R.S.A. No. 247 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 247 of 1985 Date of decision: 17.02.2010 Chander Bhushan ....Appellant versus Sadhu Ram and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. H.R. Bhardwaj, Advocate, for the appellant. None for the respondents. *** VINOD K. SHARMA, J. (ORAL) The plaintiff/appellant has challenged the judgment and decree dated 29.11.1984, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant for permanent injunction, was partly decreed. The plaintiff/appellant filed a suit on the pleading, that he was owner in possession of the site in dispute having purchased the property from Gopal Shah Chela Pritam Shah, resident of Kharar, vide sale deed dated 20.2.1981. The defendants were said to have no concern with the property, but they were threatening to dispossess the plaintiff from the suit property. The case of the plaintiff was, that the defendants were storing building material near the site and they wanted to encroach upon the suit land forcibly. The suit was contested, wherein the averments made by the plaintiff in the plaint were denied. The stand taken by the defendant/respondents was, that the whole site mentioned in the sale deed and in the plaint was never owned and possessed by Gopal Shah, R.S.A. No. 247 of 1985 -2- from whom the plaintiff is alleged to have purchased the site. The defendant/respondents admitted, that Gopal Shah was owner but not in possession of site measuring 27'x26' and adjoining the said site on the eastern side, there was a site measuring 26'x27', which is in possession of Sudarshan Kumar, and adjoining to it, is the property of defendant/respondents measuring 26'x20' and they were in possession as owner from the time of their forefathers. It was asserted by the defendant/respondents that they had constructed bhatti and the site was in their possession as owner. It was denied that the plaintiff was being dispossessed. The defendant/respondents denied having interfered with the site measuring 26'x20', as it was claimed to be in possession of the defendants. The plea of possession by plaintiff was denied, on the ground that the plaintiff could not claim possession of the site as he was not owner of the site. In alternative, plea of adverse possession was raised. The defence was also taken, that there was earlier dispute between the defendants and Gopal Shah, and the matter was taken to the police, where Gopal Shah admitted the ownership and possession of the defendants regarding property in dispute. It was pleaded case of the defendants that the parties are bound by the compromise. In replication, the plaintiff reiterated the stand taken in the plaint and denied the averments made in the written statement. On the pleadings of the parties, following issues were framed: “1. Whether Gopal Shah was the owner of the property marked by letters A B C D and the plaintiff has purchased the same from him vide sale deed dated 20.2.1981? OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to the injunction prayed for? OPP 3. Whether defendants are in possession of site R.S.A. No. 247 of 1985 -3- measuring 26'x20' out of the site in dispute. If so in what capacity? OPD 4. Whether the plaintiff is bound by the compromise effected between Gopal Shah and Sudarshan Kumar. If so, its effect? OPD 5. Whether the plaint is correctly valued for the purposes of court fee and jurisdiction? OPP 6. If defendants are not proved to be owners by title have they become owners by adverse possession? OPD 7. Whether the defendants are debarred from taking the plea of adverse possession by the principal of constructive res judicata? OPP 8. Relief.” Though on earlier occasion the suit filed by the plaintiff was dismissed on 5.2.1982, but in appeal the case was remanded back. On appreciation of evidence led by the parties, the learned trial Court on issue No.1 held that in view of the admission made in the written statement it stood proved that Gopal Shah was owner of site measuring 27'x26' out of the site in dispute towards western side of the site which was in possession of Sudarshan Kumar. Issue No.1 was, therefore, partly decided in favour of the plaintiff/appellant. The plaintiff was, therefore, held entitled to injunction qua the property held to be under the ownership of the plaintiff/appellant. Issue No.4 was decided against the defendants as the compromise relied upon by the defendants, was executed in the police station and also that the plaintiff was not party to the compromise. Issue No.5 was also decided in favour of the plaintiff/appellant. Issue No.7 was decided against the plaintiff and in favour of the defendants as not pressed. Consequently, the suit was partly decreed and the defendants were restrained from interfering in the peaceful possession of the R.S.A. No. 247 of 1985 -4- plaintiff qua the site measuring 27'x26' on the western side of the disputed plot. In appeal, the findings recorded by the learned trial Court were affirmed and appeal filed by the plaintiff/appellant was dismissed. Learned counsel appearing on behalf of the appellant contends that the following substantial questions of law arise for consideration in this appeal: - “1. Whether a person claiming adverse possession does not admit the title of the opposite party? 2. Whether the land measuring 26'x27' can be said to be in possession of Sadhu Ram when he made a kacha bhatti for parching grain only on a small part of it? 3. Whether preparing a kacha bhatti, which is demolished and re-erected in a rainy season is the type, which can lead to a finding of possession, much less adverse possession?” In support of the substantial questions of law, referred to above, the learned counsel for the appellant vehemently contended, that once the defendants had raised a plea of adverse possession, it amounted to admission of ownership of the plaintiff over the suit property, therefore, the learned Courts below committed an error in holding that the plaintiff/appellant had failed to prove ownership over the site ABCD for want of title of his vendor. It is also the contention of the learned counsel for the appellant, that the learned Courts below wrongly held the defendant/respondents to be in possession of land measuring 26'x27' merely because a katch bhatti for parching of grain was constructed thereon. The contention of the learned counsel for the appellant was, R.S.A. No. 247 of 1985 -5- that temporary bhatti could not prove the possession as it was to be taken to be a vacant plot, the possession of which goes with the title. On the third substantial question of law again the same contention was repeated, that the bhatti being temporary structure could not prove the possession of the defendant/respondents. On the contentions referred to above, the learned counsel for the appellant prayed for deciding the substantial questions of law in favour of the appellant, and reversing the judgment and decree passed by the learned Courts below by decreeing the suit filed by the plaintiff/appellant in totality. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It was the plaintiff's suit for injunction in the alternative for possession on the basis of title. It was for the plaintiff/appellant to prove his ownership to seek injunction. It cannot b disputed that in spite of specific stand taken in the written statement, that Gopal Shah was not owner of the whole site ABCD, no evidence was led to prove the title of Gopal Shah, from whom the plaintiff/appellant was drawing his title. Though Gopal Shah appeared in the witness box to claim that he was owner of the site ABCD, which was sold to the plaintiff/appellant, but in cross-examination he was unable to prove his title, as he claimed the property to have been donated by his guru, but he could not point out the person who had donated the property. Rather, the plaintiff/appellant failed to prove the title of Gopal Shah. However, in view of the fact that there was admission by the defendant/respondents that Gopal Shah was owner of site measuring 26'x20', the appellant was, therefore, held to be the owner of that part of the property. Once the plaintiff/appellant has failed to prove his possession, R.S.A. No. 247 of 1985 -6- the learned Courts below rightly held that the plaintiff was only entitled to injunction qua the property in his ownership. The learned Courts below rightly held, that the decree for possession could not be passed in favour of the plaintiff/appellant, as he failed to prove his ownership qua the land in possession of the defendant/respondents. Merely because plea of adverse possession was taken in the alternative, the suit of the plaintiff could not be decreed as admittedly the plaintiff/appellant himself was not owner for more than 12 years. Gopal Shah also could not prove his ownership, so as to pass a title to the plaintiff/appellant. The substantial questions of law raised are answered against the appellant. Consequently, this appeal is dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 17, 2010 R.S.