R.S.A. No. 239 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 239 of 2008 (O&M) Date of Decision: 20.4.2009 Amar Singh ...Appellant. Versus Mahinder Singh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Bikram Chaudhary, Advocate for the appellant. AJAY KUMAR MITTAL, J. This regular second appeal filed by the plaintiff is directed against the judgment and decree dated 17.8.2007 passed by the first appellate court, whereby that of the trial court dated 24.7.2006 decreeing the suit of the plaintiff for permanent injunction was set aside and the suit was dismissed. The facts of the case necessary for the disposal of the present appeal are that the plaintiff had been in possession of the house, fully detailed in the head note of the plaint, situated at Jawahar Street, Ward No.15, Tohana, District Fatehabad (hereinafter referred to as the “suit property”) for the last 30 years and had, therefore, become owner of the same by way of adverse possession. He used the suit property for tethering the cattles besides others purposes and had constructed two varandahs, one Khurli and installed a Chara Machine and engine but the defendants had no concern whatsoever with the R.S.A. No. 239 of 2008 -2- same. It was pleaded that the defendants being forcible persons were adamant to dispossess the plaintiff from the suit property and in order to fulfil their evil design, the defendants came at the spot on 10.4.2004 and threatened him to dispossess from the suit property. When his request to desist from dispossessing the plaintiff-firm the suit property was not acceded to by the defendants, the plaintiff filed a suit for permanent injunction restraining the defendants from interfering in his peaceful possession over the suit property. The claim of the plaintiff was resisted by all the defendants, who filed two sets of written statements. Defendants No.1 to 4 in their joint written statement besides raising various preliminary objections pleaded that defendant No.5 was the owner in possession of the suit property in terms of the registered sale deed dated 16.4.1970 along with total area of plot measuring 201-4/9 square yards. He permitted his brother's widow to use 100 yards of the land and the remaining land measuring 100 yards was with him on which earlier the nephews of defendant No.5, i.e. defendants No.1 to 4 were tethering cattles and they vacated the same in February, 2002. It was further pleaded that defendant No.5 was interested to raise construction and he permitted the plaintiff to tether the cattle till the construction was started and defendants No.1 to 4 had no concern with the suit property after vacation. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. On 2.9.2004, they were proceeded against ex parte. Defendant No.5 filed his separate written statement taking the stand similar to that was taken by defendants No.1 to 4. R.S.A. No. 239 of 2008 -3- On appreciation of the oral as well as the documentary evidence led by the parties on the issues framed in this case, the trial court held that the plaintiff was in possession of the suit property for the last 20 years and, therefore, he had become owner in possession of the same by way of adverse possession. Accordingly, the suit filed by the plaintiff was decreed by the trial court vide judgment and decree dated 24.7.2006 and the defendants were restrained from interfering in the peaceful possession of the plaintiff over the suit property. Feeling dissatisfied, defendant No.5 took the matter in appeal and the lower appellate court vide judgment and decree dated 17.8.2007 while accepting the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit. Hence, the present appeal by the plaintiff. I have heard the learned counsel for the appellant and have perused the impugned judgment with his assistance. The point that needs determination in this appeal is – whether the plaintiff has become owner of the suit property by adverse possession. The Apex Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, 2008 (2) RCR 337, while endorsing its earlier decision in Karnataka Board of Wakf v. Govt. of India, 2004 (2) RCR (Civil) 702 laid down the following essential requirements before a person can claim ownership on the basis of adverse possession:- “(a) on what date he came into possession, (b) what was the nature of his possession, R.S.A. No. 239 of 2008 -4- (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.” The lower appellate court recorded that the plaintiff had not disclosed the date, month and year of entry into possession over the suit property and had also failed to disclose the capacity in which he entered into possession. It was also not established that the possession was open, hostile and adverse to the knowledge of the true owner. The lower appellate court, thus, negatived the plea of the plaintiff in respect of having acquired title by adverse possession on the ground that the plaintiff had failed to support such plea by leading any cogent documentary evidence and reversed the findings of the trial court. No illegality or perversity could be pointed out by the learned counsel for the appellant in the findings recorded by the lower appellate court warranting interference by this Court. Further, it has been recorded by the lower appellate court that defendant No.5 was the owner of the suit property on the basis of the sale deed dated 16.4.1970, Ex.D1, and once defendant No.5 was the true owner of the property in dispute, the plaintiff-appellant was not entitled to any injunction against the true owner. The Hon'ble Supreme Court while deprecating the law of adverse possession in Hemaji Waghaji Jat's case (supra) in para 34 has observed as under: “Before parting with this case, we deem it appropriate to observe that the law of adverse possession which R.S.A. No. 239 of 2008 -5- ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.” In view of the above, no question of law much less a substantial question of law arises in this appeal for determination of this Court. Finding no merit in this appeal, the same is hereby dismissed with no order as to costs. April 20, 2009 (AJAY KUMAR MITTAL) gbs JUDGE