RSA No.3100 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3100 of 2010 Date of decision 11.08.2010. Sher Singh ...... Appellant. versus Smt.Ishwar Kaur and others ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Vivek Kohli and Yash Mishra, Advocates for the appellant. K.C.PURI, J. This is an appeal directed by defendant/appellant against the judgment dated 12.6.2010 passed by Shri Arun Kumar Single, Additional District Judge, Faridabad vide which the appeal referred by the appellant against the judgment dated 29.7.2008 passed by Mrs. Shashi Bala, Additional Civil Judge (Senior Division) Faridabad, was dismissed. Briefly stated the case of Ishwar Kaur plaintiff-appellant is that she is the owner of House No.57, Plot No.36 comprising in khewat RSA No.3100 of 2010 2 No.344min khatoni No.617 Khasra No1551/36 measuring 1 kanal 12 marlas vide jamabandi for the year 1979-80 situated within the revenue estate of Faridabad. The plaintiff purchased the suit land vide registered sale deed dated 3.9.1979 from the previous owners namely Smt.Naroti Devi widow, Pyare Lal son, Smt. Krishna daughter and Smt. Prem daughter of Puran Chand on payment of Rs.5000/- and in pursuance of aforesaid sale deed, the mutation of sale was sanctioned by the Revenue Officer in favour of the plaintiff on 29.9.1979. The boundaries of the suit land are as follows : East-Road 30', West- Road 30', North-Plot No.37= 75' and South Plot No.35= 75'. The suit property was marked by letters ABCD and shown in red colour in the site plan. It is alleged by the plaintiff that defendant No.1 was employed as Chowkidar by the vendor in 1968 on monthly salary of Rs.60/-. Defendant No.2 is the son of defendant No.1. It is pleaded that the previous owners of the suit land provided a hut to defendant No.1 as shelter against sun, cold and rains, while on duty and after purchase, the plaintiff constructed two other sheds in the suit land. The defendants filed suit No.426 of 1981 for injunction and the same was decreed on 21.9.1983 by the Court of Sub Judge IInd Class, Faridabad. In the said suit, the defendants have pleaded that they have become owners of the suit land on account of adverse possession. This plea of the defendants was answered in the negative and the suit was decided accordingly. During the pendency of that case, the present defendants obtained temporary injunction order against the plaintiff restraining her from dispossessing the defendants from RSA No.3100 of 2010 3 the suit land illegally. In the garb of the aforesaid order, the defendants occupied the other two sheds and in collusion with the HSEB officials, got power connection against the rules and regulations as no electricity connection could be provided in the aforesaid sheds. The plaintiff does not want the defendants to continue in possession of the suit land and asked the defendants to continue in possession of the suit land and asked the defendants several times to hand over the possession of the suit land but they refused to do so and hence the suit. On notice, the defendants filed their written statement and took up the preliminary objections about the locus standi of the plaintiff, res- judicata estoppel and cause of action etc. On merits, it is alleged that the plaintiff is neither owner nor in possession of the suit property. The registered sale deed is false, fictitious and not tenable in law. The mutation is also wrong and has been entered in connivance with the revenue authorities. The defendants are in actual and physical possession of the suit property without hindrance from the plaintiff and all the persons to the exclusion of the plaintiff and they have been in the enjoyment of the property openly to the knowledge of the plaintiff, therefore, the defendants have become owners by way of adverse possession of the suit property. Following issues were framed :- 1. Whether the plaintiff is the owner of the suit property?OPP 1A. Whether the defendants have become the owners by adverse possession ?OPD. 2. Whether the plaintiff is entitled to take possession of the property from the defendants?OPP. RSA No.3100 of 2010 4 3. Whether the plaintiff is estopped from filing the present suit ?OPD. 4. Whether the suit is barred by limitation ?OPD 5. Relief. Plaintiff examined Bhagwan Dass Record Keeper CRR, Faridabad (PW-1), Sube Singh ARC Sub Registrar, Ballabgarh (PW-2), Madan Lal Sachdeva, Advocate (PW-3), Sish Ram ( PW-4), Khajan Singh (PW-5) and closed the evidence after tendering certain documents. In rebuttal defendant examined Sarup Singh (DW-1), Satya Parkash Mittal, Draftsman, (DW-2), Rajender Singh (DW-3), Junesh Juneja (DW-4), Sher SinghDW5, Kumar Pal (DW-6) and Nathi Ram (DW- 7) and closed the evidence after tendering certain documents. After appreciating the same and hearing the learned counsel for the parties, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 29.7.2008. Feeling dissatisfied with the judgment dated 29.7.2008, the defendants preferred appeal before the First Appellate Court. The said appeal was dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 12.6.2010. Still Feeling dissatisfied with the judgments and decrees passed by both the Courts below, the defendant-appellant has preferred the present regular second appeal. The learned counsel for the appellant has submitted that title cannot be decided in a mere suit for permanent injunction. The adverse possession of the defendant/appellant was not admitted in the previous suit RSA No.3100 of 2010 5 but this itself does not prove the title of the plaintiff over the suit property. The principles of res judicata would not apply as the previous suit was merely a suit for injunction and question of title was not directly and substantially in issue in that suit. The plaintiff has failed to prove his possession over the suit property. The decree cannot be passed on the basis of presumption and resumption. There is no conclusive finding by the lower Court regarding the title of the plaintiff over the suit property. The attorney cannot appear on behalf of the plaintiff in respect of the facts which are especially in the knowledge of the plaintiff. Both the Courts below have ignored this fact. I have considered the submission made by counsel for the appellant and have gone through the records of the case. The admitted position on the record is that previously the present defendants filed suit for permanent injunction restraining the present plaintiff from taking forcible possession of the suit property. The appellants in the earlier suit have pleaded that they have become owner of the suit property by way of adverse possession. The plea of the defendants- appellant was not accepted and it was held that they were failed to prove their ownership by way of adverse possession. However, the said suit of the defendant was decreed holding that he can be evicted in due course of law. The plaintiff has proved the sale deed, which confers right of ownership. Sale deed was also produced in the earlier litigation and the same was not specifically denied in the earlier litigation. There is concurrent finding of fact recorded by both the Courts below that the plaintiff is the owner of the suit property and decreed the suit of the plaintiff. That being a finding of RSA No.3100 of 2010 6 fact cannot be assailed in the regular second appeal. It is not on account of previous litigation that present plaintiff has been held owner of the suit property. No doubt, in an injunction suit title is not required to be proved but where a specific issue regarding adverse possession has been raised and that plea is decided against defendant, in that case he cannot again take the plea of adverse possession in the present suit. Learned counsel for the appellant is also fair enough to concede that the appellant cannot argue on issue 1A again in the present suit as the matter was substantially in issue in the earlier suit and that has been decided against the defendant/appellant in the earlier suit. So from the above discussion, I have no hesitation in holding that no question of law much-less the substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 11th , 2010 sv