R.S.A No. 3870 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3870 of 2009(O&M) Date of decision : July 12 , 2010 Jogoinder Singh ...... Appellant versus Gurudwara Sahib Milk Sukhi, Tehsil Jagadhri, Distt. Yamunanagar ...... Respondent *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. R.S. Mamli, Advocate for the appellant. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellant for declaration that he has become owner of the land in dispute. The grounds taken by the appellant were that firstly, the gift deed in favour of the respondents was a result of fraud and secondly, that he had become owner by way of adverse possession. The following questions have been proposed:- i) Whether the judgments and decrees passed by the Courts R.S.A No. 3870 of 2009(O&M) 2 below are based on misreading the facts of the case and evidence on the record? ii)Whether the appellant has become the owner of the land by way of adverse possession because he was in possession of the land as owner? iii)Whether the gift deed is not done by the donee is admissible and is that a valid gift? iv)Whether the judgments and decrees passed by the Courts below are based on conjectures and surmises and same are liable to be set aside? It would be seen that questions No.(i), (iii) and (iv) are pure questions of fact. As regards the gift deed both the Courts have concurrently found as a fact that the gift deed has been validly executed. Learned counsel has not been able to persuade me that the findings recorded by the Courts below are either based on no evidence or on such perverse misreading of evidence so as to be liable for interference under Section 100 CPC. Therefore, answer to questions No.(i), (iii) and (iv) would go against the appellant. As regards question No. (ii) , it is now beyond any dispute that the the plea of adverse possession is a plea in defence and cannot be used by the plaintiff. In this connection reference may be made to a decision of this Court in RSA No.998 of 2007, Gurtej Singh vs Zora Singh and others, decided on November 17, 2008, where in it was held as follows :- “.......In the case of Bondar Singh and others (supra), no doubt the Hon'ble Supreme Court allowed the suit filed by a person claiming to be in adverse possession, yet it is R.S.A No. 3870 of 2009(O&M) 3 to be seen from this judgment that no plea was raised at all on behalf of the owners that a suit for claiming title on the basis of adverse possession did not lie. This would be clear from the fact that in para 3 of the judgment in Bondar Singh and others (supra), the Hon'ble Supreme Court held as follows :- `3. The main question for consideration in the present suit is as to whether the plaintiffs were in hostile continuous possession of the suit lands by virtue of which they had perfected their title to the land by adverse possession. .....' Even in the case of Girja Kumar and others' case (supra), no plea was taken regarding the maintainability of the suit. The judgment of the Delhi High Court in Manmohan Service Station's case (supra) does deal with this question to hold that such a suit is maintainable. I, however, find that the judgment of this Court in Bhim Singh and others vs Zile Singh and others, 2006(3) RCR (Civil) 97 considers the judgment of the Delhi High Court and, relying upon an earlier judgment of the Delhi High Court [which was not referred to in Manmohan Service Station's case (supra)], distinguished the judgment in Manmohan Service Station's case (supra) and held that such a suit is not maintainable. I am in respectful agreement with the view taken in the case of Bhim Singh and others' case (supra) and consequently hold that the suit is not maintainable. This appeal is, thus, dismissed with no order as to costs.” R.S.A No. 3870 of 2009(O&M) 4 In view of the aforesaid pronunciation of law question No.(ii) is also answered against the appellant. Consequently holding the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. Since the main case has been decided, the Civil Misc. Application, if any, also stands disposed of. ( AJAY TEWARI ) July 12 , 2010. JUDGE sunita