RSA No.3737 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.3737 of 2006 DATE OF DECISION: 24.12.2009 **** Desha . . . . Appellant VS. Man Singh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Satish Goyal, Advocate for the appellant Mr.Gaurav Jain, Advocate for the respondents. **** RAKESH KUMAR JAIN J. Unsuccessful but unfazed plaintiff is in second appeal. Tersely, the case set up by the plaintiff is that plot comprised in Khasra No.66/9/2 measuring 3 marlas situated in the revenue estate of village Mando Kheri, Tehsil and District Jind, was previously owned and possessed by the Gram Panchayat and was given to the plaintiff by the Gram Panchayat by a registered gift deed No. 4067 dated 10.2.1998 being landless/ non-proprietor and on the basis of the registered gift deed, mutation No. 150 dated 17.8.1998 has already been sanctioned in his favour by Assistant Collector IInd Grade, Jind and actual physical possession of the plot was delivered to him by the Gram Panchayat at the spot. However, due to shortage of money, he could not raise construction and while he was away with his family from the village to meet his relations, the defendants who are father and son, illegally and forcibly started putting cow dung cakes and stored wooden pieces etc. on the plot RSA No.3737 of 2006 -2- in dispute and have illegally occupied it and despite repeated requests did not remove their illegal possession, hence the plaintiff requested the Court for grant of decree for possession of the plot in question. In the written statement, it was admitted that the Gram Panchayat Mando Kheri gifted 100 square yard's plot to the plaintiff as per government scheme on which the defendants are coming in possession continuously as the possession of the suit land was not actually delivered to the plaintiff by the Gram Panchayat. The plaintiff filed the replication denying the averments made in the written statement and those of the plaint were reiterated. On the pleadings of the parties, following issues were framed on 05.9.2001:- 1. Whether the plot in dispute was given to the plaintiff by the Gram Panchayat as alleged in the pleading ? OPP 2. Whether the Gram Panchayat has executed a gift deed No.4067 dated 10.2.1998 in favour of the plaintiff ? OPP 3. Whether the plaintiff is entitled for possession of the plot in dispute as alleged in the plaint ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the defendants are owners in possession of the suit land ? OPD 6. Relief The plaintiff led oral as well as documentary evidence whereas the defendants led only oral evidence but no documentary evidence. In their evidence, the plaintiff examined Ram Kumar Field RSA No.3737 of 2006 -3- Kanungo as PW-1, Subhash Registry Clerk as PW-2, Diwan Singh as PW- 3 and himself as PW-4. In documentary evidence, he placed on file documents Ex. P-1 (photo copy of site plan), Ex.P-2 (photo copy of the demarcation report dated 17.1.2001), Ex.P-3 (photo copy of certificate regarding allotment of plots to landless persons), Ex. P-4 mutation No.150), Ex.P-5 (photo copy of application dated 5.3.2001 of Ramesh Kumar addressed to Deputy commissioner, Jind). Mark A (photo copy of the proceedings book of Gram Panchayat) whereas the defendants examined Karan Singh as DW-1, Man Singh as DW-2 and Raj Mehar Sarpanch as DW-3.. In rebuttal, no evidence was led by the plaintiff which was closed on 11.3.2005. Both the Courts below have concurrently recorded a finding of fact that the land in dispute has been allotted to the plaintiff much less gifted by the Gram Panchayat Mando Kheri and a mutation in respect thereof has already been sanctioned, but still the suit has been dismissed on the ground that the plaintiff has failed to prove the delivery of possession and dispossession thereafter at the hands of the defendants. Learned counsel for the appellant has, inter alia, submitted that both the learned Courts below have upheld the ownership of the appellant over the plot in question, which was vacant at the time of its allotment. It is also proved that the defendants have no title to the property and are trespassers. The learned Courts below have erred in dismissing the suit of the plaintiff/appellant on the ground that he has failed to prove delivery of possession and subsequent dispossession at the hands of the defendants. It is submitted that possession of the vacant plot goes with the ownership and by merely placing dung cakes or RSA No.3737 of 2006 -4- placing fuel wood would not prove a possessory title of the defendants in order to exclude the true owner from its use for his advantage. Thus, substantial questions of law raised in this appeal is “as to whether a decree for possession can be denied to a true owner against a trespasser in respect of a vacant plot on the ground that the true owner has not proved delivery of compensation and subsequent dispossession”. It is pertinent to mention that the appellant had filed a suit for possession of non-agricultural land/vacant plot comprising 3 marlas/100 square yards after removing dung cakes and wooden pieces collected by the defendants. It has been alleged in the plaint that while they were away, defendants had forcibly started preparing dung cakes and collecting wooden pieces etc. in the plot in dispute and illegally occupied it. The case set up by the defendants is that the property is owned and possessed by them for the last 40 years. Both the Courts below have held that the plaintiff/appellant is the owner of the property. It has also held that defendants are the trespassers. It is now well settled that possession is said to be “the nine points of the law” which means that the person in possession of the object has a better claim over it against the whole worth except the real owner. Possession is an evidence of ownership and the possessor is presumed to be the owner until one proves a better title to it then him. Possession is in fact what ownership is in right; possession is de facto exercise of a claim:” Ownership is the de jura recognition of one. Meaning thereby, a person, who is in possession has a better claim against whole world except a true owner? However, in the present case, it has been established before both the Courts below that appellant is the true owner of the property in question, which was claimed to be owned RSA No.3737 of 2006 -5- by the defendants but could not have been proved. Since, the property in question is admittedly an open plot, therefore, possession of the open and vacant plot goes with the ownership and it is presumed that at the time of allotment of the vacant plot by the Panchayat to the appellant, possession was delivered and the defendants denied delivery of possession to the appellant of the vacant plot, which is being used by the defendants during the absence of the plaintiff for the purpose of preparing dung cakes and collecting fuel woods etc. cannot be permitted to deny the right of possession to the appellant because the right of the ownership is superior and comprehensive which includes the right of possession as well. In view of the above discussion, I am inclined to hold that possession of the vacant plot goes with the ownership as a decree for possession in favour of a true owner against a trespasser cannot be denied on the ground that actual delivery of possession of a vacant plot is not proved. Thus, the substantial question of law raised by the appellant is answered in his favour and consequently, present appeal is allowed and judgment and decree of both the Courts below are set aside. However, in the facts and circumstances of the case, parties are directed to bear their own costs. (RAKESH KUMAR JAIN) 24.12.2009 JUDGE vivek