IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1799 of 2009 Date of Decision : January 12, 2010 Kharaiti Ram and others ....Appellants Versus Shakuntla Devi .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sumeet Mahajan, Senior Advocate with Mr. Sham Lal Bhalla, Advocate for the appellants. Ms. Divya Sharma, Advocate for the respondent-Caveator. T.P.S. MANN, J. Suit filed by the respondent for possession and mandatory injunction was decreed by Civil Judge (Junior Division), Ludhiana, on 18.8.2006. Aggrieved of the same, the defendants-appellants filed the first appeal, which was dismissed by Additional District Judge, Ludhiana, on 19.3.2009. As such, the present second appeal by them under Section 100 of the Code of Civil Procedure. According to the plaintiff-respondent, she was owner of property measuring 60 sq. yards, comprised in khata No. 576/607, Khasra No.16//23/2 shown in red colour in the site plan, by virtue of sale deed dated 16.9.1991. She applied for demarcation of the suit property. Pursuant thereto, demarcation was conducted by Pritpal Singh, Naib Tehsildar (Retd.) with the help of concerned revenue R.S.A. No. 1799 of 2009 -2- officials and it was found that the defendants, who were sons and daughters of Smt. Shanti Devi were in illegal occupation of the property measuring 24 ft. x 30 ft., i.e., 80 sq. yards, which included the suit property measuring 60 sq. yards and raised unauthorized construction over the same. The plaintiff had requested the defendants many a time to vacate and hand over the vacant possession of the suit property after removing malba/unauthorized construction but they refused to do so. Hence, the suit by her. While contesting the suit, the defendants pleaded that the plaintiff had no right, title or interest in the suit property and, as such, had no locus standi to file the suit. The suit was barred by limitation and also not properly valued for the purposes of Court fee and jurisdiction. The property owned and possessed by the defendants comprised in Khasra No.17//3, khata No. 598/626 and not in Khasra No.16//23/2. The sale deed dated 16.9.1991 set up by the plaintiff was a forged and fabricated document. The property comprised in Khasra No.17//3 was purchased by their mother Smt. Shanti Devi vide sale deed dated 14.7.1975 and after her death, it were the defendants, who were exclusive owners and in possession of the same. The possession of the defendants over the suit property was continuous, hostile, long and without any interruption, which was adverse to all, including the plaintiff, for the last more than 20 years. Their adverse possession had matured into complete title and the plaintiff or her predecessors-in- R.S.A. No. 1799 of 2009 -3- interest was left with no right, title or interest over the property in dispute. After purchasing the property, the defendants raised huge construction over the same by spending an amount of Rs.2,00,000/-. Remaining averments made by the plaintiff were refuted by the defendants, who then prayed for dismissal of the suit. After hearing learned counsel for the parties and going through the file, the learned trial Court held that it was the plaintiff, who was owner of the suit property and defendants had encroached upon some portion thereof to the extent of 24 ft. x 30 ft. by raising construction over the same. Accordingly, the plaintiff was entitled to its possession. The suit was found to be within time as it was filed on 7.12.1998 whereas cause of action had arisen on 1.12.1998 when the defendants refused to vacate the property in dispute. Moreover, when the plaintiff had approached the Court on the basis of her title, there was no limitation to institute the suit against the illegal encroachers. Accordingly, the suit was decreed with costs for possession of the suit property and the defendants were directed to remove the malba/unauthorized construction raised by them over the suit property and to hand over its vacant possession to the plaintiff within a period of two months. As mentioned above, Additional District Judge, Ludhiana, endorsed the findings recorded by the trial Court and dismissed the appeal filed by the defendants. Records of the case were requisitioned. As per reports R.S.A. No. 1799 of 2009 -4- Ex.PW-3/A dated 7.6.2001 and Ex.P5 dated 22.8.2003, the defendants were found to have encroached upon the suit land measuring 60 yards situated in Khasra No. 16//23/2, which was owned by the plaintiff. The testimonies of PW5 Ashok Kumar, Patwari and PW6 Pawan Kumar, Field Kanugo, who had conducted the demarcation, were not challenged by the defendants that the demarcations, were not conducted as per High Court Rules and Orders and also the directions issued by the Financial Commissioner. Moreover, both of them clearly stated in their testimonies that the demarcation was carried out after fixing pucca points. As a natural corollary thereto, it stands established that the suit land belonging to the plaintiff stood encroached by the defendants, whose land adjoins the same. Vide sale deed Ex.P1 executed on 16.9.1991, Jagjit Rai son of Shri Hakikat Rai sold the suit property in favour of the plaintiff. In view of the fact that the same had been encroached upon by the defendants, the plaintiff was entitled for possession of the suit property. The main question, which arises in the appeal is as to whether the suit was within limitation or not. In her examination-in- chief while appearing as PW4, the plaintiff stated that she had purchased the suit property from Jagjit Rai on 17.9.1991. She then applied for demarcation of the suit property. Vide report Ex.PW3/A made by Halqa Kanungo on 7.6.2001 it was found that plot measuring 24 ft x 30 ft was situated in Khasra No.16//23/2 upon which Shanti Devi's dilapidated R.S.A. No. 1799 of 2009 -5- house was in existence. Lateron, the plaintiff submitted another application Ex.P-3 on 18.8.2003 upon which the Tehsildar, vide order Ex.P4 passed on the same day asked Halqa Kanungo to visit the spot and give a report in detail. Pursuant thereto, the Halqa Kanungo prepared report dated 22.8.2003 (Ex.P5) mentioning therein that the inheritance of the estate belonging to Smt. Shanti Devi stood transferred in the name of her sons Raj Kumar etc. and the same was in respect of plot measuring 100 sq. yards and situated in killa No. 17//3. Smt. Shanti Devi etc. had constructed the house in killa No. 16//23/2 instead of Killa No. 17//3 and, therefore, the construction was illegal. While filing the suit, the plaintiff stated in para 5 of the plaint that she had finally requested the defendants on 1.12.1998 for vacating the suit property and to remove the malba of the illegal construction but they flatly refused to do the same. The suit was, thereafter, filed on 7.12.1998. As such the suit was filed within time. In Rustom V Ramzan and others (2002-1) PLR 482, it was held that a suit for possession based on title can be filed at any time. However, under Article 65 of the Limitation Act, the defendant can non- suit the plaintiff only by proving that he was in adverse possession over the suit property for a period of atleast 12 years and by remaining in adverse possession, he had acquired title by extinguishing that of the plaintiff. The plaintiff came on the suit property only on 16.9.1991 when she purchased the same. It was her case that when she went to R.S.A. No. 1799 of 2009 -6- Bombay, in her absence, Smt. Shanti Devi, mother of Kharaiti Ram- defendant constructed the house over the suit property. Therefore, even if it is taken that the defendants came on the suit property soon after its purchase by the plaintiff and the suit having been filed in the year 1998, the possession of the defendants did not mature into an adverse possession so as to non-suit the plaintiff. Under these circumstances, the judgment of the Hon'ble Supreme Court rendered in Tej Narain and another V Shanti Swaroop Bohre and another (2004) 11 Supreme Court Cases 193, relied upon by learned counsel for the defendants- appellants, is not applicable to the facts and circumstances of the case as in that case a period of more than 12 years had elapsed since the possession of the defendants over the suit property and, thus, the title to the suit property was perfected by adverse possession whereas in the present case the period of 12 years had not elapsed when the suit was filed by the plaintiff-respondent. In view of the above, no case is made out for interference in the impugned judgments passed by the learned Courts below whereby the suit filed by the plaintiff-respondent was decreed. None of the substantial questions of law, as framed by the appellants, arises for determination. The appeal, being bereft of any merit, is, therefore, dismissed. ( T.P.S. MANN ) January 12, 2010 JUDGE ajay-1