Regular Second Appeal No. 1312 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1312 of 2009. (O&M) Date of Decision: 25.3.2009 *** Raj Singh & Another .. Appellants VS. Bachan Kaur & Another .. Respondents. With Regular Second Appeal No. 1313 of 2009. (O&M) *** Raj Singh & Another .. Appellants VS. Bachan Kaur & Another .. Respondents. With Regular Second Appeal No. 1314 of 2009. (O&M) *** Raj Singh & Another .. Appellants VS. Bachan Kaur & Another .. Respondents. With Regular Second Appeal No. 1315 of 2009. (O&M) *** Raj Singh & Another .. Appellants VS. Bachan Kaur & Another .. Respondents. Regular Second Appeal No. 1312 of 2009 2 With Regular Second Appeal No. 1316 of 2009. (O&M) *** Raj Singh & Another .. Appellants VS. Bachan Kaur & Another .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. A.S. Randhawar, Advocate for the appellants. *** ARVIND KUMAR, J. All the above referred regular second appeals are being disposed of by this common order passed in RSA No.1312 of 2009, since in all the appeals a challenge has been laid to the common judgments and decrees passed by the Courts below, dismissing the suits as also the appeals of the plaintiffs. The facts of the case lies in narrow compass. One Teja Singh, grand-father of plaintiffs and father-in-law of defendant No.1 Bachan Kaur was previous owner of the suit land, after whose death his two sons namely Karam Singh and Darbara Singh, father and husband of plaintiff and defendant No.1 respectively inherited the suit property jointly. Darbara Singh died issueless on 10.4.1995 and defendant No.1 stepped into the shoes of her deceased husband vide mutation sanctioned in her favour bearing No. 9321. Bachan Kaur alienated the suit land vide five different gift deeds dated 27.6.1997 registered on 30.6.1997, 1.7.1997, 2.7.1997, 3.7.1997 and 26.7.1997 in favour of defendant No.2 Shiromani Gurudwara Parbandhak Committee. Aggrieved with the action of defendant No.1 of transferring the suit land to defendant No.2, the plaintiffs filed five different suits and therein laid challenge to the same and sought the ownership rights thereof with the plea that their possession on the suit land is open, continuous and hostile to knowledge of the real owner Teja Singh, who on 21.12.1984 admitted their adverse possession over the suit land in a suit for Regular Second Appeal No. 1312 of 2009 3 declaration filed by the plaintiffs. It was further their case that the suit land is a Joint Hindu Family and Coparcenary property of the plaintiffs and they are having vested rights therein by birth and defendant No.1, who never remained in possession of the same, was not competent to transfer the same in favour of defendant No.2 vide different gift deeds, which is a sham transaction and are liable to be set aside as also the mutation entered in favour of defendant No.1. The plaintiffs also sought consequential relief of permanent injunction for restraining the defendants from alienating, disposing off or transferring the suit land in any manner. On the other hand, the defendants denied the plea of the plaintiffs of their becoming owners of the suit land by way of adverse possession and with regard to admission of Teja singh in another suit, it has been averred that the same is contrary to revenue record, showing the defendants as owners in possession of the suit land after the death of Darbara Singh, who stepped into the shoes of Teja singh and as such the said admission has no validity in the eyes of law. It was further averred that defendant No.1 being the owner in possession of the suit land was well within her rights to gift the same to defendant No.2, who is now in possession of the same by virtue of the gift deeds. The learned trial court disbelieved the version of the plaintiff of their or their father Karam Singh in possession of the suit land being adverse to the real owner Teja Singh. The Civil suit in which Teja singh suffered the statement regarding adverse possession of plaintiffs was found to have been dismissed by the Court and that apart it has been held that the plea of adverse possession is only available to the defendants and not to the plaintiffs. Finding the defendants as co-sharer in the suit property along with plaintiffs, the latter were denied the relief of injunction against the other co-sharers. Observing that delivery of possession is not an essential ingredient of the gift deeds, the suits of the plaintiffs were dismissed. Their appeals also meted with the same fate, leading to the institution of the present regular second appeals. Having heard the learned counsel, I am of the considered view that there is no merit and room to interfere in the concurrent findings recorded by the Courts below. It emerges out from the perusal of judgments passed by the Courts below that with regard to the plea of the plaintiffs of Regular Second Appeal No. 1312 of 2009 4 their becoming owners of the suit land by way of adverse possession, it has been concurrently held that this plea is not available to them in view of the law laid down by this Court in the case of Bhim Singh & Ors. Vs. Zile Singh & Ors. 2006(3) PLR-159 and the said plea is only available with the defendants. The revenue record produced on record revealed the ownership and possession of initially of Teja Singh, after his death of his sons Karam Singh and Darbara Singh and after the death of Darbara Singh that of defendant No.1. Thus, in the light of the entries in the revenue record, it has been held that the said admission of Teja Singh in another suit regarding adverse possession of the plaintiffs, otherwise contrary to revenue record carries no importance in law, which even was discarded by the Civil Court by dismissing that suit. Although the said judgment was set aside by the appellate Court and remanded the case, but the plaintiffs failed to produce any evidence as to the fate of their case after the said remand. Even in that suit, in the year 1984 the plaintiffs claimed their adverse possession for the last 15 years, which was found self contradictory with the plea raised by the plaintiffs in the instant suits of their in possession of the suit land for more than 12 years, to the knowledge of real owner, which otherwise remained unproved on record. Thus, it has been held that with the such change in stand, the plaintiffs are estopped from claiming ownership on the basis of adverse possession. An attempt was made by the plaintiffs to derive benefit of admission made by defendant No.1 regarding the plaintiffs in possession of the suit land for 8-9 years, but while relying upon the cases of giano Vs. Puran & Ors. 2006(1) Punjab Law Reporter 46 and Tirath Vs. Manmohan Singh & Ors. 1981 Punjab Law Reporter 92, it has been held that even if the admission of defendant No.1 is taken to be true, then also gift deeds in question cannot be said to be illegal without delivery of possession, especially when defendant No.1 duly supported and proved the due execution of the gift deeds, which were validly accepted by representative and authorized agency of defendant No.2. Further in the case of Ram Mehar Vs. Jage Ram 7 Ors. 1983 PLJ 247, it has been held by this Court that mere non-participation in rent profits of land by a co-sharer does not amounts to ouster so as to give title by adverse possession to other co-sharers. Co-sharers in possession become constructive trustees on behalf Regular Second Appeal No. 1312 of 2009 5 of co-sharer not in possession and right of such co-sharer deemed to be protected by the trustees. Applying the same analogy, it has been held that since the plaintiffs failed to prove that they have ousted defendant No.1 or her predecessor-in-interest of their title in the suit property, they cannot claim adverse possession as well as injunction against defendants, the co- sharers. It is, thus abundantly clear that the Courts below while evaluating the material on record rightly dismissed the suits of the plaintiffs. It cannot be said that the findings returned by the Courts below are either illegal, perverse or based on no evidence. Therefore, there is no question of law raised in these appeals. The appeals are wholly without merit and the same are accordingly dismissed in limine. Copy of this order be placed in connected RSAs, referred to above. (ARVIND KUMAR) JUDGE March 25,2009 Jiten