R.S.A. No. 479 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 479 of 2011 (O&M) Date of decision : 28.1.2011 Surjit Kaur and others ......Appellants Versus Puran Chand .......Respondent ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Tribhawan Singla, Advocate, for the appellant. ***** SABINA, J. Plaintiff-Puran Chand filed a suit for possession of the property in dispute. The case of the plaintiff, in brief, was that Chanan Singh was owner of the property in dispute. Chanan Singh sold the shop to Nikka Ram vide sale deed dated 30.9.1969. Nikka Ram executed a will in favour of the plaintiff regarding the shop in question on 2.5.1975. Nikka Ram died in the year 1975 and thereafter plaintiff became owner of the shop in question. Plaintiff had installed machines in the shop which were run by 25 BHP electric motor. Defendants No.2 to 4 were the cousins of the plaintiff and had been working with the plaintiff. Defendants No.2 to 4 were paid qua the services rendered by them. Thereafter, plaintiff started his business in a R.S.A. No. 479 of 2011 (O&M) 2 rented shop on Chandigarh Road and allowed the defendants to run the flour mill. Defendants had promised that they would vacate the premises as and when they were settled. However, the defendants had failed to vacate the premises in question. Hence, suit for possession was filed by the plaintiff. Defendants, on the other hand, denied the contentions in the plaint. It was averred that the defendants had got the property in dispute in a family settlement which had taken place on 1.8.1983 and the same was reduced into writing vide memorandum of partition dated 24.11.1984. Even otherwise, the defendants had become owner of the property in dispute by way of adverse possession as they were in possession of the suit property since the year 1975. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to possession of shop shown as red along with the flour mill, mentioned in the head note of the plaint ? OPP. 2. Whether the plaintiff is entitled to recovery of mesne profit @ Rs.2000/- w.e.f. May 1993 till delivery of possession ? OPP. 3. Whether the suit is barred by limitation ? OPD. 4. Whether the suit is not property valued for the purpose of court fee and jurisdiction ? OPD. 5. Whether the suit is bad for non joinder and necessary parties ? OPD. 6. Whether the plaintiff is estopped by his act and conduct from filing the suit ? OPD. 7. Whether the site plan of the property in dispute R.S.A. No. 479 of 2011 (O&M) 3 attached with the plaint is incorrect ? OPD. 8. Whether the plaintiff has no cause of action to file the present suit ? OPD 9. Whether the suit of the plaintiff is bared u/o 2 Rule 2 CPC ? OPD. 10. Whether the decision of civil suit No.74 dated 3.3.2003 has any effect upon the instant suit, if so, its effect ? OPP. 11. Relief.” Vide judgment and decree dated 15.3.2000, Civil Judge (Junior Division) Samrala decreed the suit of the plaintiff. Aggrieved by the said judgment and decree defendants preferred an appeal and the same was dismissed by Additional District Judge, Ludhiana vide judgment and decree dated 15.6.2010. Hence, the present appeal by the defendants. After hearing the learned counsel for the appellants, I am of the opinion that the instant petition deserves dismissal. Shop in question was owned by Nikka Ram. Nikka Ram had executed a Will dated 2.5.1975 in favour of the plaintiff qua the shop in dispute. Admittedly, Nikka Ram died in the year 1975 and, thus, the plaintiff became owner of the premises in dispute on the basis of the Will executed in his favour. Since the plaintiff had become owner of the premises in dispute on the basis of the Will, there was no occasion for the said property to have been given to the defendants in a family settlement. Moreover, the partition deed relied upon by the defendants had not been registered and hence the same was not liable to be read in evidence. Furthermore, plaintiff was not a party to the said deed. The defendants also R.S.A. No. 479 of 2011 (O&M) 4 took up the plea of adverse possession and the same was rightly discarded by the Courts below as the defendants had failed to establish that their possession was open, peaceful and hostile. Defendants were rather in permissive possession as the plaintiff had allowed the defendants to continue in possession of the premises in dispute. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 27, 2011 Anand