RSA No. 3088 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3088 of 2011 (O&M) Date of decision: 9.11.2011 Jaswant Singh and others ........ Appellants Versus Harmail Singh and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. DS Gurna, Advocate for the appellants. JORA SINGH, J. Jaswant Singh, Jasbir Singh and Baldev Singh-appellants- plaintiffs preferred this Regular Second Appeal to challenge the concurrent findings of both the Courts' below. Main suit for declaration was filed by the appellants on the allegation that they are the owners in possession of khasra No. 32//1 khewat No. 37 khatauni No. 41 as entered into jamabandi for the years 1991-92, situated in the revenue estate of village Chaunta Tehsil and District Ludhiana and for permanent injunction restraining the respondents from interfering and taking forcible possession of the above said khasra numbers. Allegation of the appellants was that their grand father RSA No. 3088 of 2011 (O&M) -2- Mohinder Singh was the owner of the abovesaid khasra numbers. He had executed an agreement to sell dated 25.11.1995, qua the land measuring 15 kanals bearing killa Nos. 54/12 and 32/1 khata No. 21//33 and entered into jamabandi for the years 1980-81 but as per agreement to sell possession of khasra No. 32/1 was not handed over to the willing purchaser. Respondents/defendants filed suit for specific performance on the basis of agreement to sell dated 25.11.1985 and for permanent injunction, suit was decreed vide judgment and decree dated 3.2.1994. In view of the judgment and decree dated 3.2.1994, sale deed was got executed through Court. Mohinder Singh had executed a Will dated 10.8.1995, registered on 13.11.1995 in favour of the appellants. Death of Mohinder Singh was 7.9.1995. After the death of Mohinder Singh, appellants are in actual possession of khasra No. 32/1. Mohinder Singh, had also executed simple mortgage qua some land for `1,92,000/- with respondent No. 2. Appellants are in possession of the property in dispute and possession is continuous peaceful, un- interrupted, hostile and adverse to the knowledge of two owners and after the expiry of 12 years appellants have become the owners by way of adverse possession. Notice was issued to the respondent but respondents after service did not turn up and they were proceeded against ex parte. After ex parte evidence, suit of the plaintiffs-appellants was dismissed by the trial Court vide judgment dated 10.1.2007 and the judgment of the trial Court was upheld by the learned Ist Appellate Court, vide judgment dated 29.1.2011. Learned counsel for the appellants argued that Mohinder RSA No. 3088 of 2011 (O&M) -3- Singh, was the owner in possession of the property in dispute. Earlier Mohinder Singh was in possession of the property in dispute. He had executed a Will dated 10.8.1995 registered on 13.8.1995 in vavour of the appellants. On the basis of judgment and decree dated 3.9.1995, sale deed was executed in favour of respondent No. 1 but possession of khasra No. 32/1 is with the appellants. Possession is continuous peaceful, un-interrupted, hostile and adverse. Appellants have become owners in possession of the property by way of adverse possession but evidence on file was not properly scrutinized by the Courts' below. I have carefully gone through the file and is of the opinion that both the Courts' below rightly observed that appellants have not become the owners of the property in dispute by way of adverse possession. Appellants are not clear on which date they came in possession of the property in dispute and on which date their possession become adverse to the knowledge of true owners. As per judgment and decree dated 3.2.1994, respondent No. 1 is the owner of property in dispute. Main suit for declaration and permanent injunction was instituted in the month of January, 2001. Jasbir Singh, one of the appellant while appearing as PW-3 stated that his grand father Mohinder Singh had taken a loan from the bank to purchase a tractor. Mortgage deed executed by Mohinder Singh was attested by him. PW-1 Narinder Pal Singh, Field Officer and PW-2 Rawel Singh, Assistant, SBI, Phillaur, officials of the bank stated that Mohinder Singh, had obtained a loan from the bank and mortgage deed was executed. No witness stated a word that respondent No. 1 is the owner of the property in dispute and from a particular date appellants are in actual RSA No. 3088 of 2011 (O&M) -4- possession and possession of the appellants is continuous peaceful, un-interrupted, hostile and adverse to the knowledge of true owners. Ex. P-4 jamabandi for the years 1995-96 shows appellants to be owner in possession of khasra No. 32/1. Note in the remarks column is to the effect that land was mortgaged with bank. Ex. P-8 jamabandi for the years 1995-96 shows that the appellants are owners in possession of the property in dispute whereas Ex. PA jamabandi for the year 1980-81 shows that Mohinder Singh was owner in possession of the property in dispute and similar is the position as per jamabandi for the years 1985-86 and Ex. P-11 for the years 1981-82. On the basis of judgment and decree dated 3.2.1994, sale deed was got executed through the Court on 30.9.1999. Entries of the revenue record are to the effect that earlier Mohinder Singh was in possession of the property in dispute and after that appellants came in possession of the property but in view of the sale deed got executed through Court on 30.9.1999 appellants are not the owners of the property in dispute when the main suit was filed in the month of January, 2001. In view of all discussed above, I am of the opinion that both the Courts' below rightly observed that appellants are not the owners in possession of the property in dispute by way of adverse possession. No substantial question of law is involved. For the reasons recorded above, instant appeal is dismissed. November 9, 2011 ( JORA SINGH ) rishu JUDGE