RSA No.2023 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. RSA No.2023 of 2008 Date of decision:13.1.2010 Angrej Singh and others ...Appellants Versus Jhandu alias Jhandi alias Miadi and others. ...Respondents. CORAM: Hon'ble Mr.Justice Rakesh Kumar Garg. -- Present: Mr.N.S.Dandiwal, Advocate, for the appellants. -- Rakesh Kumar Garg,J. This is defendants' Regular Second Appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff- respondents for separate possession of 3/5th share of Gair Mumkin Abadi land measuring 0 kanal 11 marlas comprising in Khasra No.197//132/1 (0-11) situated at village Bagha, Tehsil Talwandi Sabo, District Bathinda, by way of partition of the land in dispute, has been decreed by passing a preliminary decree. Briefly stated, the facts of the case are that the plaintiff- respondents filed the present suit for partition of the suit land on the ground that they were co-sharers and were in joint possession. It was further submitted that they had 3/5th share in the suit land and the property being joint, they were unable to make full use of their land. The defendant- appellants refused to partition the suit land, hence this suit. Upon notice, defendant-appellants appeared and contested the suit raising various preliminary objections including that the defendant- appellants have become owners of the suit land measuring 11 marlas by RSA No.2023 of 2008 2 way of adverse possession. On merits, it was further stated that the plaintiff-respondents were neither the owners nor in possession of any portion of the suit land, and the revenue record was liable to be corrected as the defendants had become owners by way of adverse possession. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court:- 1.Whether the plaintiffs are owners of the property in dispute, if so to what extent ?OPP 2. Whether the plaintiffs are entitled for separate possession of their share in the disputed property ? OPP 3. Whether the defendant has become the owner of the disputed land by way of adverse possession ? OPD 4. Whether suit is not maintainable ? OPD 5. Relief. After conclusion of the evidence of the parties and hearing arguments, the trial Court decreed the suit of the plaintiff-respondents with costs by the impugned judgment and decree dated 10.3.2007. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the appellant-defendants preferred an appeal which was dismissed by the Additional District Judge (Fast Track Court), Bathinda vide judgment and decree dated 24.4.2008. While dismissing the appeal, the lower Appellate Court observed as under:- “ After hearing rival contentions of both the parties and perusing the file carefully, it is clear that the bahi writing on the basis of which the counsel for appellant has now placed reliance, has not been proved on record. It is admitted case of the appellant that the counsel for the appellant has not pursued the case in the learned lower court properly. It is also conceded RSA No.2023 of 2008 3 that in the pleadings i.e., at the time of filing of the written statement, no mention has been made regarding the bahi entry which is now sought to be produced by way of additional evidence and the said application for additional evidence has been dismissed as there is no base qua the same in the pleadings. So from this arguments of the learned counsel for appellant, it is implied that the learned lower court has not otherwise erred while decreeing the suit of the plaintiff for joint possession because it has been argued that had the bahi entry been there on the record, the decision of the suit would have been different. Perusal of the judgment of the learned lower court nowhere reveals that the judgment has not been passed as per the given facts and circumstances of the case. While returning the finding it has clearly been discussed by the learned lower court that it is not at all disputed that appellant Bota Singh has purchased 2/5 share of 0 kanal 11 marlas i.e. 4 marlas from Sham Kaur, Chhoto Kaur widows of Sher Singh etc. But the factum as to appellant having become owner of the suit property by way of adverse possession is not at all sustainable. Perusal of the revenue record reveals that the suit land isjoint between the parties. So far as the entry regrding possession is concerned, in column No.5 it has clearly been mentioned that it of Makbuja Malkan. Obviously the co- ownership has been proved on record and the appellant has not been able to prove his adverse possession over the suit property. The learned lower Court has clearly observed that the appellant obliged to establish that their possession over the suit property was continuous, adverse, uninterrupted, open and hostile. It has also been rightly observed by the learned lower court merely on the score that the sale deed has been executed and that to the extent of 2/5th share and the appellant is alleged to be having put into possession of 11 marlas is not at all established. It is clear that while withholding the bahi entry the appellant before the learned lower court has tried to mislead the RSA No.2023 of 2008 4 court while trying to make out a case that at the time of sale deed to the extent of 2/5th share by the widow and son of Sher Singh, appellant was put into possession of the entire property that is why the plea of adverse possession has been taken and now the bahi entry has been sought to be placed relied upon and the case has been sought to be turned up side down. Perusal of the jamabandi shows that in column No.9 nothing has been mentioned. So it is not clear as to how the adverse possession is argued have been established. A party cannot be allowed to blow hot as well as cold at the same breath. Accordingly, after perusal of the judgment of the lower court is of the opinion that the learned lower court has not erred while returning the findings on the issues enumerated in the judgment and thereby decreeing the case of the respondents. So far as arguments, that the suit has been decided against dead person, is not correct. The defendant concededly expired during the pendency of the suit. As per law it is the duty of the L.Rs to come of their own to contest the suit. Otherwise the relationship of the counsel for the defendant would not cease merely because the defendant has expired. So there is no illegality while deciding this case in the said scenario.” Still not satisfied, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the appellants were not give an adequate opportunity to lead their evidence, as their counsel did not pursue the matter properly and, therefore, the appellants moved an application under Order XLI Rule 27 of the Code of Civil Procedure for additional evidence to bring on record the writing regarding the purchase of 2/5th share of the land measuring 11 marlas on 21.11.1968 from Sham Kaur and Chhoto widow of Sher Singh. The appellants have become owners of the suit land as per the aforesaid writing, RSA No.2023 of 2008 5 and this fact was not considered by the lower Appellate Court, and dismissed the application for additional evidence. It has been further argued on behalf of the appellants that a decree has been passed against a dead person, as Buta Singh defendant died on 29.9.2006, whereas the trial Court decree was passed on 10.3.2007, and as such, the same is nullity. On the basis of the aforesaid arguments, learned counsel for the appellants has argued that the following substantial questions of law arise in this appeal:- 1. Whether the decree can be passed against a dead person ? 2. Whether trial Court is bound to frame the issue regarding the act and conduct of the plaintiff/respondent while specific objection has been taken in the written statement ? 3. Whether the opportunity to bring on record the evidence was not given while dismissing the application u/O 41,Rule 27 CPC for additional evidence ? 4. Whether the judgments and decrees passed by both the courts below are based on non-appreciation of the evidence and amounts to mislead the evidence on the file ? I have heard the learned counsel for the appellants and perused the impugned and judgment and decrees of the Courts below. The contention of the appellants that the application of the appellants for additional evidence was rejected wrongly and the writing dated 21.11.1968 was ignored, is devoid of any merit. In fact, the said writing dated 21.11.1968 was not relied upon by the appellants in their pleadings, as there was no mention of the aforesaid writing in the written statement. Thus, the aforesaid writing, which has been placed on the record of this case as Annexures A1 and A2 vide C.M.No.6085-C of 2008, has no evidentiary value as the same cannot be looked into evidence being beyond pleadings. The only plea of adverse possession was taken which was not RSA No.2023 of 2008 6 accepted by the Courts below. Even before this Court, no plea has been raised against the aforesaid finding of the trial Court. Thus, the application for leading additional evidence was rightly rejected. So far as the argument that the suit has been decided against a dead person is not correct. Concededly, Buta Singh defendant (predecessor-in-interest of the appellants) expired during the pendency of the suit. It was the duty of the legal representatives of the deceased to come on record of their own and contest the suit. Otherwise also, the relationship of the counsel of the aforesaid defendant would not cease merely because the defendant Buta Singh had expired. It is not in dispute that the counsel for the aforesaid defendant continued to represent him and the impugned judgment and decree was passed in his presence. Even otherwise, the appellants have not shown that any prejudice was caused to them in this regard. For the foregoing reasons, I find no illegality in the impugned judgment and decrees on the basis of the aforesaid arguments. Thus, no substantial question of law arise in this appeal. No merit. Dismissed. (Rakesh Kumar Garg) Judge January 13, 2010 rk