RSA No.1919 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1919 of 2009 Date of Decision:17.09.2010 Smt.Bimla Wati & Ors. .... appellants Versus Mohan Lal .....respondent RSA No.2220 of 2009 Date of Decision:17.09.2010 Smt.Bimla Wati & Ors. .... appellants Versus Ravinder .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Dinesh Ghai,Advocate for the appellants Mr.Arvind Mittal, Advocate for the respondent **** RAKESH KUMAR GARG J. This judgment shall dispose of two regular second appeals i.e.RSA No.1919 of 2009 and RSA No.2220 of 2009 as on similar facts same substantial questions of law, have been raised before this Court in both these appeals. For convenience sake, the facts are taken from RSA No.1919 of 2009. The plaintiff-respondent filed the instant suit for possession alleging that he was the owner in possession of the house in question RSA No.1919 of 2009 2 which he purchased vide registered sale deed dated 23.01.1946 and after the purchase, he made constructions and improvements after obtaining due sanction from the Municipal Committee. Sh.Gian Chand, who was the brother of the plaintiff was residing in the house in question as tenant under him. Since, Gian Chand was the real brother of the plaintiff, no rent note was executed in good faith. He continued in possession till his death on 01.02.1990. The appellants succeeded to the tenancy rights of Gian Chand. An ejectment application was filed against them which was contested. However, the relationship of landlord and tenant was denied by the appellants in the aforesaid ejectment application. Since they had denied the relationship of landlord and tenant in the ejectment application learned Rent Controller, Kharar dismissed the same vide order dated 07.01.1992. And after passing of the aforesaid order they had no right to remain in possession and plaintiff-respondent being the owner of the suit property was entitled to the possession. The plaintiff-respondent also claimed damages/mesne profit from the appellants.Since the defendants/appellants failed to vacate the house in question and put the plaintiff-respondent into possession, the cause of action arose to file the present suit. The suit was contested by the appellants raising various preliminary objections. However, on merits it was claimed that Gian Chand was in possession of the house in dispute which was open, hostile, notorious, known to public, without any interruption and after his death, appellants were in possession of the suit property in the same capacity and as such they have become owners of the suit property by way of adverse possession. It was further stated that the plaintiff never came in possession of the suit property. The tenancy can be created either by agreement or contract, but, in the present case, neither there was any agreement nor contract, as such, there was no relationship of landlord and RSA No.1919 of 2009 3 tenant in between the plaintiff and Gian Chand. On the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is owner of the suit property? OPP 2. Whether the plaintiff is entitle to the possession of suit property? OPP 3. Whether the plaintiff is entitled to recover a sum of Rs. 36,000/-from defendants on account of damages for use and occupation of the suit property? OPP 4. Whether the suit is his by principle of res judicata? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 7. Whether the defendants No. 2 to 6 have become owners of the suit property by way of adverse possession? OPD 8. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 9. Whether the suit is bad for misjoinder of defendants No. 7 to 9? OPD 10.Relief. Both the Courts below on appreciation of evidence have recorded a concurrent finding of fact that the appellants have failed to prove their plea of adverse possession taken by them and decreed the suit. It is well settled that the High Court will not interfere in the impugned judgment and decree exercising its jurisdiction under Section 100 of the Code of Civil Procedure. In the case of “Koppisetty Venkat Ratnam(D) through LRs vs. Pamarti Venkayamma. 2009(3) RCR Civil 155,” the Apex Court held as under:- “The scope of Section 100 has been drastically curtailed RSA No.1919 of 2009 4 and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C.only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantiate questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble.” No substantial question of law arsies in these appeals. In view of the aforesaid authoritative law settled, I find no merit in these appeals and both the appeals are dismissed in limine. (RAKESH KUMAR GARG) JUDGE 17.09.2010 neenu