RSA No.1968 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1968 of 2006 Date of Decision: 8.10.2009 Gurdev Kaur .....Appellant Vs. Dev @ Dev Singh and another ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Ms. Jatinderjit Kaur, Advocate for the appellant. Mr. M.L. Saggar, Sr. Advocate with Ms. Taranjeet Kaur, Advocate for respondent no.2. .... RAJIVE BHALLA, J (Oral) The appellant challenges the judgement and decree dated 25.4.2006, passed by the Additional District Judge, Nawanshahr, accepting the appeal filed by respondent no.1, setting aside the judgement and decree dated 11.11.2005, passed by the Civil Judge (Junior Division), Nawanshahr and as a consequence dismissing her suit. The plaintiff-appellant filed a suit for permanent injunction to restrain the respondents from interfering in plot no.31, measuring 3 marlas. It was alleged that Kaushaliya Devi was allotted this land on 11.5.1958. The appellant has purchased the suit land from Kaushaliya Devi vide registered sale deed dated 1.9.1997. It was prayed that as the appellant is owner in possession of the suit land, the respondents be restrained from interfering in her possession. RSA No.1968 of 2006 2 The defendants/respondents filed a reply alleging that the suit land was allotted to Malkiat Singh, son of Sarmukh Singh and bears H.No.126. Sarmukh Singh entered into an agreement to sell the suit property to the appellant on 13.6.1997 after receipt of Rs.40,000/-, the entire sale consideration and delivered possession to respondent no.1. The defendant/respondent no.1 has constructed a room on this property and therefore the suit be dismissed. On the pleadings of the parties, the learned trial court framed the following issues :- “1. Whether the plaintiff is the owner in possession of suit property ? OPP. 2. Whether the plaintiff is entitled to permanent injunction, as prayed for ? OPP. 3. Whether the suit is not maintainable in present form ? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit ? OPD 5. Relief.” Upon consideration of the pleadings, the evidence adduced and the arguments addressed, the trial court decreed the suit by holding that as the appellant has purchased the suit land by a registered sale deed and as respondent no.1 has no connection with the suit property, the respondents are restrained from interfering in her possession. Aggrieved by the aforementioned judgement and decree, respondent no.1 filed an appeal. Vide judgement and decree dated RSA No.1968 of 2006 3 25.4.2006, the Additional District judge, Nawanshahr, accepted the appeal by holding that the appellant has failed to adduce any evidence to establish her possession over the suit land. It was further held that the allotment letter Ex.PX, does not record the boundaries of the plot. In the absence of any evidence that the suit land and the property referred to in the allotment letter Ex.PX are the same, the suit has to be dismissed. As regards respondent no.1's plea, that he is in possession of Plot No.126, the first appellate court held that in the absence of the boundaries of Plot No.126 mentioned in the revenue Sikni or any other evidence as to its boundaries, it could not be held that respondent no.1 is in possession of Plot No.126. In essence the first appellate court rejected the pleas raised by both parties. Counsel for the appellant submits that Plot No.31 was allotted to Kaushaliya Devi, who sold it to the appellant. The first appellate court, therefore, could not have accepted the appeal and dismissed her suit by holding that there is no evidence on record to link the suit land to Plot No.31. It is argued that recitals in the sale deed establish that the appellant purchased the suit land and therefore, the judgement and decree passed by the first appellate court is incorrect. It is further argued that the appellant's possession has been proved by Darshan Singh, Lambardar, who is a witness to the sale deed and even if there are some ambiguities in the description of the property, the suit should not have been dismissed. It is further argued that respondent no.1, filed a suit for permanent injunction with respect to Plot No.126. The suit was dismissed by the trial court. Civil Appeal No.107 of 2005 Dev Singh V. Gurdev Kaur filed by respondent no.1 was also dismissed by holding that respondent no.1 has failed to produce any evidence as to his possession over Plot RSA No.1968 of 2006 4 No.126. Counsel for the respondent, however, submits that in the absence of proof as to the boundaries of Plot No.31, or any revenue document to identify the Plot No.31, the first appellate court rightly accepted the appeal and dismissed the suit. It is argued that the appellant has failed to produce any evidence to establish her possession. The mere fact that the first appellate court has recorded an adverse finding against the respondent no.1 with respect to Plot No.126 would not entitle the appellant to any relief, as it was for the appellant to prove her possession, based upon her plea of ownership. I have heard learned counsel for the parties and perused the impugned judgements. Both parties claim to be in possession of the suit land. The appellant claims possession on the basis of a registered sale deed whereas respondent no.1 claims possession on the basis of an agreement to sell. The appellant claims that it bears Plot No.31 and whereas respondent no.1 claims that it bears Plot No.126. The trial court decreed the suit whereas the appellate court has accepted the appeal and held that neither party has been able to establish its possession. In the absence of any evidence or any revenue record to establish the identity of the suit land, i.e. whether it be Plot No.31 or Plot No.126, the first appellate court had no option but to reject the claim of both parties. The onus to establish that the suit land is Plot No.31 or Plot No.126 lay upon the parties. As both the appellant and respondent no.1 have failed to link the suit land to their sale deed and agreement to sell respectively, the first appellate court was left with no option but to hold as RSA No.1968 of 2006 5 above. It would also be necessary to mention that an independent suit filed by respondent no.1 claiming that he was in possession of Plot No.126 was also dismissed. I find no error of law in the impugned judgements, as would raise a substantial question of law. The finding that the appellant has failed to prove her possession over plot no.31 measuring 3 marlas is neither illegal nor perverse nor has the first appellate court ignored or misread any evidence. In view of what has been stated hereinabove, the appeal is dismissed with no order as to costs. 8.10.2009 (RAJIVE BHALLA) GS JUDGE