Regular Second Appeal No. 4092 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4092 of 2009 Date of decision : March 18, 2011 Roop Chand ....Appellant versus Avtar Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. NS Sodhi, Advocate, for the appellant Mr. MK Garg, Advocate, for respondent nos. 3 to 5 Respondent no. 2 ex parte. Service of respondent no. 1 dispensed with as not represented in the courts below. L.N. Mittal, J. (Oral) Plaintiff Roop Chand has filed the instant second appeal. Plaintiff-appellant filed suit for possession of the suit land measuring 3 kanals 3 marlas comprised of killa no. 178//15/2(3-3) and also for possession of 1/6th share in 1 kanal 16 marlas land of killa no. 178//26(1- 16) alleging that he is owner thereof and the defendants are in illegal possession thereof without plaintiff's consent. Defendant/respondent no. 1 was proceeded ex parte. Regular Second Appeal No. 4092 of 2009 -2- Defendants no. 2 to 5 contested the suit and broadly denied the plaint allegations. It was pleaded that plaintiff's father Lekh Raj alias Lakhu had sold the suit land to Inder Singh grandfather of contesting defendants no. 2 to 5 vide sale deed dated 18.10.1954 and defendants are in possession of the suit property as its owners. Inder Singh was father of defendant no. 1. In the alternative, defendants claimed to have become owners of the suit property by adverse possession. The suit was also alleged to be barred by limitation. Various other pleas were also raised. Learned Civil Judge (Junior Division), Moga vide judgment and decree dated 7.8.2007 dismissed the plaintiff's suit. It was held that land of killa no. 15/2 was in possession of the defendants as tenants and the civil court has no jurisdiction to grant relief of possession of the said land. As regards 1/6th share of land of killa no. 26, it was held that plaintiff as co- sharer therein cannot seek possession through the civil court but has to seek partition of the said joint land. Plea of defendants that they had become owners of the suit land by adverse possession was negatived. Plaintiff and defendants no. 2 to 5 preferred first appeals against judgment and decree of the trial court. Learned Additional District Judge, Moga vide common judgment and decrees dated 8.4.2009 dismissed plaintiff's appeal and partly allowed the appeal preferred by defendants no. 2 to 5 holding them to have become owners of the land of killa no. 15/2 by adverse possession but negatived their claim regarding land of killa no. 26 affirming the finding of the trial court regarding killa no. 26. Feeling aggrieved, the plaintiff has filed the instant second appeal along with RSA No. 4102 of 2009 titled Regular Second Appeal No. 4092 of 2009 -3- Roop Chand versus Raju etc. Two second appeals have been preferred because there were two first appeals. Both these second appeals shall stand disposed of by this common order. I have heard learned counsel for the parties and perused the case file. As regards land of killa no. 26, it is manifest from the revenue record that both the parties are co-sharers therein along with some other persons. However, the said land is in possession of the defendants. Consequently, the plaintiff is entitled to symbolic joint possession of the said land being co-sharer with right to get actual possession of his share by seeking partition. Finding of the courts below to the contrary regarding the said land holding that the plaintiff as co-sharer cannot seek possession of the suit land without seeking partition is perverse and illegal to the aforesaid extent because the plaintiff as co-sharer can seek joint symbolic possession of the said land subject to his right to get actual possession of his share by seeking partition. Judgments and decrees of the courts below, therefore, raise substantial question of law to this extent which is answered accordingly and the plaintiff-appellant is entitled to succeed to this extent. As regards land measuring 3 kanals 3 marlas of killa no. 15/2, the same is not proved to have been purchased by Inder Singh predecessor of the defendants by way of sale deed dated 18.10.1954 Ex. D1. However, defendants' claim of adverse possession over the said land has been rightly upheld by the lower appellate court because in the revenue record right from 1956-57, defendants and their predecessors have been recorded in Regular Second Appeal No. 4092 of 2009 -4- possession of the said land on account of deemed sale. The suit was filed in the year 2004. Thus, for almost 50 years before the filing of the suit, defendants and their predecessors have been in adverse possession of the said land. Even counsel for the appellant also emphatically contended that defendants have no right in the said land. It is correct that defendants' predecessor had not purchased the said land. However, the defendants are continuing in possession of the said land for almost 50 years before the filing of the suit without any right and it depicts that they have been in adverse possession of the said land for the aforesaid period. Consequently, claim of the defendants regarding the said land has been rightly upheld by the lower appellate court. Approach of the trial court regarding the said land holding the defendants to be tenants thereon was patently perverse and illegal and erroneous because it was not the case of either party that the defendants are tenants thereon. Even revenue record does not depict that the defendants were possessing the said land as tenants. The trial court misread and misinterpreted the entry of 'gair-marusi' in the revenue record depicting the capacity or status of the defendants as occupants thereof. The trial court held said description of gair-marusi as tenancy at will. However, entry of gair-marusi is made irrespective of fact as to whether occupier is tenant or not. The status of occupant can be determined on combined reading of all the entries in the jamabandi particularly the entry made in column of rent. In the instant case, entries in jamabandies in the column of rent depict the possession of defendants and their predecessors over this land on account of deemed sale. Consequently, question of Regular Second Appeal No. 4092 of 2009 -5- tenancy of defendants or their predecessors over the said land does not arise from the entries in the revenue record. On the contrary, the said entries proved the defendants' case that they and their predecessors have been in adverse possession of the said land. Learned counsel for the appellant relied upon judgment of Hon'ble Supreme Court in Hemaji Waghaji Jat versus Bhikhabhai Khengarbhai Harijan & others, 2008(4) RCR (Civil) 401. However, this judgment has no applicability to the facts of the instant case. For the reasons aforesaid, both the instant second appeals are allowed partly. Judgments and decrees of the courts below are modified. Suit filed by the plaintiff-appellant is decreed partly for joint symbolic possession of 1/6th share in 1 kanal 16 marlas land of killa no. 178//26(1- 16). Plaintiff-appellant shall be entitled to seek actual possession of his share in the said land by seeking partition thereof from the competent court. Suit filed by plaintiff-appellant regarding the remaining suit land measuring 3 kanals 3 marlas comprised of killa no. 178//15/2 remains dismissed as ordered by the lower appellate court affirming and upholding judgment and decree of the lower appellate court regarding the same. ( L.N. Mittal ) March 18, 2011 Judge 'dalbir'