Regular Second Appeal No. 2595 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2595 of 2007 Date of Order: 09.07.2009 Ram Sarun and others ....Appellants Versus Amar Singh and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. C.B.Goel,Advocate for the appellants. RAJIVE BHALLA, J (Oral). The appellants challenge judgments and decrees dated 27.01.2001 and 20.05.2005, passed by the Additional Civil Judge (Senior Division), Kaithal and the Additional District Judge, Kaithal, dismissing their suit and their appeal, respectively. The plaintiffs-appellants, filed a suit for declaration that as they were in open, peaceful and hostile cultivating possession of the suit land for the last more than 12 years, they have perfected their title by adverse possession. As a consequential relief they prayed for grant of a permanent injunction. The appellants pleaded that Devtia son of Sadhu Ram, predecessor-in-interest of the respondents mortgaged the suit property with Ran Singh and Biru sons of Harjash, their forefathers, in June, 1898. As the suit land has not been redeemed, they have become owners in possession by adverse possession. In opposition to the averments in the plaint, respondents no.19 and 21 filed a written statement denying the existence of any mortgage and in turn asserted that parties are co-sharers in possession of the suit land. The plea that appellants had become owners by adverse possession was specifically Regular Second Appeal No. 2595 of 2007 -2- denied. Respondent No.29 filed a separate written statement, in essence raising similar pleas. On the basis of the pleadings, the trial court framed the following issues and called upon the parties to lead evidence. “1. Whether Devtia son of Sadha Ram who was predecessor in interest of the defendants had mortgaged the suit property to Ran Singh and Beeru son of Harjesh, forefathers of the plaintiffs in June, 1889 and same has not been redeemed by the defendants or their predecessors in interest and accordingly now plaintiffs have become owners in possession of the suit property by way of prescription?OPP 2. In alternative whether plaintiffs have perfected their title by way of adverse possession?OPP 3. Whether defendants threaten to interfere into the possession of plaintiffs illegally and forcibly, if so to what effect?OPP 4. Whether suit is bad for mis-joinder and non-joinder of necessary parties?OPD 5. Whether suit is time barred?OPD 6. Whether plaintiffs are not successors in interest of Ram Singh and Beeru?OPD 7. Whether parties to the suit are co-sharers in possession of the suit land?OPD 8. Whether defendants are entitled to special costs u/s 35A CPC?OPD. 9. Relief.” Regular Second Appeal No. 2595 of 2007 -3- After considering the pleadings, the evidence adduced and the arguments addressed, the trial court held that the appellants had failed to prove the existence of a mortgage, and therefore, their plea of ownership by the efflux of time or by adverse possession. The trial court also held that the appellants had failed to prove that Devtia son of Sadhu Ram was predecessor in interest of the respondents as the pedigree tables adduced in evidence do not establish this fact. It was also held that as per the revenue record the appellants and the respondents as co-sharers. In view of these findings, the trial court dismissed the suit. Aggrieved by the aforementioned judgment and decree, the appellants filed an appeal. The Additional District Judge, Kaithal, dismissed the appeal and affirmed the findings recorded by the trial court. Counsel for the appellants submits that the courts below have failed to consider the documents Ex.P3 and P15, which clearly establish that the appellants and the respondents are successors in interest of the original mortgagees and mortgagors. It is submitted that as the appellants have successfully established that Devtia son of Sadhu Ram, the original mortgager was the predecessor in interest of the respondents the courts below have committed an error of law in holding to the contrary. It is further argued that as defendants no. 19 and 21 admit that the appellants are in possession, the courts below should have decided the plea of adverse possession in favour of the appellants or at least granted an injunction protecting their possession. Counsel for the appellants has framed the following questions of law:- "i) Contesting defendants 19 and 21 have clearly admitted the appellants to be in possession, but as a co-sharer. There is no finding that the appellants are in possession as co-sharer. Once that is so, whether the courts below were justified in recording finding under Regular Second Appeal No. 2595 of 2007 -4- issues No.2 and 3 against the appellants? ii) Whether the Courts below were legally justified by not placing reliance on documents P/3 and P/15 for recording finding in favour of the appellants that they have proved that they are successors in interest of the mortgagees? iii) Whether on the facts and circumstances of the case and the averments made above the judgments and decrees of the courts below are sustainable in law?" I have heard counsel for the appellants and express my inability to accede to his arguments. I find no reason whether in law or in fact to reverse these findings of fact or to hold that the substantial questions of law, as framed by counsel for the appellants arise for consideration. The revenue entries and the pedigree tables do not establish that Devita, the original mortgagor was predecessors-in-interest of the respondents. The first question of law, arises form an argument that as defendants no. 19 and 21 have admitted the appellants' possession, the courts below should have accepted their plea of ownership by adverse possession. The revenue entries record the appellants and the respondents as co-sharers. In the absence of any cogent evidence to establish ouster of the respondents title as co-sharer, the plea of adverse possession and the prayer for grant of an injunction were rightly declined and, therefore, issues no.2 and 3 were rightly decided against the appellants. The second question of law is a question of fact. The courts below have returned concurrent findings of fact that the appellants have failed to establish that the original mortgagor, Devita, was predecessor in interest of the respondents. It has also been held that the appellants have failed to establish the factum of mortgage, namely, in whose favour the mortgage Regular Second Appeal No. 2595 of 2007 -5- was created, the period of the mortgage and the amount involved. The third question of law does not arises as no such circumstance has been urged as would render the impugned judgements unsustainable in law. As the impugned judgments do not suffer from any error of law or of fact and as no substantial question of law arises for consideration, the appeal is dismissed. July 09, 2009 (RAJIVE BHALLA) nt JUDGE