RSA No.2655 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2655 of 2008 Decided on: November 20,2008. Tarsem Lal ......Petitioner Versus Jaswinder Kaur .....Respondent Coram Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia Present Mr. J. S. Bhandohal, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J ( Oral ) Jaswinder Kaur @ Surinder Kaur instituted a suit against her son Tarsem Lal for mandatory injunction directing her son( defendant) to vacate and hand over the possession of a house bearing 101 Sq. yards details and description of which were given in the headnote of the plaint. A further permanent injunction was sought that the defendant be restrained from raising any construction over the property in dispute. In the plaint, it was stated by the plaintiff that the plot in question was owned by her mother Gurnam Kaur. After death of Gurnam Kaur she succeeded to the property being her daughter. About 5/6 years ago before filing of the plaint, the defendant was allowed to live in the demised premises alongwith his family as a licencee as plaintiff permitted him to do so., on the assurance given by the defendant that he will vacate the premises and hand over the vacant possession to the plaintiff as and when same was demanded. In the year 2006, plaintiff requested her son defendant to vacate the suit property. Inspite of doing so, a suit was filed for permanent injunction by the defendant against his mother-plaintiff and his father-Amar Singh and brother Nirmal Singh. The suit instituted by the defendant was decided on 19.10.2002 whereby plaintiff alongwith her husband and son were restrained from dispossessing Tarsem Lal from the suit property except in due course of law. Present suit has been filed that since defendant-son is a licencee. He has not right to retain the possession of the house especially when many requests of her have not been heeded to. RSA No.2655 of 2008 2 Notice of the suit was issued. Defendant caused appearance. It was admitted that Gurnam Kaur, maternal grand mother was the owner of the house. However, it was denied that the plaintiff succeeded to the property. It was also denied that 5/6 years ago defendant was permitted to live in the house. It was stated that he is in possession of the house for the last 13 years as owner by adverse possession which has been open, long, continuos, without any interruptions and hostile to the plaintiff and whole world. It was denied that he was asked to vacate the premises. It was stated that the defendant alongwith his grand mother Gurnam Kaur used to live in the house in dispute whereas other family members used to reside in another house. It was pleaded that about 12-13 years ago an oral family settlement was arrived at between the parties to the suit. Amar Singh, father of the defendant and Nirmal Singh , brother were also signatories to the family settlement. It was stated that plaintiff had opted to live with Nishan Singh. Replication to the written statement was filed. Averments made in the plaint were reiterated. After conclusion of the pleadings, following issues were framed:- 1.Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped from filing the present suit by their own act and conduct? OPD 5. Whether the suit is barred by principles of resjudicata? OPD 6. Whether the defendant is in possession over the suit property for the last 30 years and has become owner by adverse possession as detailed in para nos. 2 and 3 of the written statement? OPD 7. Whether the suit is false and frivolous and defendant is entitled to special costs? OPD RSA No.2655 of 2008 3 8. Relief. Plaintiff himself appeared as PW1 examined her husband Amar Singh as PW2 and Bhupinder Singh as PW3. Defendant himself appeared as DW1and examined one Satish Kumar as DW2. The trial Court came to the conclusion that defendant failed to substantiate his version regarding family settlement or by way of adverse possession. However, held that plaintiff failed to prove that she succeeded by way of natural succession as she has not proved that she was only legal representative. It was further held that since defendant was in possession, relief could not be granted to plaintiff. Aggrieved against the same, plaintiff filed appeal, same was decided by District Judge, Patiala. Now Appellate Court held that no objection was taken by the defendant in the written statement that plaintiff alone is not the owner and she has other sisters and brothers etc. It is further held that defendant has failed to prove that he has adverse possession over the property. It was further stated that defendant has relied upon family settlement, therefore, plea of adverse possession cannot be accepted. It was held that family settlement has not been proved. After discussing the evidence, the Appellate Court decreed the suit for mandatory injunction directing the appellant/defendant to hand over the house in dispute. He was further restrained from raising any type of construction over property in dispute. I have heard Sh. J. S. Bhandohal, counsel for the appellant/defendant. He has failed to advance any meaningful argument to assail the finding of fact recorded by Appellate Court below. The appellant- defendant has been projecting that he by way of adverse possession or due to the family settlement he has come into the possession of the property and therefore he has become owner of the property. Oral family settlement could not be proved as the witness relied upon were not accepted by two Courts below. It may be further presumed that defendant is son of the plaintiff and 5/6 years ago he was allowed to use the property, thus he cannot claim ownership by way of adverse possession. On the facts of the case, no substantial question of law arise which should require RSA No.2655 of 2008 4 consideration by this Court. Therefore, there is no merit in the present appeal and the same is hereby dismissed. November 20, 2008 (Kanwaljit Singh Ahluwalia ) mamta Judge