R.S.A.No. of 4589 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. of 4589 of 2009 (O&M) Date of decision: 9.12.2009 Megh Singh and others ......Appellants Versus Rustam and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Vikram Punia, Advocate, for the appellants. **** SABINA, J. Plaintiffs-appellants filed a suit for declaration and permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Sonepat vide judgment and decree dated 12.6.2009 . In appeal, the said judgment and decree were upheld by the Additional District Judge, Sonepat vide judgment and decree dated 18.9.2009. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The facts giving rise to the case as stated by the plaintiffs are that the plaintiffs are in possession and R.S.A.No. of 4589 of 2009 (O&M) 2 have become the owners by way of adverse possession of the suit land detailed in para No.1 of the plaint, total measuring 7K-16M. It is stated that earlier, this was killa No.9/22, but later this killa No. was bifurcated into killa Nos. 9/22/1, 9/22/2 and 9/22/3. It is further stated that the suit land is recorded to be owned by the defendants, but the possession over the suit land is of the plaintiff since the time of their forefathers. The plaintiffs are cultivating the suit land. 3. It is submitted that plaintiff Megh Singh, Abhey Ram along with Amar Singh and Jai Singh i.e. father of the plaintiffs No.3 to 7, filed a case before the A.C.II Grade, Sonepat vide case No.68 dated 20.6.1974 for correction of Girdawari against the father of the defendants namely Sarju. The case was decided by the A.C.IInd Grade, Sonepat on 16.4.1975, by which he admitted the cultivating possession of the plaintiffs over Killa No.9/22. It is averred that the father of defendants namely Sarju then filed a civil suit on 1.6.1978, which was for declaration or in the alternative for possession of the suit land by pleading that the entries in the khasra Girdawari were wrongly made in respect of the suit land, showing the possession of the defendants i.e. the present plaintiffs. In that suit, the learned Senior Sub Judge, held that Sarju is the owner of the suit land, R.S.A.No. of 4589 of 2009 (O&M) 3 while the possession is that of the defendant i.e. the present plaintiffs. It is stated that this order was not challenged by the defendants and the plaintiffs continued to cultivate the suit land by way of adverse possession, which was open, continuous and hostile to the knowledge of the defendants and also for more than 12 years and therefore, has ripened into full ownership. 4. Notice of the suit was given to the defendants, who appeared and contested the suit by filing their written statement. The defendants took preliminary objections that the present suit is not maintainable as the plaintiffs are 'tenants at will' and they cannot become owners by adverse possession. On merits, it is stated that the entries made in the revenue records are correct and in the column of possession, it has been mentioned that the plaintiffs are Gair Marusi i.e. tenants at will. It was also submitted that the possession of the plaintiffs is permissive and therefore, they cannot became the owners of the suit property. It is further stated that the defendants have never surrendered the possession to the father of the defendants or the defendants. With this, a prayer was made to dismiss the suit with costs. The plaintiffs filed R.S.A.No. of 4589 of 2009 (O&M) 4 replication, in which the contents of the plaint were rejected.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs have become owners of the suit property by adverse possession? OPP 2. Whether the plaintiffs are entitled for a decree of declaration with consequential relief of permanent injunction as prayed for ? OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the plaintiff has not come to the Court with clean hands and suppressed the true and material facts from the Court? OPD 5. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 6. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs had filed a suit for declaration that they were owners in possession of the suit land on the basis of adverse possession. This court in the case of Bhan Singh and others vs. Tej Singh and others 1996(3) PLR 153 has held as under:- R.S.A.No. of 4589 of 2009 (O&M) 5 “The onus to prove issue No. 1 was upon the plaintiff. No doubt, if the plaintiff failed to prove his ownership over the Bara in question still he was entitled to get a decree for injunction on the basis of the established possession. The evidence, which has been led by the plaintiff was so unsatisfactory that it has to be concluded that by mere user in the shape of the throwing rubbish does not establish the possession of the plaintiff, who has come to the Court to claim the injunction. Mere acts of user, such as throwing rubbish, placing dung cakes, tethering cattle, installation of pegs may be weak links to say that a particular litigant is using the property but such user has to be secluded separately from the acts of possession, for which overt act is necessary for such litigant to establish that he had been exercising his possession with the intention to retain it by excluding others over the Bara in question. The plaintiff in this case has miserably failed to establish his ownership by leading any documentary or oral satisfactory evidence. Even otherwise the oral evidence regarding possession is too weak, which may be relied upon in order to establish the possession. P.W. 5 Bishna, when appeared in the witness-box, categorically stated that the property in question was situated in the Abadi and that it is a part of the Shamilat R.S.A.No. of 4589 of 2009 (O&M) 6 Deh. Also it is admitted by Dassa Lambardar (P.W.2) that the Bara is lying vacant. The case set up by the plaintiff in the trial Court was that he had been putting rubbish/refuse of the house in the Bara and, therefore, it should be inferred that the Bara in question was in his established possession. In my opinion, while dealing with the type of property such as Bara in dispute, the act of putting rubbish or refuse of the house is not enough.” Thus, the suit filed by the plaintiffs was not maintainable as a suit on the basis of adverse possession cannot be filed, whereas, plea of adverse possession can be taken as defence. Even otherwise, the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the plaintiffs have failed to prove that they have become owners in possession of the suit land on the basis of adverse possession. The said finding of fact, arrived at by the Courts below, cannot be interfered with by this Court in appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 09, 2009 anita