RSA No. 250 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH RSA No. 250 of 1988 Date of decision: 18.10.2011 Gurmail Singh and others ... Appellants versus Joginder Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.Lalit Sharma, Advocate, for the appellants. Mr.G.S.Dhillon, Advocate, for the respondents. ... JORA SINGH, J. RSA No. 250 of 1988 was preferred by Gurmail Singh, Gurtej Singh and Baldev Singh sons of Nand Singh, resident of Village Kaleke, District Sangrur, to challenge the judgment dated 27.10.1987 passed by Additional District Judge, Barnala, whereby appeal against the judgment and decree dated 15.3.1985 passed by Additional Senior Sub Judge, Barnala, was dismissed. Present appellants filed Civil Suit No.382 of 10.11.1982 for declaration against Joginder Singh and others on the allegation that the appellants are owners of land measuring 34 kanals 6 marlas bearing Khata No.21/66, Khasra No.58//10 (8-0), 11 (8-0), 12(8-0), (0-40-47), 19/2/2-19 (0-14-92), 20/7-7 (0-32-18), situated in the revenue estate of Village Kaleke. Earlier, their father Nand Singh was in possession of the land for the last about 50 years without payment of theka/batai etc. After the death of their father, they are in possession of the land for the last about 12 years RSA No. 250 of 1988 2 without payment of theka/batai to the respondents. Respondents are the owners of property in dispute but the appellants are in possession of the land in dispute for the last about 12 years. Their possession is open, continuous, uninterrupted and hostile to the knowledge of true owners. So, they have become owners by way of adverse possession. Respondent No.1 Joginder Singh filed written statement and contested the suit inter alia on the ground that the suit is not maintainable in the present form and the appellants have no cause of action. He was owner in possession of the property in dispute measuring 130 kanals 6 marlas till 7.6.1971. On 7.6.1971, respondent No.1 mortgaged 1/2 share with Ujagar Singh and remaining 1/2 share out of the land measuring 130 kanals 6 marlas was mortgaged with Surjit Singh. Possession was delivered to the mortgagees. Mortgagees, i.e., respondents No.2, 3 and 4 are in possession of the property in dispute. Appellants are in possession as tenants and not as owners. Respondent No.2 filed separate written statement. From the pleadings of the parties, following issues were framed:- “1. Whether the plaintiffs have become the owners of the land in dispute by way of adverse possession, as alleged? OPP. 2. Whether the plaintiffs are entitled to the injunction prayed for? OPP. 3. Whether the present suit is not maintainable as alleged? OPD. 4. Whether the plaintiffs have no locus standi to file the present suit? OPD. RSA No. 250 of 1988 3 5. Whether the defendants are entitled to special costs, if so to what extent? OPD. 6. Relief.” I have heard learned counsel for the parties and have gone through the evidence on the file. Learned counsel for the appellants argued that the appellants are in possession of the property in dispute for the last about 12 years and their possession is open, continuous, uninterrupted and hostile to the knowledge of true owners. Earlier father of the appellants, namely, Nand Singh was in possession of the property in dispute. Appellants have become owners by way of adverse possession. Learned counsel for the respondents argued that appellants have not become the owners of the property in dispute by way of adverse possession. Evidence on the file was rightly scrutinized by the trial Court as well as First Appellate Court. Ex.P3 is the copy of pedigree table showing this fact that the appellants are sons of Nand Singh. Ex.P1 is the copy of jamabandi for the year 1980-81 showing this fact that Joginder Singh adopted son of Kishan Singh and others are the owners of property in dispute. As per Column No.5 of the jamabandi, appellants are in possession but not as gair marusi (tenant). Ex.P2 is the copy of jamabandi for the year 1959-60. As per this jamabandi, Kishan Singh is the owner of the property in dispute as per Column No.4 and as per Column No.5 of the jamabandi, Nand Singh, father of the appellants, was shown to be in possession as tenant. Ex.P10 is the copy of jamabandi for the year 1964-65. As per RSA No. 250 of 1988 4 this jamabandi, Joginder Singh is the owner of the property in dispute, whereas Nand Singh, father of the appellants, is in possession of the property in dispute. Ex.P11 is the copy of jamabandi for the year 1970-71. As per this jamabandi, Joginder Singh was shown to be as mortgagor whereas Chanan Singh, Piara Singh and Tota Singh sons of Gurdit Singh and Harnam Kaur wife of Bhola Singh were shown to be in possession as mortgagees. Ex.P12 is the copy of jamabandi for the year 1975-76. As per this jamabandi, appellants were shown to be in possession of the property in dispute and same is the position as per Ex.P13 jamabandi for the year 1980- 81. Allegation of the appellants is that they are in possession of the property in dispute for the last more than 12 years and their possession is open, continuous, uninterrupted and hostile to the knowledge of true owners but as per revenue record, i.e., copies of khasra girdawaries (Ex.P6) from Kharif 1971 to Kharif 1976, appellants were not in possession of the property in dispute. Appellants failed to plead from which particular date, they are in possession of the land in dispute. When from Kharif 1971 to Kharif 1976 the appellants are not in possession of the land in dispute, then they cannot argue that their possession is open, continuous, uninterrupted and hostile to the knowledge of true owners. Presumption of truth has been attached to the entries of jamabandis, although presumption is rebuttable but entries of revenue record were not challenged by the appellants. If entries of revenue record are not correct one, then the same could be challenged before revenue authorities, but till today, no action by the appellants to RSA No. 250 of 1988 5 challenge the entries of revenue record. Earlier, Nand Singh, father of the appellants, filed civil suit on the allegation that he is in possession of the property in dispute measuring 28 kanals bearing Rect.No. 58, Killa No. 1(8-0), 2 (8-0), 9 (6-0) and 10 (6- 0) situated in the revenue estate of Village Kaleke and on 1.10.1964, defendants No.1 to 7 in that case forcibly dispossessed him from the land in question and possession of the property in dispute was sought on the ground that he was unlawfully dispossessed by the defendants. This fact is clear from the copy of judgment (Ex.D6). That means, Nand Singh claimed to be in possession of Rect.No. 58, Killa No. 1(8-0), 2 (8-0), 9 (6-0) and 10 (6-0) as a tenant. So, in view of the entries in khasra girdawaries from kharif 1971 to kharif 1976 (Ex.P-6), appellants are not in possession of the property in dispute. In view of conjunctive findings of the Courts below, I am of the opinion that no substantial question of law is involved. There is no infirmity or illegality in the impugned judgment and the same is upheld. Appeal without merit is dismissed. 18.10.2011 ( JORA SINGH ) pk JUDGE