Regular Second Appeal No. 1076 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1076 of 2009 Date of decision : April 19, 2011 Smt. Ramesh ....Appellant versus Sheo Narayan and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Parmod Parmar, Advocate, for the appellant L.N. Mittal, J. (Oral) Plaintiff Smt. Ramesh having lost in both the courts below has filed the instant second appeal. Plaintiff is daughter of Sheo Narayan defendant no. 1. Hawa Singh defendant no. 2 is brother's son of defendant no. 1. Defendant no. 1 has suffered consent decree dated 22.2.1994 in favour of defendant no. 2 regarding the suit land thereby declaring defendant no. 2 to be owner in possession of the suit land. The plaintiff in the instant suit has challenged the said consent decree dated 22.2.1994 alleging that plaintiff is owner in possession of the suit land and revenue record requires correction to this effect. The plaintiff also sought permanent injunction. The plaintiff Regular Second Appeal No. 1076 of 2009 -2- alleged that she is in cultivating possession of the suit land of the share of her father defendant no. 1 because defendant no. 1 was not residing in the village for the last several years. The plaintiff has been in possession of the suit land as its owner. Defendant no. 1 is a man of vices and has suffered the impugned consent decree. The plaintiff is owner of the suit land by adverse possession. The plaintiff has no brother but has two sisters who are also in adverse possession of the suit land. Defendants contested the suit and pleaded that the impugned consent decree is legal and valid and defendant no. 2 is owner in possession of the suit land. Plaintiff has no concern therewith. It was denied that defendant no. 1 has bad habits. The plaintiff never remained in cultivating possession of the suit land. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Narnaul vide judgment and decree dated 28.1.2005 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Narnaul vide judgment and decree dated 5.12.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff-appellant claimed to be owner in possession of the suit land by adverse possession. However, any person in adverse possession cannot file suit claiming to have become owner of the suit land by adverse possession because adverse possession can be set up as defence only. In this view, I am supported by two judgments of this Court in Bhim Singh & Regular Second Appeal No. 1076 of 2009 -3- Ors. vs. Zile Singh & Ors., 2006(3) Civil Court Cases 479 (P&H) and Dewaki & Ors vs. Dayawanti & Ors., 2006(3) Civil Court Cases 615 (P&H). Consequently, the very basis of the suit filed by the plaintiff is not tenable. In addition to the aforesaid, the plaintiff has failed to prove that she is in possession of the suit land or that she remained in possession of the suit land for more than 12 years preceding the filing of the suit or that her possession was adverse. Bald oral statement of the plaintiff that she is in possession of the suit land for more than 15 years has no probative value in the absence of other evidence. On the other hand, even if the plaintiff had been in possession of the suit land, her possession could not deemed to be adverse being daughter of owner defendant no. 1. The plaintiff also did not allege as to when she came in adverse possession of the suit land and as to when her alleged adverse possession commenced. The plaintiff had also moved application dated 3.11.1992 Ex. P1 in a previous suit filed by Matadin father of defendant no. 2 against defendant no. 1. In the said application, the plaintiff pleaded that there was family settlement about three years ago between her and her father defendant no. 1. The said plea of the plaintiff in application Ex. P1 further demolishes the case set up by the plaintiff-appellant in the instant suit. Revenue record does not record the possession of the plaintiff. There is also practically no other evidence to prove the possession of the plaintiff except oral evidence which is not sufficient to rebut the entries made in the revenue record. There is concurrent finding recorded by both Regular Second Appeal No. 1076 of 2009 -4- the courts below against the plaintiff-appellant. The said finding is based on analysis and appreciation of evidence and is not shown to be perverse or illegal. Consequently, the said finding does not warrant interference in second appeal. In addition to the aforesaid, the plaintiff-appellant has no right or locus standi to challenge the consent decree dated 22.2.1994 suffered by defendant no. 1 in favour of his nephew defendant no. 2. Defendant no. 1 is alive and he has not challenged the aforesaid decree. Plaintiff as daughter of defendant no. 1 has no right to challenge the aforesaid decree. Learned counsel for the appellant contended that defendant no. 2 has not proved the family settlement on the basis of which consent decree dated 22.2.1994 was passed. The contention is misconceived and not tenable because question of the said family settlement stood adjudicated and concluded by the passing of consent judgment and decree dated 22.2.1994. Factum of the family settlement was admitted by defendant no. 1 in the previous suit in which the said consent decree was passed. Consequently, the said factum was not required to be proved again in the instant suit. The said decree could be challenged on the basis of fraud, undue influence and coercion etc. but even on those grounds defendant no. 1 and not the plaintiff could challenge the said decree. Moreover, the said decree has not been challenged on these grounds. Decree passed by the court cannot be challenged in subsequent suit on the ground that basis of the decree was factually incorrect. Factual basis cannot be reopened and readjudicated in subsequent suit. The same would also be barred by resjudicata. Regular Second Appeal No. 1076 of 2009 -5- For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) April 19, 2011 Judge 'dalbir'