R.S.A.No. 4356 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. Nos.12924-25-C of 2008and R.S.A.No. 4356 of 2008 Date of decision:10th November, 2009 Diwan Chand .......Appellant Versus Kamla Devi and others .......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Vijay Sharma, Advocate for the appellants. Rajive Bhalla, J. Civil Misc. No. 12924-C of 2008 Allowed as prayed for. Annexure P-1 is taken on record. Civil Misc. No. 12925-C of 2008 and R.S.A.No.4356 of 2008 The appellant challenges judgments and decrees dated 19.01.2005 and 7.05.2008, passed by the Civil Judge (Junior Division), Rajpura and the Additional District Judge (Adhoc), Patiala, decreeing the suit filed by the respondents and dismissing his appeal. The plaintiff/respondents filed a suit for possession of 15 marlas. The respondents pleaded that the suit land is part of land measuring 7 kanal 8 marlas bearing khasra nos. 653, 654, 656/2 and 657 is owned by them. The suit land was mortgaged with possession R.S.A.No. 4356 of 2008 -2- with one Shri Daulat Ram. The respondents filed a suit for redemption. A preliminary decree was passed on 3.01.1977 and a final decree was passed on 27.05.1983. The entire land apart from the suit land, was redeemed and possession was delivered to the respondents. The possession of the suit land could not be delivered, as the defendant/appellant was in possession as a mortgagee and therefore, symbolic possession was delivered. It was prayed that as the respondents are owners of the suit land, a decree for possession be passed. In response, the defendant/appellant denied the averments in the plaint and asserted that the suit land does not fall in khasra nos. 653, 654, 656/2 and 657 and even otherwise, it is not clear as to what khasra nos. the disputed land bears. The mortgage of the suit land to Daulat Ram was denied by asserting that the appellant was not a party to the redemption suit and therefore, not bound by any findings recorded therein. The positive case set up by the appellant was that he is in possession of the suit land since 1967 as it is owned by him. In the alternative the appellant pleaded that as he is in peaceful possession since 1967, he has perfected his title by adverse possession. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court held, on the basis of the revenue record, site plans Ex.P-2 and Ex.PW4/B a demarcation report prepared by Hari Singh Kanungo, Ex.PW4/A that the suit land belongs to the respondents. The appellant is in unauthorised possession as he has failed to establish his ownership or his plea of adverse possession. As a result, the suit for possession was decreed. R.S.A.No. 4356 of 2008 -3- Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 7.05.2008, the Additional District Judge (Adhoc), Patiala, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellant submits that the demarcation report Ex.PW4/A is the only evidence that identifies the land. The report, has been prepared in gross violation of the Punjab and Haryana High Court Rules and Orders that prescribe a detailed procedure for taking measurements of disputed sites. It is submitted that the High Court Rules and Orders incorporate the Financial Commissioner's Instructions which require the demarcation to be conducted in accordance with the procedure set out therein. The kanungo, however, disregarded these instructions, did not identify pucca points, failed to determine boundaries and measure the land as prescribed by these instructions. As a result, the courts below should have rejected the report Ex.PW4/B. It is further argued that the report apart, there is no evidence on record to establish that the respondents are owners or that this land forms a part of khasra nos. 653, 654, 656/2 and 657. It is further submitted that the courts below have committed an error in holding that as the appellant has raised a plea of adverse possession, he has in essence, admitted the ownership of the respondents. The plea of adverse possession was raised in the alternative and therefore, the courts below could not have drawn an inference of an admission of the respondents ownership. I have heard counsel for the appellant, perused the findings recorded by the courts below and considered the so called substantial questions of law framed by counsel for the appellant. The dispute in the present case relates to the ownership of R.S.A.No. 4356 of 2008 -4- the suit land. Both the trial court and the first appellate court are concurrent in their opinion that the respondents have proved their ownership of the suit land. For these conclusions, the courts below have relied upon the Jamabandies for the years 1981-1982 Ex.P-3, 1991-1992 Ex.P-6, to hold that the respondents are recorded as owners of the suit land. While holding that it falls within khasra nos. 653, 654, 656/2 and 657, the courts below have relied upon the site plans Ex.P-2, Ex.PW4/B and the demarcation report submitted by Hari Singh Kanungo Ex. PW4/A wherein, it is specifically recorded that the defendant/appellant has encroached upon 13½ marlas of land belonging to the respondents. The argument that the reports submitted by the Kanungo is null and void, as it has been prepared in violation of the Punjab and Haryana High Court Rules and Orders and the Financial Commissioners Instructions is not tenable. A perusal of the report discloses that the Kanungo set out the pucca points, measured the adjoining land as also the land in dispute and only thereafter, recorded his conclusion. Even otherwise, the question of encroachment and unauthorised occupation is a question of fact that has been answered against the appellant by both the courts. It would also be necessary to mention that the defendant/appellant raised a plea of adverse possession, in essence, admitting the ownership of the respondents. A plea of adverse possession inhers an admission of the true owner's ownership. The attempt by counsel for the appellant to assert that as the plea of adverse possession is an alternative plea it should have not been considered as an admission of ownership cannot be accepted. A plea whether in the affirmative or in the alternative binds a party and therefore, the courts below did not commit any error in holding that R.S.A.No. 4356 of 2008 -5- the appellant has admitted the ownership of the respondents. In view of what has been stated hereinabove, as no question of law, much less a substantial question of law arises for adjudication, the appeal is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 10th November, 2009 Shivani Kaushik