R. S. A. No. 4395 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4395 of 2009 Date of Decision : February 11, 2010 Karam Singh .... Appellant Vs. Rachna Ram and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjay Verma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Karam Singh, having remained unsuccessful in both the courts below, has instituted the instant second appeal. Bawli @ Babi Devi (since deceased and represented by respondents as her legal representatives) filed suit against Karam Singh defendant-appellant seeking declaration that mutation no.875 regarding 10 kanals 12 marlas land, representing whole share of the plaintiff, in favour of the defendant, instead of regarding 05 kanals 06 marlas, being half share of the plaintiff's share, pursuant to decree dated 19.11.1983 suffered by the plaintiff, is null and void etc. and so are the subsequent entries in revenue record and the same are liable to be set aside. The plaintiff also sought declaration that she is owner with joint possession of the remaining 05 kanals 06 marlas land, being half share of her total land measuring 10 kanals 12 marlas, including two mango trees and if plaintiff is not found in R. S. A. No. 4395 of 2009 2 joint possession, the plaintiff also sought decree for joint possession of 05 kanals 06 marlas land. The plaintiff also sought permanent injunction restraining the defendant from alienating the said share of the plaintiff in any manner and from changing the nature thereof. Undisputed facts are that the plaintiff suffered a consent decree dated 19.11.1983 in favour of defendant Karam Singh regarding 05 kanals 06 marlas land being half share in her 10 kanals 12 marlas land, which itself is share in larger area of joint land. Consequently, the defendant became owner of 05 kanal 06 marlas land only, whereas the plaintiff continued to be owner of the remaining 05 kanals 06 marlas land. However, on the basis of decree dated 19.11.1983, impugned mutation no.875 was sanctioned regarding entire 10 kanals 12 marlas land of the plaintiff instead of 05 kanals 06 marlas land only. Defendant, however, pleaded that he has become owner of the remaining half share (which is claimed by the plaintiff) by way of adverse possession. Learned Additional Civil Judge (Senior Division), Kurukshetra, vide judgment and decree dated 29.08.2007, decreed the suit of the plaintiff. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Kurukshetra, vide judgment and decree dated 28.08.2009. Feeling still dissatisfied, the instant second appeal has been preferred by the defendant. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that Rachna Ram – respondent no.1 admitted in the witness-box that the plaintiff was residing in a village about 75 kilometers from the village, where the land in dispute is situated. However, this circumstance, by itself, would not show that defendant is in possession of the entire land including half share of the plaintiff. A person residing at a distant place may also continue in R. S. A. No. 4395 of 2009 3 possession of his immovable property. In addition thereto, in the instant case, the plaintiff as well as defendant, are co-sharers in larger area of joint land. There is practically no evidence of ouster of the plaintiff from the joint land in question. Even if for the sake of argument alone, it be assumed that the defendant was in possession of the share of the plaintiff also, even then, his possession could not be said to be adverse to that of the plaintiff. On the other hand, possession of a co-sharer is deemed to be possession of all the co-sharers over the joint land unless ouster of a co-sharer is proved. In the instant case, ouster of the plaintiff co-sharer is not proved at all. In fact, it cannot be said that the defendant was in exclusive possession of the entire land in question because the said land itself is a share in larger area of joint land. It is thus apparent that the defendant has miserably failed to prove that he has become owner of the suit land belonging to the plaintiff by way of adverse possession. There is no infirmity, much less perversity or illegality, in the concurrent finding recorded by both the courts below on proper appreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. For the reasons aforesaid, the instant second appeal is without any merit and is accordingly dismissed in limine. February 11, 2010 ( L. N. MITTAL ) monika JUDGE