Regular Second Appeal No.2686 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2686 of 2009 Date of decision: 20.07.2009 1. Smt. Manohri Devi wd/o Biru Ram, 2. Rameshwar, 3. Singh Ram, 4. Balvinder, 5. Rajinder, sons of Shri Biru Ram, Lrs of Biru Ram son of Shri Jiwana, since deceased. All residents of village Beer Balsua, Sub Tehsil Radaur, Tehsil Jagadhri, District Yamuna Nagar. 6. Taro Devi @ Tarawati d/o Biru Ram and wife of Gian Chand, r/o village Manglore, Tehsil Jagadhri District Yamuna Nagar. ..... Appellants. Versus 1.Smt. Chinto w/o Shri Kreshan s/o Shri Kundan, resident of village Beer Balsua, Sub Tehsil Raduar, Tehsil Jagadhri, District Yamuna Nagar. 2.Gram Panchayat Beer Balsua, Sub Tehsil Radaur, Tehsil Jagadhri, District Yamuna Nagar, through its Sarpanch. ..... Respondents. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:-Mr. Ranjit Saini, Advocate for the appellants. ---- Regular Second Appeal No.2686 of 2009 -2- Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 20.07.2006, rendered by the Court of Civil Judge (Junior Division) Jagadhri, vide which it decreed the suit of the plaintiff, for possession and the judgment and decree dated 17.03.2009, rendered by the Court of Additional District Judge, Yamuna Nagar at Jagadhri, vide which it dismissed the appeal. 2. The facts, in brief are that the suit property was allotted to one Kundan, father- in-law, of Chinto, plaintiff (now respondent no.1), in the year 1953-54 by Gram Panchayat, Bar Balsua. Kundan, thus, became the owner in possession of the suit property. Krishan, husband of the plaintiff and son of Kundan, was not heard of for the last more than 20 years. Kundan died. He had no other legal heir except the plaintiff. After the death of Kundan, Chinto became the owner in possession of the property, in dispute. It was stated that Kundan constructed one kacha kotha, in the suit property, which was still, in existence, in a Regular Second Appeal No.2686 of 2009 -3- dilapidated condition. It was further stated that four months prior to the filing of the suit, the defendants started placing fodder in the suit property, and encroached upon it forcibly and illegally. It was further stated that the plaintiff requested the defendants not to encroach upon the suit property but in vain. It was further stated that the plaintiff got the suit property demarcated on 05.12.1992, which showed the unauthorized possession of defendant no.1, over the same. It was further stated that, in the month of June, 1997 in violation of the status quo order, passed by the trial Court, the defendants raised construction of two rooms. It was further stated that the defendants were asked, so many times, to vacate the property and hand over the possession thereof to the plaintiff, but to no avail. On their final refusal to accept the request of the plaintiff, left with no alternative, a suit for possession was filed. 3. Defendant no.1, put in appearance, and contested the suit, by way of filing written statement. He pleaded therein, that the suit Regular Second Appeal No.2686 of 2009 -4- was not maintainable. It was further pleaded stated that no cause of action had accrued in favour of the plaintiff to file the suit. It was further pleaded that the suit was barred by time. It was stated that the plaintiff was a resident of village Bir Balsua and her husband Krishan had not been heard of for the last 3-4 years. It was further stated that Kundan, who was the owner of the property, in dispute, sold the same, to defendant no.1, for a sum of Rs.650/- on 12.05.1967. It was further stated that a writing was executed regarding the sale of property, in favour of defendant no.1. It was further stated that Kundan handed over the physical possession of the property, in dispute, to defendant no.1. It was further stated that defendant no.1 constructed two katcha rooms, one kitchen and one chappar, in the suit property, and also installed khurlis, khuntas and grass cutting machine. Trees of kikar and nasura also existed in the suit property. It was further stated that defendant no.1 had been in continuous, undisturbed and hostile possession over the suit property, for the last more than 12 years Regular Second Appeal No.2686 of 2009 -5- and hence, he became owner of the same, by way of adverse possession. It was denied that Kundan ever constructed any room, over the suit property. It was also denied that defendant no.1 violated the orders of the Court. It was stated that the demarcation report was null and void. The remaining averments were denied. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court:- “1- Whether the plaintiff is owner of the suit property? If so, whether she is entitled to possession of the same ?OPP 2- Whether the defendants are owner in possessio of the suit property? If so its effect OPD 3- Whether the suit of the plaintiff is false and frivolous ?OPD 4- Relief.” 5. The parties led evidence, in support of their case. The trial Court after hearing the Counsel for the parties, and, on going through the evidence and record of the case, decided issue no.1 in favour of the plaintiff, and issue no.2 was Regular Second Appeal No.2686 of 2009 -6- decided against defendant no.1 by observing that he was not the owner of the suit property, whereas issue no.3 was not pressed. Ultimately, the trial Court decreed the suit. 6. Feeling aggrieved, against the judgment and decree dated 20.07.2006, passed by the trial Court, the legal heirs of defendant no.1 (deceased) filed an appeal, before the Appellate Court, Yamuna Nagar at Jagadhri, which vide its judgment and decree dated 17.03.2009 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the appellants. 8. I have heard the Counsel for the appellants, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants, submitted that both the Courts below, fell into a grave error by not relying upon Mark 'A', document on the basis whereof, the property, in dispute, was sold by Kundan, in favour of the predecessor-in- interest of the appellants, for a sum of Rs.650/-. Regular Second Appeal No.2686 of 2009 -7- He further submitted that the findings of the Courts below, to the extent that the predecessor- in-interest of the appellants was not in possession of the property, in dispute, are perverse. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellants, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. From the evidence, on record, as also from the admission of defendant no.1 and his witnesses, it was proved that the suit property was originally allotted in favour of Kundan, father-in-law, of respondent no.1. Even from the jamabandi for the year 1989-90, Kundan was shown to be in possession of the Bara, in question, as gair marusi, and was recorded as owner thereof. It was also established from the record that Krishan son of Kundan had not been heard of for the last more than 20/22 years at the time of filing the suit. Badama Ram, DW-1 and Regular Second Appeal No.2686 of 2009 -8- Gainda Ram, DW-2, also admitted, in their cross- examination, that Krishan had not been heard of for the last more than 20-25 years. It was also admitted by Badama, DW-1 that Chinto, plaintiff (now respondent no.1) is the wife of Krishan. No doubt, defendant no.1, predecessor-in-interest of the appellants, placed reliance on Mark 'A', a writing dated 12.05.1967, vide which Kundan, allegedly sold the property, in dispute, in his favour. This document was not proved, in accordance with the provisions of law. Not only this, this unregistered document showed that the sale was effected for a sum of Rs.650/-. Sale, in respect of the property worth Rs.100/- or more, could only be effected by executing the sale deed. So the version of the appellants that their father purchased the property from Kundan, was not proved from the evidence on record. Regarding encroachment over the property, in dispute, by the predecessor-in-interest of the appellants, demarcation report Ex.P-2 of the Local Commissioner dated 05.12.1992 was sufficient. From this demarcation report, it was proved that Beeru Ram, Regular Second Appeal No.2686 of 2009 -9- predecessor-in-interest of the appellant, had encroached upon the property, in dispute. Once the plea of the predecessor-in- interest of the appellant that he purchased the property, in dispute, from Kundan and came into possession thereof, was not proved, but on the other hand was falsified from the evidence on record, he could certainly be said to be in illegal possession of the property after having encroached upon the same. The suit was filed on 02.02.1993 for possession, on the basis of possessory right, by Chinto i.e. within six months from the date of encroachment i.e. 05.12.1992. In the pleadings, no specific plea was taken by the predecessor-in-interest of the appellants as to when his possession became adverse to the plaintiff (now respondent no.1). So his plea of adverse possession was also not proved. The concurrent findings of fact, recorded by the Courts below, that Kundan, predecessor-in-interest of the plaintiff, was allotted the property, in dispute, by Gram Panchayat and he came into possession thereof; that Krishan son of Kundan was not of heard for the last more than 20 years and as Regular Second Appeal No.2686 of 2009 -10- such was deemed to be dead; that after the death of Kundan, the plaintiff (now respondent no.1), his legal heir succeeded to the property, in question, and was in possession thereof; that defendant no.1, predecessor-in-interest of the appellants, failed to prove that he purchased the property from Kundan; that the predecessor-in-interest of the appellants and the appellants encroached upon the property, in dispute within six months prior to the filing of the suit and, as such, the plaintiff (now respondent no.1) was entitled to the possession of the property, in dispute, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality or perversity and, thus, warrant no interference. The judgments and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 11. No question of law, much less substantial, arises in this appeal, for the determination of this Court. Regular Second Appeal No.2686 of 2009 -11- 12. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) July 20, 2009 Judge dinesh