REGULAR SECOND APPEAL No. 4558 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4558 OF 2009 DATE OF DECISION: JANUARY 10, 2011 Gurdev Singh .... Appellant Versus Sheela and another .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Harsh Aggarwal, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No. 13669-C of 2009 For reasons mentioned in the application, delay of 16 days in refiling the appeal is condoned. CM No. 13670-C of 2009 Allowed as prayed for. CM No. 13671-C of 2009 Allowed as prayed for and Annexures A-1 to A-3 are taken on record, subject to all just exceptions. CM No.13672-C of 2009 Allowed as prayed for. Main Appeal Defendant No.1-Gurdev Singh having failed in both the courts below is in second appeal. Respondent No.1-plaintiff Sheela Devi filed suit against appellant- defendant No.1 Gurdev Singh and Piara Singh defendant-respondent No.2 REGULAR SECOND APPEAL No. 4558 of 2009 -2- alleging that the plaintiff is owner of the suit land in view of partition order passed by the Assistant Collector. Possession thereof was delivered to her on 10.05.1996. However, about a year before the filing the suit, defendant No.1 took illegal possession of 4 Bighas 4 Biswas land comprised of Khasra Nos.1719/327 (2-11) and 1718/327/2 (1-13), whereas defendant No.2 entered into illegal possession of 4 Bigahs 9 Biswas land comprised of Khasra Nos.1636/322/4(2-6) and 301/3(2-3). Defendants are thus in illegal possession of the aforesaid suit land. Plaintiff sought possession of the suit land on the basis of the title. Defendant No.2 did not file any written statement. Only defendant No.1 filed written statement controverting the claim of the plaintiff. It was alleged that plaintiff has no concern with the suit land. The partition order, if any, is void. Originally Chuhar Singh was owner in possession of Khasra No.1718/327/2 (1-13) along with other land. He gave the same in exchange to Ram Kishan, father of defendant No.1-appellant and possession was also exchanged. Since then Ram Kishan was owner in possession thereof and after his death, defendant No.1 being his legal heir is in possession thereof and has also become owner by adverse possession. Mutation of exchange regarding land given by Ram Kishan in exchange was sanctioned in favour of Chuhar Singh, but mutation regarding the land given by Chuhar Singh to Ram Kishan in exchange has not been sanctioned. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Dhuri vide judgment and decree dated 01.12.2006 decreed the plaintiff's suit. First appeal preferred by defendant No.1 has been dismissed by learned Additional District Judge (Adhoc), Fast Track Court, Sangrur vide judgment and decree dated 27.05.2009. Feeling aggrieved, defendant No.1 has preferred the instant REGULAR SECOND APPEAL No. 4558 of 2009 -3- second appeal. I have heard learned counsel for the appellant and perused the case file. At the outset, it has to be noticed that defendant No.2 did not contest the suit and did not challenge the decree of the trial court regarding four bigas 9 biswas land which was in his possession. It may also be noticed that even defendant No1-appellant raised his defence regarding 1 bigha 13 biswas land only out of 4 bighas 4 biswas land which was alleged to be in his illegal possession. Thus even defendant No.1 did not contest the plaintiff's claim regarding remaining 2 bighas 11 biswas land of khasra No.1719/327. Consequently, the dispute remains regarding 1 bigha 13 biswas land only of khasra No.1718/327/2. Learned counsel for the appellant contended that plaintiff has not produced the partition order on the basis of which she is claiming title of the suit land. The contention cannot be accepted because file of the partition case was summoned by the plaintiff but the concerned official stated in the Court that the said file was not traceable. However, plaintiff has examined Avtar Singh, Kanungo who delivered possession of the suit land to the plaintiff on the basis of the partition order. This witness has proved his report Exhibit P-1 regarding delivery of possession of the suit land to the plaintiff falling to her share in the partition, pursuant to partition order passed by the revenue court. On the contrary, defendant No.1 has alleged that his father got the suit land (1- 13) from Chuhar Singh in exchange. However, there is no cogent evidence to prove the alleged exchange. Defendant No.1 specifically pleaded that mutation of land given by his father to Chuhar Singh in exchange was sanctioned. However, even the said mutation has not been produced in REGULAR SECOND APPEAL No. 4558 of 2009 -4- evidence. Consequently it is apparent that there was no such exchange as alleged by defendant No.1. On the contrary, defendant No.1 pleaded his ownership on the basis of adverse possession, which he has failed to prove. However, plaintiff has proved her case by leading positive evidence whatever was available. There is concurrent finding by the courts below in favour of plaintiff. The said finding is fully justified by the evidence on record and is supported by cogent reasons recorded by the courts below and is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of merit and is, therefore, dismissed in limine. (L. N. MITTAL) JUDGE 10.01.2011 'raj'