RSA No.2884 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2884 of 2009 (O&M) Date of decision: 16.8.2010 Aroor Singh and another ......Appellant(s) Versus Surjit Singh and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashish Gupta, Advocate for the appellants. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession of the suit land by way of partition with consequential relief of permanent injunction, was decreed. The plaintiff-respondent filed the present suit for partition of suit land alleging that he was owner in joint possession of half share along with defendant No.1, who is the real brother of the plaintiff, and was recorded owner of the remaining half share of the suit land as per the revenue record. The plaintiff-respondent was residing in Uttar Pardesh for the last many years and had come back to the village a few months back when he discovered that defendants No.2 and 3 were in possession of the part of the suit land. On enquiry, it revealed that defendant No.1 had entered into some arrangement with defendants No.2 and 3 but since the plaintiff was not a party to such an arrangement, the same was not binding on his rights. The defendants refused to admit the claim of the plaintiff- respondent and therefore, necessity arose to file the present suit. In the written statement filed on behalf of the defendants, it RSA No.2884 of 2009 (O&M) 2 was contended that neither the plaintiff-respondent nor defendant No.1- respondent No.1 were owners in possession of the suit land, and in fact respondents No.1 and 2 had sold the suit land to one Pritam Singh son of Mansa Singh and delivered possession of the suit land to him as a purchaser on the basis of an agreement to sell executed in his favour on 18.5.1973 and thereby plaintiff and defendant No.1 ceased to have any right, title and interest in the suit property after purchase of the same by Pritam Singh who had constructed four walls on the suit land and in this way, Pritam Singh was in possession of the suit property as owner w.e.f. 18.5.1973. Further, on 3.8.1983, Pritam Singh sold the suit land to appellant No.1 and executed an agreement to sell in his favour and also put him in possession after receiving the sale consideration. Thereafter, appellant No.1 constructed cattle sheds, verandahs etc. on the suit land in the year 1983 itself and was in possession of the suit land as owner and in case, if his ownership is not accepted on the basis of the aforesaid agreements dated 18.5.1973 and 3.8.1983, the defendant-appellant has become owner of the suit land by way of adverse possession. Defendants No.2 and 3 also filed counter claim seeking declaration and also permanent injunction restraining the plaintiff from interfering in their possession. With these submissions, dismissal of the suit of the plaintiff- respondent was prayed for. Both the parties led their respective evidence. The Courts below on appreciation of evidence on record held that the appellants cannot be conferred ownership rights on the basis of aforesaid documents dated 18.5.1973 and 3.8.1983 i.e. agreements to sell in question. The plea of the appellants of having become owners by way of adverse possession was also rejected and thus, the suit of the plaintiff- respondent was decreed by both the Courts below. RSA No.2884 of 2009 (O&M) 3 Not satisfied with the aforesaid judgment and decrees of the Courts below, defendants No.2 and 3 have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the judgments and decree dated 4.3.2009 passed by Additional District Judge, Jind and dated 14.12.2007 passed by learned Addl. Civil Judge (Sr. Division), Safidon are illegal, void, without jurisdiction and are therefore, liable to be set aside or not? (ii) Whether the findings of the Ld. Courts below are suffering from any apparent perversity on the face of it and being contrary to the law and facts on record? (iii) Whether the impugned judgment and decree passed by Ld. Courts below do not suffer an apparent illegality and perversity because of ignoring the material piece of evidence has been direct impact of decision of the case? (iv) Whether a full payment agreement being proved under evidence act, can be discarded only in lapse of registration of instruments? In support of his appeal, learned counsel for the appellants has vehemently argued that even if the agreements to sell in question are not admissible in evidence to prove the title, nevertheless the aforesaid document can be relied upon to hold the plea of adverse possession in favour of the appellants and therefore, the impugned judgment and decrees of the Courts below are liable to be set aside. In support of his argument, learned counsel for the appellants has relied upon a judgment of RSA No.2884 of 2009 (O&M) 4 this Court reported as Kulwant Singh v. Phula Singh 2004(2) RCR (Civil) 28. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. It is well settled that agreement to sell is not a document of title and the ownership rights cannot be said to have been transferred in favour of the appellants on the basis of the aforesaid document. However, the argument raised by the learned counsel for the appellants is that from the date of execution of the agreements to sell in question i.e. 18.5.1973 and 3.8.1983, the possession of the appellants and defendant No.1 stands proved on record and therefore, the alternative plea of the appellants on the basis of adverse possession should have been accepted by the Courts below. The argument raised by the learned counsel for the appellants is without any merit. From the pleadings of the appellants, it is crystal clear that the appellants have failed to plead and prove the necessary ingredients of the plea of adverse possession. It has not been averred by the appellants in their written statement/counter claim that their possession over the suit land is open, hostile, uninterrupted and to the knowledge of the plaintiff-respondent since a particular date. Neither there is any evidence placed on record to establish the aforesaid necessary ingredients of plea of adverse possession. Even learned counsel for the appellants was unable to challenge the findings of the Courts below wherein it has been noticed that the appellants have failed to prove that they were in possession of the suit property on the basis of agreements of sale as there was no evidence to establish that the land mentioned in the aforesaid agreements pertains to khasra numbers in question. The judgment of this Court in Kulwant Singh's case (supra) as relied upon by the learned counsel for the appellants is not applicable in the facts and RSA No.2884 of 2009 (O&M) 5 circumstances of the case. For the reasons mentioned above, no substantial question of law arises in this appeal. Dismissed. August 16, 2010 (RAKESH KUMAR GARG) ps JUDGE