IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4589 of 2011 Date of decision: 22.11.2011 Chiranji Lal & Ors. ......Appellants. Versus Hans Raj & Ors. ......Respondents. CORAM: HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Gopal Sharma, Advocate for the appellants. Jora Singh, J. Chiranji Lal and three others filed this Regular Second Appeal to challenge the judgment dated 07.09.2011 passed by learned Additional District Judge, Nuh whereby the appeal filed by the appellants against the judgment and decree dated 08.10.2010 passed by learned Additional Civil Judge (Sr. Divn.), Nuh was dismissed. Respondents/plaintiffs filed main suit for possession by way of mandatory injunction and permanent injunction against the appellants on the allegation that they are the owners of the property in dispute bearing Khewat/Khatauni No. 137/167, Rectangle No. 18, Killa No. 25/1 (7-4), situated within the revenue estate of Village Kalwari, as per jamabandi for the year 2000- 2001. It was contended that 15-20 days earlier to the filing of the suit, appellants had taken forcible possession of the property in dispute and after that they have constructed two latrines and also installed two bitoras. RSA No. 4589 of 2011 On the other hand, the case of the appellants is that they are in possession of the property in dispute, shown with red colour in the site plan bearing Killa No. 25/1 (7-4) for the last 40 years. Their possession is open, continuous, uninterrupted and hostile to the knowledge of defendants and that they have become owners of the property in dispute by way of adverse possession. After going through the evidence on the file the suit was ultimately decreed. Learned counsel for the appellants/defendants argued that appellants are in possession of property in dispute shown with red colour in the site plan bearing Killa No. 25/1 and appellants have become owners of the property in dispute by way of adverse possession, but regarding adverse possession, no issue was framed. Without framing any issue in this regard appellants could not lead evidence on that issue. The appellants have become the owners of the property in dispute by way of adverse possession. After going through the record, I am of the opinion that submission of the learned counsel for the appellants is without any force. Main suit for possession was filed on the allegation that respondents/plaintiffs are the owners in possession of the property in dispute bearing Killa No. 25/1, portion shown with red colour in the site plan and 15-20 days earlier to the filing of the suit for possession, property in dispute was forcibly occupied by the present appellants. Different jamabandis from the years 1962-63 to onwards on the file Ex. P4 to Ex.P12 shows that the respondents/plaintiffs along with other persons are the owners of the property in dispute. 2 RSA No. 4589 of 2011 At the time of arguments, learned counsel for the appellants submitted that no issue regarding adverse possession was framed and in the absence of a specific issue, appellants had no occasion to lead evidence. When no issue regarding adverse possession was framed but no objection was raised by the appellants regarding non framing of issue of adverse possession but after the issues, evidence was led by both the parties and no application requesting the Court to frame issue regarding adverse possession then all this shows that parties were clear as to what is the controversy. According to the respondents/plaintiffs, they are the owners of the property in dispute bearing Killa No. 25/1, including portion shown with red colour in the site plan and the property in dispute was forcibly occupied by the present appellants and they have constructed two latrines and also installed two bitoras. On the other hand, the case of the appellants is that they are in possession of the property in dispute and have become owners of the property in dispute by way of adverse possession but as per written statement, appellants are not clear as to who are the owners of the property in dispute and no particular date was mentioned as to when the appellants came in possession of the property in dispute. Simple allegation of the appellants is that they are in possession of the property in dispute for the last 40 years, so they have become the owners of the property in dispute by way of adverse possession. In case no specific issue regarding adverse possession was framed then no prejudice was caused to the appellants because allegation of the appellants is that the respondents/plaintiffs are not the owners of the property in dispute. In fact they are the owners in possession of the property in dispute. In the written statement appellants 3 RSA No. 4589 of 2011 failed to plead as to who are the owners of the property in dispute and from which date they are in possession of the same. Appellants are not clear in which capacity they are occupying the disputed property, shown with red colour in the site plan. Concurrent findings of fact has been recorded by the Courts below against the appellants. The disputed property shown with red colour in the site plan is owned by the respondents/plaintiffs along with some other persons but the appellants are not admittedly the owners of the property in dispute. No substantial question of law is involved in this appeal For the reasons recorded above, no ground to differ with the findings of the Courts below while disposing of the RSA, High Court is to interfere, if the evidence on file was misread or judgment is perverse. Accordingly the instant appeal without any merit is dismissed. 22.11.2011 (JORA SINGH) Sham JUDGE 4