RSA No.1604 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1604 of 2005 (O&M) Decided on : 12.01.2010 Lakshmi Chand & others ... Appellants versus Smt. Ganga Devi & others ... Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Amit Jain, Advocate for the appellants. Mr. Sandeep Punchhi, Advocate for respondents. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit filed by the appellant for declaration that he is 1/3rd owner of the house in dispute along with the family of his two brothers. The appellant has also challenged a decree suffered by his mother in favour of his brothers alleging that the house belonged to his father and not to the mother and thus, the mother could not suffer any decree in favour of the brothers. Both the Courts below returned a finding of fact that the appellant had not been able to establish that the house in dispute was ever owned by the father of the parties. To counter RSA No.1604 of 2005 -2- this finding of fact, learned counsel for the appellant has argued that in the earlier sale deed executed by the father, it was mentioned that the property to the south of the said house also belong to Kalu Ram- father. He asserts that the house in dispute is that property. Apart from that there is no document to prove title in favour of the mother - Nathi Devi also and thus, it is clear that the property must have devolved from the father to the mother or must have come from the father to the mother in some manner. Learned counsel for the respondent has however argued that the appellant has not been able to prove the fact that the house belonged to the father of the appellant and that, as plaintiff he had to stand on his own legs. It is further contended that a statement in another sale deed could not have the effect in establishing title. The following questions have been proposed: i) Whether the courts below could make out an altogether a new case not set up by either of the parties as has been done in the case in hand? ii)Whether the act of ignoring the document Ex.P-1 which remains an most important piece of evidence in the nature of admission, having substantial bearing on the decision of the case has the effect of rendering the judgments and decrees of the courts below to be cryptic, unsustainable and erroneous in all regards? RSA No.1604 of 2005 -3- iii)Whether a co-sharer against whom plea of adverse possession is not taken by other co-sharers is not presumed to be in joint possession or not? iv)Whether a co-sharer against whom plea of adverse possession is not taken by other co-sharer is under the law bound to claim possession within 12 years or not? v)Whether a judgment and decree in which plaintiff Sh. Fakir Chand was not a party could be sought to be set aside by him within a period of 3 years of passing thereof or within a period of 3 years when he gathered the knowledge thereof? Questions No.(iii), (iv) & (v) would be answered only in terms of answer to question No.(ii). As regards question No. (ii), it is a pure question of fact because Ex.P-1 is the earlier sale deed to which reference has been made above. In my opinion, this finding of fact, that the appellant has not been able to establish the title of his father cannot be said to be based on no evidence or on such mis-reading of evidence so as to render it perverse. Consequently, question No. (ii) has to be answered against the appellant. Once answer of question No.(ii) is against the appellant, question No.(iii), (iv) & (v) (which pre-suppose some title in the appellant) would be rendered unnecessary. As regards question No.(i), it cannot be said that any new case has been set up by the Courts below. Holding the proposed questions against the appellant, RSA No.1604 of 2005 -4- this appeal and application for stay are dismissed. January 12, 2010 (AJAY TEWARI) sonia JUDGE