Regular Second Appeal No. 948 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 948 of 2010 (O&M) Date of decision : March 02, 2010 Bhagwan Singh ....Appellant versus Smt. Suraj Kaur and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. NS Shekhawat, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 2708.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 4 days in filing the appeal is condoned. CM No. 2710.C of 2010 Deficiency in court fee has been made good. The application is accordingly allowed as prayed for. RSA No. 948 of 2010 Defendant Bhagwan Singh has filed the instant second appeal. Respondents no. 1 to 4, 11 and 12 and Krishna predecessor of respondents no. 5 to 10 filed suit against the defendant-appellant for possession of suit property comprised of khasra no. 858 measuring 8 marlas. The plaintiffs alleged that their father Bhaley Ram was owner in possession Regular Second Appeal No. 948 of 2010 (O&M) -2- of the suit property. After death of Bhaley Ram, the plaintiffs became owners in possession thereof. Plaintiff no. 4 Jai Parkash allowed the defendant to use a portion of the suit property as licencee for some time. The defendant assured that he would hand over vacant possession of the plot whenever required by the plaintiffs. However, the defendant occupied the whole of the property without consent of the plaintiffs. Ultimately, the defendant refused to vacate the suit property. The plaintiffs, therefore, filed suit for possession of the suit property. The defendant, interalia, pleaded that plaintiff no. 4 Jai Parkash and Bhaley Ram father of the plaintiffs were owners in possession of the suit plot having half share each. On the death of Bhaley Ram, his half share was inherited by plaintiff no. 4. Plaintiff no. 4 agreed to sell the suit plot to the defendant on 17.6.1986 for Rs 5000/- and received the entire sale consideration and executed receipt for the same and handed over possession of the suit plot to the defendant who became owner in possession thereof. The suit property was coparcenary property of plaintiff no. 4 and his father. Remaining plaintiffs being daughters of Bhaley Ram were not the members of coparcenary and have no right over the suit property. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Jhajjar vide judgment and decree dated 26.4.2007 decreed the suit qua 6/7th share of the suit property but dismissed the suit regarding 1/7th share of plaintiff no. 4 in the suit property. Defendant as well as plaintiff no. 4 preferred appeals against judgment and decree of the trial court. Learned District Judge, Jhajjar vide judgment and decree dated 14.9.2009 dismissed the appeal Regular Second Appeal No. 948 of 2010 (O&M) -3- preferred by the defendant and allowed the appeal preferred by plaintiff no. 4 and resultantly the suit stands decreed for possession of the entire suit property. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the defendant-appellant having purchased the suit property from plaintiff no. 4 Jai Parkash vide writing dated 17.6.1986 for Rs 5000/- became owner in possession thereof. The contention cannot be accepted. Firstly, Jai Parkash plaintiff no. 4 who allegedly executed said writing was not owner of the entire suit property. He had only 1/7th share therein. The remaining plaintiffs are not bound to the said writing because they were not party to it. Secondly, the said writing, as per contention of the learned counsel for the appellant, purports to have sold the suit property to the defendant. However, the alleged sale being for Rs 5000/- could not have been effected without registered sale deed. Consequently, on the basis of un-registered writing, the defendant cannot claim to have purchased suit property. Thirdly, even according to the written statement, the defendant had only agreed to purchase the suit property and paid the sale consideration vide writing/receipt dated 17.6.1986. The defendant never filed any suit for specific performance of the agreement allegedly entered into by plaintiff no. 4 in favour of defendant. Thus examined from any angle the defendant has not become owner in possession of the entire suit property and has not become owner even of 1/7th share of plaintiff no. 4 who Regular Second Appeal No. 948 of 2010 (O&M) -4- allegedly executed writing dated 17.6.1986. Faced with the aforesaid situation, learned counsel for the appellant contended that the defendant has become owner of the suit property by adverse possession having remained in possession of the suit property since the date of aforesaid writing. This contention also cannot be accepted because no such plea was even raised in the written statement. Without pleading, the defendant in the instant second appeal cannot be permitted to raise the plea of having become owner of suit property by adverse possession. On the other hand, according to pleading of the defendant, he was never in adverse possession inasmuch as he was allegedly delivered possession by plaintiff no. 4 pursuant to writing dated 17.6.1986 and consequently, alleged possession of the defendant pursuant to said writing was permissive and not adverse. For the reasons recorded hereinabove, I find no merit in the instant second appeal. There is no illegality or perversity in the judgment of lower appellate court. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) March 02, 2010 Judge 'tiwana'