RSA No.3535 of 2009 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3535 of 2009 (O & M) Date of decision: 12.08.2010 Satpal and others .. appellants Versus Prem Singh (died) through LRs and others. .. Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.R.N.Lohan, Advocate for the appellants. Mr.Amit Kumar Jain, Advocate for respondents. * * * * Mehinder Singh Sullar, J. (Oral) Tersenessly, the facts relevant for disposal of the present appeal and emanating from the record are that Sat Pal, son of Gopi Chand and others, appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit for a decree of declaration to the effect that they became the owner of the land in dispute by way of adverse possession and are entitled to get the same mutated in their names in the revenue records as owners, with a consequential relief of permanent injunction restraining Prem Singh-since deceased being represented by his LRs and others, respondent-defendants (for short “the defendants”) from interfering into their peaceful possession, inter alia pleading that they are in cultivating possession of the suit land for the last more than 35 years without paying any rent or batai. Although, the fathers of the defendants have previously filed the suit for possession in respect of the land against the plaintiffs which was decreed in their favour by virtue of judgment and decree dated 24.05.1975, but still the plaintiffs are in continuous cultivating possession over the land in dispute. 2. Concisely, the plaintiffs claimed that they have become owners of the RSA No.3535 of 2009 (O & M) ::2:: suit land by way of adverse possession, but the defendants intend to forcibly dispossess them without any legal right. On the strength of the aforesaid pleadings, the plaintiffs filed the suit for decree of declaration and permanent injunction against the defendants in the manner indicated hereinabove. 3. The defendants contested the suit and filed the written statement inter alia pleading certain preliminary objections of maintainability of the suit, cause of action, locus standi, non-joinder of necessary parties and estoppel etc.. According to the defendants, the possession was transferred to them in pursuance of the decree of the Civil Court and mutation to that effect was also sanctioned in their favour. They started cultivating the suit land but now inadvertently, the gridawari entries have been entered in the name of the plaintiffs. The defendants have moved an application for its correction. Succinctly, the defendants claimed that they are owner and in possession of the suit land and plaintiffs have got no right, title or interest in it. It will not out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. In the wake of the pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 5. The parties to the litigation brought on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 6. Having completed all the codal formalities and on ultimade analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs by virtue of impugned judgment and decree dated 04.03.2009. 7. Aggrieved by the judgment and decree of the trial Court, appellant- plaintiffs filed the appeal which was dismissed as well by the first Appellate Court vide impugned judgment and decree dated 15.06.2009. 8. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and decree of the Courts below and filed the present appeal, that is how, RSA No.3535 of 2009 (O & M) ::3:: I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 10. As is evident from the record, Smt.Jai Kaur was the owner of the suit property, she had exchanged this land with the land of Ram Kishan and Nand Ram by way of exchange deed dated 16.12.1995. Consequently, they came in possession of the land in dispute as owner. Anyhow, thereafter, Gopi Chand and Kehar Chand took over the possession of the suit property. Subsequently, Ram Kishan and Nand Ram filed the suit for seeking a decree of possession against the Gopi Chand and also the LRs of Kehar Chand. The suit was filed on 05.08.1968 in which Gopi Chand and successor-in-interest of Kehar Chand (since deceased) had claimed the ownership of the disputed land by way of adverse possession. The suit was decreed and a decree for possession was passed in favour of Ram Kishan and Nand Ram and against the defendants. Meaning thereby, the plea of adverse possession of the plaintiffs raised in the present suit was explicitly negatived by the trial Court in the earlier suit. The perusal of the record would further reveal that mutation of the land in dispute was sanctioned in favour of decree holders- Ram Kishan and Nand Ram in pursuance of the Civil Court decree which pre- supposes the delivery of possession to them. In the instant suit, the plaintiffs have again claimed the ownership of the land in dispute by way of adverse possession, which has already been negatived. Even, in that eventuality, a heavy burden of proof was upn the plaintiffs to prove their hostile and adverse possession. They have miserably failed in this context. 11. In this manner, the trial Court has dismissed their suit and the first Appellate Court affirmed the decree of the trial Court vide impugned judgment and decree dated 15.06.2009. The operative part of which is as under:- "24. Keeping in view the totality of facts and circumstances, when it is conceded by the plaintiffs that mutation of decree (Ex.P-2) had been RSA No.3535 of 2009 (O & M) ::4:: sanctioned in favour of Ram Kishan and Nand Ram (Predecessor-in- interest of the defendants), there does not remain any dispute that they had come in possession of the same. In view of possession of the defendants on the spot as a fact mere entries in the revenue record do not cut any ice. Evidence of Sat Pal and Inder Singh PWs (relying merely on the revenue documents) is highly sweeping, very general and non-clinching. Thus, possession of the plaintiffs, as a fact has not been proved. Consequently, withdrawal of execution petition vide order dated 19.08.2006 (Ex.P-13), ipso facto, can not be construed adversely to the defendants. Consequently, findings of the learned lower court on issues No.1 and 2 returned against the plaintiffs, though these issues were approached differently by the learned lower court are affirmed. 25. Learned counsel for the appellants has not been able to successfully dislodged the adjudication made by the learned lower court. Learned counsel for the appellants has not been able to successfully meet the law laid down in authority reported as Bhim Singh and others Vs. Zile Singh and others 2006 (3) PLR 159 (P & H), wherein it was held that no declaration can be sought by the plaintiff with regard to his ownership on the basis of adverse possession, as this plea is available only to defendant against the plaintiff. Reference may also be made to authorities reported as Dewaki and others Vs Daya Wanti and others 2006(3) PLR 132 (P&H) and Himati Rai Versus Kehar Singh 2008 (4)RCR (Civil) 530 (P& H). 26. Learned lower court was right in making observations that pursuant to judgement and decree dated 24.05.1975 (Exs.P-1 and P-2 respectively), possession had been obtained by the defendants, as mutation was sanctioned in their favour. Fact of sanctioning of mutation of the decree (Ex.P-2) in favour of the defendants is conceded by Sat Pal (PW-1) and Inder Singh PW-2. It was then for the plaintiffs to prove that on dislodging the defendants, they had come in possession of the suit land. Some neighbouring agriculturist or respectable of the village could have been examined by the plaintiffs to prove their alleged possession as a fact. The plaintiffs have not produced any such evidence. Learned lower court, thus, right in answering issues No.3 and 4 in favour of the defendants. These findings being correct on facts as also in law are also affirmed". RSA No.3535 of 2009 (O & M) ::5:: 12. Thus, I am of the view that the Courts below have rightly negatived the claim of ownership of the plaintiffs by way of adverse possession. Therefore, the contrary argument of learned counsel for the appellant-plaintiffs stricto sensu deserve to be and are hereby repelled under the present set of circumstances. 13. No other meaningful argument has been raised by learned counsel for the appellant-plaintiffs to assail the findings of the Courts below in this respect. All remaining submissions, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiffs have already been duly considered and dealt with by the Courts below. 14. There is another aspect of the matter, which can be viewed from a different angle. The trial Court as well as the first Appellate Court have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. 15. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well articulated and well reasoned concurrent above-indicated findings of fact. Such pure concurrent findings of fact, based on the evidence, cannot possibly be interfered with by this Court while exercising the powers conferred under Section 100 CPC unless and until the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by learned counsel for the appellant-plaintiffs so as to take a contrary view, than that of well reasoned decisions already arrived at by the Courts below in this regard. 16. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by the Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008(2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the RSA No.3535 of 2009 (O & M) ::6:: impugned judgments/decrees of the Courts below as contemplated under Section 100 CPC, in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) August 12, 2010 JUDGE sukhpreet Whether to be referred to report ? Yes/No