RSA No.2389 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2389 of 1987 Date of decision 26 .8.2011. Madan Lal and others ...... Appellants. versus Jai Ram and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. C.B.Kaushik, Advocate for the appellants. Mr. Alok Jain, Advocate for the respondent. K.C.PURI . J. Appellants-Madan Lal and others have challenged the judgment and decree dated 8.5.1987 passed by Shri R.N.Batra, learned Additional District Judge, Bhiwani vide which the appeal preferred by plaintiffs against the judgment and decree dated 31.1.1986 passed by Shri V.P.Aggarwal, Senior Sub Judge, Bhiwani was accepted and set aside the judgment and decree passed by the trial Court. Brief facts of the case of the plaintiff are that the suit property RSA No.2389 of 1987 2 was owned by Gangadhar and Ramjas. Ramjas died unmarried during the life time of Gangadhar, due to which Gangadhar became the owner of the said property. Ganga Dhar died issueless in the year 1965 and that the mutation of his inheritance was sanctioned in favour of defendants No.1 to 3. The plaintiffs as well as proforma defendants No. 4 to 8 were related to Gangadhar in equal degrees and as such were co-sharers in the suit land and therefore according to the pedigree -table mentioned in the trial Court judgment, plaintiffs No. 1 to 3 and proforma respondents Nos. 4 and 5 had 1/4th share and defendant No. 1 to 3 and proforma defendant Nos. 6 to 8 had one half share therein. It is further alleged that defendants No. 1 and 2 in collusion with the revenue officials got mutation No.28 dated 18.7.1965 entered in favour of defendant Nos. 1 to 3 and got the mutation sanctioned on 7.6.1966 which proceedings took place secretly and without any notice to the plaintiffs and proforma defendants No. 4 to 8 and were therefore illegal. The defendants No. 1 and 2 did not allow the plaintiffs to collect their share in Rabi 1982 crop and the plaintiffs were told that defendants No.1 to 3 were owners of the suit land. The plaintiffs thereafter made inquiries from Halqa Patwari and came to know regarding the sanctioning of mutation in favour of defendants No. 1 to 3. Hence the suit. Defendants No. 2 to 7 were served by substituted service, but only defendant No.2 appeared but no written statement was filed by him, while defendants No.3 to 7 were proceeded against ex parte. Madan Lal defendant No.1 contested the suit and pleaded that the plaintiffs had no relation with Ganga Dhar or Ramjas and that defendants No.1 to 3 were the sole legal heirs of Gangadhar, who was not heard of for the last many years RSA No.2389 of 1987 3 and that defendant No.1 had informed the Revenue Authorities in that respect, when mutation No. 28 dated 18.7.1965 was entered in the revenue record and a public notice was published in Partap Newspaper, but nobody filed any objection, due to which the mutation was sanctioned in favour of defendants No. 1 to 3. It was pleaded that the suit was time barred and was false and frivolous and further that the plaintiffs had no locus standi to file the suit. It was also pleaded that the plaintiffs had no cause of action and that the suit was not maintainable in the present form. It was further pleaded that the plaintiffs were estopped by their acts and conduct from filing the suit and that defendants No. 1 to 3 had become owners of the suit land by adverse possession. Plaintiffs filed replication, reiterating the pleas taken in the plaint and controverted those of the written statement. From the pleadings of the parties, the following issues were framed:- 1. Whether plaintiffs No. 1 to 3 and proforma defendants No. 4 and 5 are the owners in possession of 1/4th share in equal shares and plaintiff No.4 is owner in possession of 1/4th share of the land in dispute, as alleged? OPP 2. Whether the plaintiffs and proforma defendants are related to Gangadhar deceased in any way? OPP 3. Whether Gangadhar died in the year 1965? If so to what effect? OPP. 4. Whether the plaintiffs have no locus standi to file this suit? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaintiffs have no cause of action against the RSA No.2389 of 1987 4 defendants? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD 8-A Whether defendant No.1 has become owner of the suit land by way of adverse possession?OPD 9. Relief 7. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence dismissed the suit of the plaintiff vide judgment and decree dated 31.1.1986. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 31.1.1986, the plaintiff preferred the appeal before the First Appellate Court, who vide judgment and decree dated 8.5.1987 accepted the appeal. 9. Feeling dissatisfied with the aforesaid judgment and decreed dated 8.5.1987, the instant regular appeal has been preferred by the defendants/appellants. 10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 11. As per pedigree table, which has not been seriously disputed by the appellants, the plaintiffs and defendant Nos.1 to 3 are the legal heirs of Gangadhar and Ramjas has died. The First Appellate Court has returned a finding of fact admitting the revenue record and pedigree table that plaintiffs are the legal heirs of Gangadhar and on that account suit of the plaintiffs has been decreed. The finding of fact recorded by the First Appellate Court cannot be interfered in the regular second appeal. More so, RSA No.2389 of 1987 5 when no convincing argument has been advanced by the counsel for the appellants in this regard. The plea of adverse possession has rightly been disallowed by the First Appellate Court as there cannot be adverse possession against a cosharer unless there is ouster of that cosharer. There is nothing on the file to prove that plaintiffs/respondents have been excluded by the defendants in respect of joint possession. There is nothing on the file that judgment and decree passed by the First Appellate Court is the result of misguiding and mis-interfering the evidence of the file. So, it cannot be said that judgment of the First Appellate Court is in any way perverse. The question of relationship is a question of fact and that cannot be interfered in the regular second appeal. So, I have ho hesitation in holding that no substantial question of law has arisen in the present case. 12. In view of the above discussion, the appeal is without any merit and the same stands dismissed with costs. 13. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 26 , 2011 sv