R.S.A. No.283 of 1984 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.283 of 1984 (O&M) Decided on : 18-02-2010 Gurcharan Singh .... Appellant VERSUS Gurbachan Singh & others .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. N.C. Kinra, Advocate, and Mr. Harsh Kinra, Advocate, for the appellant. Mr. N.L. Sammi, Advocate, for the respondents. MAHESH GROVER, J. This Regular Second Appeal by the plaintiff is directed against the judgments and decrees dated 24.9.1981 and 1.8.1983 passed respectively by the Sub Judge, 1st Class, Jalandhar (referred to hereinafter as `the trial Court') and the Additional District Judge, Jalandhar (in short `the first appellate Court'), whereby the suit and appeal filed by the plaintiff-appellant, have been dismissed. The plaintiff-appellant filed a suit for possession by pleading therein that he has purchased 4 marlas of land from one Fakir Singh, who was arrayed as defendant No.4 in the suit, vide registered sale deed dated 19.12.1978 for total consideration of Rs.6,000/-. It was further alleged that after he was put in R.S.A. No.283 of 1984 (O&M) -2- possession, the same was forcibly taken by the respondents. He, thus, prayed that his suit for possession be decreed. Defendant No.4 Fakir Singh, who was the vendor supported the case of the plaintiff-appellant. All other defendants denied the ownership of the plaintiff regarding the suit property and pleaded that the disputed area is a part of their courtyard and also stated that defendant No.4 Fakir Singh could not legally sell the property. On the pleadings of the parties the following issues were framed:- 1. Whether the site in dispute is an integral part of the house of defendant No.1? OPD. 2. Whether the plaintiff is entitled to the possession of the suit property?OPP. 3. Whether the plan is correct?OPP. 4. Relief. Both the Courts below returned a finding that the plaintiff/appellant was not in possession of the property and also held that respondent No.4 had no right to sell the disputed property. The first Appellate Court observed that Fakir Singh was not in exclusive possession of the disputed area and that the oral partition, which had been projected before the Courts below, was not proved and consequently, the suit of the plaintiff for possession was dismissed. R.S.A. No.283 of 1984 (O&M) -3- Aggrieved by the said findings, the appellant is in Regular Second Appeal. While questioning the findings, learned counsel for the appellant has referred to the testimony of DW-1 DW-3 and DW-4 to contend that these have been totally overlooked by the Courts below and if a proper appreciation of the statements of these witnesses is made then it shows that all these witnesses had referred to the partition made by Suchet Singh, the father of the respondents, during his life time implying thereby that all the persons subsequent to the partition were in settled possession of their shares and respondent No.4 voluntarily alienated his share in favour of the appellant. He contends that since these cogent pieces of evidence have been ignored, the findings, which have been recorded by the Courts below, are contrary to the material and evidence on record and therefore, are perverse. He has further referred to the testimony of these witnesses to show that his possession was admitted by these witnesses, who conceded that the appellant has raised construction on the suit property. He, thus, contends that even if it is assumed that there is no partition of the land, yet his valid title and possession, which accrued to him on the basis of sale deed, could not be prejudicially effected by the action of the respondents and that he was entitled to protect his possession. He contends that if the partition is not accepted, even then he is a co-sharer and in view of the fact that the vendor i.e. Fakir Singh was in settled possession of the land, he also would be R.S.A. No.283 of 1984 (O&M) -4- entitled to protect his possession even if his ownership is doubted. Reliance was placed on the observations of the Full Bench of this Court in Ram Chander Versus Bhim Singh & others, 2008(3) R.C.R. (Civil) 685 . On the other hand, learned counsel for the respondents defended the judgments impugned herein to say that these are pure questions of fact, which have been determined in the absence of any substantial question of law. The interference in the Regular Second Appeal would be totally unwarranted. After hearing learned counsel for the parties, I am of the opinion that the following questions of law arise for consideration of this Court:- “1. Whether the findings recorded by both the Courts below by relying upon the cogent evidence in the shape of admissions made by the witnesses of the respondents, can be termed to be perverse in the given set of circumstances or not? 2. Whether a person, who is concededly the owner on the basis of validly executed sale deed and having become co-sharer by virtue of the same, is entitled to protect his possession, if it is established that he is in settled possession of a specific area or not?” The testimony of DW-1, DW-3 and DW-4, if examined, reveal that they, in their cross-examination, had admitted the fact that the father of the respondents namely Suchet Singh, had R.S.A. No.283 of 1984 (O&M) -5- partitioned the property during his life time. Thereafter, each of his successors including Fakir Singh, were in settled possession of their shares and Fakir Singh alienated his share in favour of the appellant. Fakir Singh, who was arrayed as defendant No.4 and was examined as PW-4 supported the case of the appellant and admitted the sale and also his being in settled possession of 4 marlas of property, which was the subject matter of the sale. In this view of the matter, when the sale deed was never questioned by the respondents, the ownership of the appellant and his possession over the suit property, could not have been doubted. All these witnesses mentioned above had categorically admitted that the appellant has raised construction on the disputed property implying thereby that after the sale deed was executed in his favour, the appellant got the possession and carried out construction on it. In such an eventuality, if the appellant has been dispossessed from the suit property then the question would be “whether he is entitled to possession and protection of his possession or not”. The Full Bench of this Court in Ram Chander's case (Supra) has categorically observed that where a co-owner in possession of a specific portion of the joint holding and recorded as such in the revenue record, transfers any right, title or interest from such a portion in his specific possession, to a vendee, then such a person would be entitled to protect the possession of the portion, which has been transferred to him, without asserting his exclusive ownership. R.S.A. No.283 of 1984 (O&M) -6- In view of above, if it is held that if the partition has not been established even then the appellant would have been entitled to protect his possession. Both the Courts below have totally ignored this aspect of the matter and therefore, the questions of law which have been framed above, are answered in favour of the appellant to say that the findings, which have been recorded by both the Courts below, are the result of complete misreading of the evidence and are perverse and therefore, liable to be set aside and further that the appellant was at best a co-sharer in the suit property even if the admission regarding partition is ignored and therefore, the appellant is entitled to protect his possession of a specific portion, which had been sold to him. As a sequel to the above discussion, the appeal is accepted and the impugned judgments & decrees are set aside. Consequently, suit of the plaintiff/appellant for possession of suit land stands decreed. All the pending applications are disposed of in view of above. 18th February, 2010. (MAHESH GROVER) Monika JUDGE