RSA No. 2924 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 2924 of 2006(O&M) and Cross Objections No. 15-C of 2008 Date of Decision: October 09, 2009 Sher Singh ...... Appellant Versus Kusum and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Parminder Singh, Advocate for the appellant. Mr.Ashish Aggarwal, Advocate for the respondent-cross-objectors. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against that portion of the judgment of the learned lower Appellate Court whereby even though it has been held that the appellant is entitled to the possession of the property in dispute yet he has been directed to take appropriate proceedings in this regard. Learned counsel has argued that the appellant had filed a suit for possession and, therefore, to relegate him to independent remedy for taking possession is completely illegal. The following questions have been proposed in the appeal:- 1. Whether a suit for possession is maintainable for seeking ejectment of the person who is in unlawful and illegal possession of the property in dispute? 2. Whether the learned trial court has rightly allowed the suit for possession by the appellant-plaintiff seeking ejectment of RSA No. 2924 of 2006(O&M) 2 the respondents from the house in dispute? 3. Whether the learned lower Appellate Court has erred in law holding that it cannot be presumed the possession of the respondents-defendants is lawful, rather they are in illegal possession of the premises in dispute but the appellant- plaintiff can seek the remedy under the law for evicting in due course of law? In my opinion question No.3 in the appeal has to be decided in favour of the appellant. Once the court found that the appellant was entitled to possession and in fact the appellant had filed a suit for possession, there was no occasion for the learned lower Appellate Court to relegate him to a separate remedy. In the cross-objections filed the respondents have sought to displace the findings regarding the entitlement of the appellant to the possession of the house. The following questions have been proposed in the cross-objections:- I. Whether in the absence of no evidence regarding the ownership of Tikka Devi over the suit property, the finding that Tikka Devi is the owner is liable to be reversed? II. Whether the material evidence on the record i.e. Exs. D- 6, D-7 and D-8 to D-19 have been completely ignored while passing the impugned judgments which show that Tikka Devi is not the owner of the suit property? III. Whether it is well settled that an erroneous admission in the pleading can be allowed to be explained and withdrawn in view of the law laid down in Vinod Kumar Vs. M/s Baldev Krishan Kumar Commission agents, 2006(2) RCR (Civil) 420, Ranjan vs. Financial Commissioner, Punjab, 1972 RLR 72, Indian Oil Corporation vs. Municipallity Tnahesar, 1989 (1) RRR 128? IV. Whether the learned courts below have ignored the well settled principle that even in the absence of pleading, the RSA No. 2924 of 2006(O&M) 3 evidence on the record can be looked into in view of the law laid down by the Division Bench of this Hon'ble Court in Ram Niwas and another vs. Rakesh Kumar and others, AIR 1981 Punjab 397 (DB)? V. Whether the courts below have ignored the well established principle of law that the plaintiff has to stand on his own legs and he cannot take the benefit of the weakness of the case of the defendant? VI. Whether the entire approach of the learned courts below to the present case is patently illegal, void and without jurisdiction and a finding that Tikka Devi is the owner of the suit property is liable to be reversed? VII. Whether grave and manifest injustice has been caused to the cross-objectors in the matter? It would be seen that questions No. I, II, IV, V, VI and VII are pure questions of fact. With regard to question No. III no doubt the same is a question of law but once it was held that Basant Lal could not prove his ownership then the admission that Tikka Devi was the owner could not be said to be an erroneous admission. Thus this question is decided against the cross objector and the finding regarding ownership of Tikka Devi is upheld. Consequently this appeal is allowed. The judgment and decree of the learned lower Appellate Court is set aside while of that of the trial court is maintained. Cross-objections are, however, dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE October 09, 2009 sunita