IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2187 of 2010 (O&M) Date of Decision: 28.5.2010 Chote Lal. ....... Appellant. Versus Ansal Housing and Estate Pvt.Ltd. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri O.P.Sharma, Advocate for the appellant. Shri Sanjay Vij, Advocate for the respondent-caveator. .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. C.M.No.6658-C of 2010 The application is accepted and delay of 69 days in the refiling of the appeal is condoned. C.M.No.6659-C of 2010 Allowed as prayed for. R.S.A.No.2187 of 2010 & C.M.No.6660-C of 2010 The defendant is in second appeal. He has also prayed for stay of the execution of the impugned decrees during the pendency thereof. R.S.A.No.2187 of 2010 (O&M) -2- .... The plaintiff-respondent filed a suit seeking possession of land measuring 9 kanals 3 marlas. It was claimed that the said land was purchased vide registered sale deed dated 26.7.1990 and a mutation was accordingly sanctioned. The possession of the land was also said to have been delivered to it by the vendor. It was pleaded that the defendant, who is a strong-headed person, filed a false suit for declaration with consequential relief of permanent injunction which was pending in the civil court at Gurgaon and therein, he got appointed a local commissioner, who submitted a wrong report in his favour; that thereafter, he illegally trespassed over the suit land; and that he has no right to remain in possession which was unauthorized and without the consent of the plaintiff. The defendant, upon notice, appeared and filed his written statement. He pleaded estoppel, res judicata, adverse and valid possession. The sale deed in favour of the plaintiff qua the suit land was alleged to be false and it was averred that the alleged vendor had no right to alienate the same. It was further averred that he was owner of the suit land and had entered its possession more than 35 years ago against the consent of the previous owners, who had lifted some earth forcibly for operating a brick- kiln from some other land belonging to him and since then, he is in possession thereof which is open and hostile to the true owner. The revenue entries were pleaded to be erroneous. The parties went to trial on the following issues:- 1. Whether the suit has been filed by a duly authorized person?OPP R.S.A.No.2187 of 2010 (O&M) -3- .... 2. Whether the plaintiff is owner of the suit property as alleged? If so to what effect?OPP 3. Whether the plaintiff is entitled to mense profit at the rate of Rs.24,000/- per year as alleged?OPP 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the defendant has become owner of the suit land by adverse possession?OPD 6. Whether the suit is barred under Order 2 Rule 2 CPC?OPD] 7. Relief. Both the Courts below determined that the sale deed in favour of the plaintiff was a valid transaction and that the defendant had no right to remain in possession of the suit land. His possession was termed to be unauthorised and his plea of adverse possession was discarded. He was also held liable to pay mense profits at the rate of Rs.24000/- per year from the date of filing of the suit till the date of recovery of possession. Thus, the suit of the plaintiff was decreed and the appeal of the defendant was dismissed which has resulted in filing of the instant appeal by him. Questioning the findings recorded in the impugned judgments, learned counsel for the defendant-appellant has contended that the same are perverse and liable to be set aside. The plaintiff-respondent is on caveat. Its learned counsel justified the findings recorded by the Courts below and referred to the stand of the defendant which is totally at variance with the pleadings. R.S.A.No.2187 of 2010 (O&M) -4- .... I have heard the learned counsel for the parties and have perused the impugned judgments. The defendant had pleaded that he is in possession of the suit land since long. However, he has adopted a completely vacillating stand. He has not been able to correctly depict the nature and terms of his possession over the suit land. The clincher in the case are Exhibits PW4/1 and P17, which are the certified copies of the plaint and the statement of the defendant made in Civil Suit No.95 of 1992. That suit was filed by the defendant qua the suit land. In the plaint Exhibit PW4/1, he had pleaded that previous owners, namely, Sher Singh etc. had lifted earth for their brick kiln from his land and when he objected to it, they had given the land in dispute to him in lieu of his land from where the earth was lifted. In his written statement filed in the instant suit, the defendant had pleaded that since vendors of the plaintiff had lifted earth from his other land, he had entered possession of the suit land more than 35 years ago against the consent of the owners. However, in statement Exhibit P17, he deposed in cross-examination that his father had purchased the suit land. However, he failed to tell the name of vendor his father. Thus, the stand of the defendant is self- contradictory. In this case, he has essentially taken a plea that he is in possession of the suit land since long which is open and hostile. He nowhere pleaded that the suit land had been given to him in lieu of the land which was used by the vendors of the plaintiff for lifting earth or that it had come to him from his father, who had allegedly purchased the same. As mentioned above, in his cross-examination, he had failed to name of the R.S.A.No.2187 of 2010 (O&M) -5- .... person from whom his father had purchased the same. In any eventuality, if these two material pieces of evidence are to be evaluated, then it is evident that the defendant is an untruthful person, who is occupying the suit land without any authority. Learned counsel for the defendant-appellant has not been able to off-set the impact of these pieces of evidence on the findings of the Courts below on this issue and, therefore, the same can hardly be termed to be erroneous. An attempt was then made by the counsel for the defendant- appellant to say that mense profits which have been determined, are on higher side as there was no material on record from where such a figure could be arrived at. Before determining this question, the Court had asked the learned counsel for the defendant-appellant if he was willing to settle the matter regarding the entire litigation to which, on instructions from his client, he replied in the negative. The Court has, therefore, no option but to evaluate the material on record. The defendant is in unauthorised possession of 9 kanals 3 marlas of land. The Courts below have granted Rs.24000/- per year as mense profits from the date of filing of the suit till the recovery of possession. The area of 9 kanals is obviously more than one acre and it is situated within the revenue estate of village Choma, Tehsil & District Gurgaon. Therefore, by no stretch of imagination, the mense profits as granted by the Courts below can be termed to be exorbitant. R.S.A.No.2187 of 2010 (O&M) -6- .... No other aspect of the matter has been pressed, There is, thus, no substantial question of law which has been shown to have arisen in the instant appeal. Having regard to the aforesaid, the appeal is held to be without any merit and is dismissed. In view of the above, the application for interim stay also stands rejected. May 28,2010 ( Mahesh Grover ) “SCM” Judge