Regular Second Appeal No. 652 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 652 of 2008 Date of decision : February 02, 2010 Dharambir and others ....Appellants versus Chet Ram ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kul Bhushan Sharma, Advocate, for the appellants Mr. Jai Vir Yadav, Advocate, for the respondent L.N. Mittal, J. (Oral) This is second appeal by legal representatives of Mehtab Singh defendant since deceased. Chet Ram respondent filed suit alleging that he is owner in possession of the suit plot measuring 3 marlas shown by letters ABCD in the site plan being part of khasra no. 353 measuring 1 kanal 9 marlas. Rampat previous owner thereof gifted the same being 10/96 share of khasra no. 353 to the plaintiff vide registered gift deed dated 18.7.1990. The suit plot came to the share of the plaintiff in mutual partition with other share holders. The plaintiff remained in possession of the suit plot since the date of gift deed till 31.12.1997. However, the defendant in January, 1998 Regular Second Appeal No. 652 of 2008 -2- unauthorisedly encroached upon the suit plot by constructing wall on southern side and has opened a gate therein. Accordingly, the plaintiff claimed relief of possession of the suit plot. The defendant, interalia, pleaded that plaintiff is not owner of the suit plot nor it is part of khasra no. 353. The plaintiff never became owner of the suit plot through registered gift deed nor ever came in possession thereof. The defendant is in possession of the suit plot since 21.5.1968 having purchased it from previous owner Rampat for Rs 800/- but later on Rampat avoided execution of registered sale deed. However, possession of the plot was given to defendant on 21.5.1968 and he continues to be in possession thereof since then. Alleged registered gift deed dated 18.7.1990 is fraudulent. Rampat had no right to execute the same. The suit is also barred by Order 2 Rule 2 of the Code of Civil Procedure ( in short, CPC) on account of dismissal of previous suit filed by the plaintiff. Learned Additional Civil Judge (Senior Division), Rewari vide judgment and decree dated 29.11.2004 dismissed the suit of the plaintiff. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Rewari vide judgment and decree dated 25.1.2008, thereby decreeing the suit of the plaintiff-respondent for possession of the suit property by removal of wall and door. Feeling aggrieved, the legal representatives of the defendant have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Regular Second Appeal No. 652 of 2008 -3- Learned counsel for the appellants vehemently contended that suit plot is not proved to be part of khasra no. 353 as no demarcation thereof was obtained. It was also contended that the plaintiff has not specified the date on which the defendant took possession of the suit land. It was pointed out that according to the plaint, the defendant took possession of the suit land in January, 1998, but in replication and evidence it was stated that possession was taken by the defendant during pendency of the previous suit which was decided on 17.12.1997. It was also contended that the instant suit is barred by res-judicata on account of dismissal of the previous suit instituted by the plaintiff. Learned counsel for the appellants also contended that gift deed is regarding gift of 10/96 share in khasra no. 353 measuring 1 kanal 9 marlas and not regarding specific portion of khasra no. 353 which is now claimed by the plaintiff. It was also argued that there is no evidence to prove that the plaintiff ever remained in possession of the suit plot. I have carefully considered the aforesaid contentions but find no force therein. As regards proof of possession of the plaintiff over the suit plot, admittedly the suit plot was lying vacant and only wall had been constructed by the defendant. Vacant land is deemed to be in possession of the owner. In the instant case, the defendant is not owner of the suit land. The defendant claimed title on the basis of a writing dated 21.5.1968 in Bahi which is un-registered. The defendant claimed to have purchased the suit land from Rampat for Rs 800/-. However, admittedly no registered sale deed has been executed in favour of defendant regarding suit land. The alleged sale being for Rs 800/-, no valid title in the suit land could pass Regular Second Appeal No. 652 of 2008 -4- to the defendant in the absence of the registered sale deed. In fact, even the alleged writing in Bahi has also not been proved. The said writing also does not mention khasra number of the land allegedly sold by Rampat to defendant. There is also no evidence to prove that Rampat was owner of any other land except his share in khasra no. 353 at the spot. Even if it is assumed that specific part of khasra no. 353 now claimed by the plaintiff did not fall to his share in mutual partition, the plaintiff would still remain co-sharer in entire khasra no. 353 and even as co-sharer, the plaintiff can claim possession of the suit plot from defendant who is tres-passer therein. The defendant has no title over the suit plot and therefore, the plaintiff even as co-sharer is entitled to seek relief of possession from the defendant. There is also no evidence to prove that the defendant ever remained in possession of the suit plot. Defendant's whole case is based on alleged writing in Bahi, but the said writing has also not been proved. Moreover, if on the basis of said writing, the defendant could not derive title to the suit land, the defendant could also not be in possession of the suit land being vacant land. As regards demarcation of the suit land, the same is not required. The defendant himself admitted that Rampat was owner of the suit land. Rampat had gifted it to the plaintiff. Even defendant's own witness Rohtas DW1 admitted site plan Ex. P2 to be correct. The site plan depicts that suit plot is part of khasra no. 353. Consequently, it cannot be said that identity of the suit property is not established. As regards date of possession of the defendant over the suit Regular Second Appeal No. 652 of 2008 -5- property, the plaintiff has pleaded that the defendant took possession in January, 1998. Some minor contradiction or discrepancy regarding date or month of taking possession by the defendant would not dis-entitle the plaintiff to relief of possession when his claim is based on title. The previous suit was dismissed on 17.12.1997 and possession might have been taken a little before it and if the plaintiff pleaded in the plaint that possession was taken in January, 1998, it would not make any material difference. Learned counsel for the plaintiff-respondent also pointed out that the plaintiff has not stated in the witness box that possession was taken during the pendency of the previous suit. The contention that the instant suit is barred by resjudicata cannot be accepted because even plea to this effect was not taken in the written statement. Even otherwise, the previous suit instituted by the plaintiff was for permanent injunction only and if during pendency of the said suit or after dismissal thereof, the defendant has taken possession of the suit plot, the instant suit for possession would not be barred by resjudicata. The previous suit was dismissed under Order 17 Rule 3 CPC. The instant suit cannot be said to be barred by resjudicata because there is separate cause of action for seeking relief of possession of the suit land. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed. ( L.N. Mittal ) February 02, 2010 Judge 'tiwana' Regular Second Appeal No. 652 of 2008 -6-