RSA No.4903 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4903 of 2009(O & M) Date of Decision: 18.03.2011. Ajmer Singh ……Appellant Versus Ranjit Singh and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ashok Bhardwaj, Advocate for the appellant. Mr. Harsh Garg, Advocate for respondent Nos.1 and 2. L.N. MITTAL, J (ORAL) Ajmer Singh-plaintiff having lost in both the Courts below has filed the instant second appeal. Plaintiff-appellant alleged that he along with proforma defendant/respondent Nos.3 to 5 is owner of the suit land measuring 13 marlas comprised of khasra No.310/2, but defendants No.1 and 2 have illegally occupied the same. Accordingly, the plaintiff filed suit for possession of the suit land and also claimed ancillary relief of permanent injunction. RSA No.4903 of 2009 (O & M) - 2 - Proforma defendant Nos.3 to 5 were proceeded ex parte. Defendants No.1 and 2 put in appearance, but failed to file written statement and their defence was struck off. Learned Additional Civil Judge (Senior Division), Moonak vide judgment and decree dated 10.08.2007 dismissed the plaintiff’s suit. Learned District Judge, Sangrur vide judgment and decree dated 18.11.2009 has dismissed the first appeal preferred by the plaintiff. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Perusal of Jamabandi Ex.P-1 for 1999-2000 reveals that plaintiff and his brother Karnail Singh and widow Surjit Kaur and son Angrej Singh of another brother Hardev Singh (defendant Nos.3 and 4) were owners of the suit land. It appears that subsequently Karnail Singh also died and was succeeded by his widow also named Surjit Kaur as depicted by copy of khasra Girdwari Ex.P-4 produced by additional evidence in lower appellate Court. Be that as it may, plaintiff is cosharer in the suit land to the extent of 1/3rd share and consequently, plaintiff has right to file suit for possession of the suit land against defendant Nos.1 and 2, who are alleged to be trespassers therein. RSA No.4903 of 2009 (O & M) - 3 - Learned counsel for respondent Nos.1 and 2 contended that jamabandi does not depict the ownership of plaintiff and proforma defendants in the shares as pleaded in the plaint. However, any discrepancy in respective shares of plaintiff and proforma defendant Nos.3 to 5 has no bearing on the merits of the instant suit. The plaintiff as cosharer in the suit land can seek possession of the suit land from defendant Nos.1 and 2, if they are found to be in unauthorized possession of the suit land. Both the Courts below have held that defendant Nos.1 and 2 are not proved to be in possession of the suit land. This finding of the Courts below is patently perverse and illegal and is based on misreading and misappreciation of evidence. It is the case of the plaintiff in the plaint as well as in the witness box that defendant No.1 and 2 are in unauthorized possession of the suit land. The said pleading and evidence stands unrebutted. Courts below on the basis of entries in revenue record held that plaintiff and other cosharers are in possession of the suit land. However, it is the plaintiff’s grievance that defendants No.1 and 2 had occupied the suit land illegally. Merely because the same is not reflected in the Jamabandi and Khasra girdawari, it cannot be said that defendant Nos.1 and 2 are not in possession of the suit land. On the other hand, plaintiff has produced application Ex.P-2 moved by him to Assistant Collector against Bhagwan Singh father of defendant Nos.1 and 2 and against other persons for demarcation of the suit land. Consequently, demarcation was conducted by Kanungo vide demarcation report RSA No.4903 of 2009 (O & M) - 4 - Ex.P-3 and it was found that defendant Nos.1 and 2 are in possession of the suit land. This evidence has not been rebutted. It is correct that Kanungo, who made the demarcation, has not been examined as witness. However, no objection was raised when the demarcation report was tendered in evidence. The contention that demarcation was made in the absence of defendants also cannot be accepted because their father was party to the demarcation application. Perusal of the demarcation report reveals that all the parties had been informed about the demarcation. Consequently, the demarcation report proves that defendant Nos.1 and 2 are in unauthorized possession of the suit land. Finding of the Courts below to the contrary is illegal and perverse and based on misreading and misappreciation of evidence and, therefore, has to be reversed in exercise of second appellate jurisdiction as it raises substantial question of law which has to be answered in favour of the plaintiff- appellant. Learned counsel for respondent Nos.1 and 2 cited the judgment of Hon’ble Apex Court in the case of P.H. Dayanand versus S. Venugopal Naidu and others, 2009(1) RCR (Civil) 304. In that case, the plaintiff filed suit for possession of the property on the basis of title, but the plaintiff failed to prove his title. It was held that failure of defendants to prove their title would not enable the plaintiff to decree, unless he proves his own title. In the instant case, however, the plaintif has proved his title by unrebutted evidence. The plaintiff is cosharer in the suit land along with proforma defendants. RSA No.4903 of 2009 (O & M) - 5 - Consequently, judgment in the case of P.H. Dayanand (supra) has no applicability to the facts of the instant case. For the reasons aforesaid, the instant second appeal is allowed and judgments and decrees of the Courts below are set aside and suit filed by the plaintiff for possession of the suit land is decreed. (L. N. MITTAL) JUDGE 18.03.2011 A.kaundal