 3. Whether the suit for injunction is not maintainable?OPP. 4. Whether any compromise was effected between the parties, if so, its effect?OPD. 5. Relief. and following issues were framed in the counter claim filed by the defendant:- 1. Whether the defendant Gurdev Singh is entitled to the possession from the plaintiffs?OPD. 2. Whether the counter claim is bad for the non-joinder of the necessary parties?OPP. 3. Whether the counter claim is not maintainable?OPD. 4. Relief The learned Trial Court and the learned First Appellate Court came to the conclusion that the possession of the appellants was not in dispute but concluded that they had no right to be in possession of the suit property as the respondent-defendant was a true owner of the property on the basis of the sale deed and consequently entitled to get back the possession. The injunction suit of the appellants was consequently dismissed while the counter claim filed by the respondent was allowed. This has resulted in filing of two regular second appeals by the plaintiffs; one against the findings by which the suit for permanent injunction was dismissed and other directed against the counter claim being allowed. RSA No. 925 of 2008 4 It has been contended by the learned counsel for the appellants that the findings recorded are perverse as they have not appreciated the fact that they were in possession of the suit property and therefore, injunction ought to have been granted to them. It was further pleaded that there was sufficient evidence to show that they were in uninterrupted possession for last the 18 to 19 years. Therefore, they should have been declared the owner of the suit property by way of adverse possession. On the other hand, learned counsel for the respondent contended that sale deed in his favour dated 24.5.2000 was never in dispute and he being the owner of the property, the appellants could not be granted injunction specially when their possession on the suit property was permissive as in peculiar circumstances he had permitted appellant no.1 to stay on the disputed property after he had been released from jail having suffered a conviction under Section 302 IPC. He thus pleaded that the judgments of both the Courts below are correct and do not warrant any interference. I have heard learned counsel for the parties and have perused the impugned judgments. The appellants has pleaded that appellant no.1 was in possession of the suit property since the year 1981. He has also admitted in his testimony that the suit property was purchased by the respondent from Rajinder Singh. Rajinder Singh in turn had purchased the property from Sadhu Singh. In the wake of this clear cut admission of the appellant no.1 himself, the sale deed in favour of the respondent and his consequent ownership cannot be disputed. The appellants pleaded adverse possession also implying thereby that the ownership of the respondent was admitted by RSA No. 925 of 2008 5 them. The appellants pleaded their possession but have been unable to show their right to possess the suit property. There is no document on record from where it could be inferred that they had entered the possession and retained it to the detriment of the respondent without his protest so as to conclude that their possession was hostile to the respondent. The respondent on the other hand pleaded that appellant no.1 had been put in possession after he had been released from jail having suffered conviction under Section 302 IPC. He also brought on record the evidence that the appellant no.1 was related to him. In any eventuality to declare the possession of the appellants to be hostile to the respondent so as to convert it into adverse possession, they had to show when they entered into the possession and when such possession become hostile to the respondent. No such facts have been pleaded. In this view of the matter, when question of possession was not in dispute and also the ownership of the respondent was not disputed, the counter claim which has been allowed by the Courts below on the reasoning adopted by them cannot be faulted with. In this view of the matter, when the right to possess has been decreed in favour of the respondent, the appellants' right to injunct the respondent cannot be sustained. No infirmity in the findings of the Courts below has been shown so as to warrant interference in regular second appeal. The appeals being devoid of any merits are hereby dismissed. April 28 , 2009 (Mahesh Grover) rekha Judge