RSA No.1809 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1809 of 2008(O&M) Date of decision: 18.8.2010 Dharampal ......Appellant(s) Versus Smt. Dhanni Devi and other ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Mani Ram Verma, Advocate for the appellant. Mr. Amit Kumar Goyal, Advocate for the respondents. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that he was owner in possession of the suit property on the basis of agreement dated 9.2.1975 executed by defendant No.2 in his favour and in the alternative, he had become owner by way of adverse possession since 9.2.1975 being in possession of the house and further suit for permanent injunction restraining the respondents from interfering in his peaceful possession over the suit property, was dismissed. As per the averments made in the suit, the appellant averred that previously defendant No.2 Nanhti (later on defendant No.2 was given up) was owner in possession of the suit property. She executed an agreement to sell on 9.2.1975 in his favour for a sum of Rs.10,000/- and promised to get the sale deed executed in his favour. Thereafter, the plaintiff constructed three rooms, a cattle shed and boundary wall and started residing therein. He also got installed an electric meter in his name and was paying electricity bills since 1979-80. It was further averred that RSA No.1809 of 2008(O&M) 2 the suit property was in his possession which was to the knowledge of the defendants since 1975 and further that the said possession was open, peaceful and without any interruption. It was further averred that the defendants tried to interfere in his possession on 28.4.1995 and tried to dispossess him forcibly but their act was resisted with the intervention of the respectables of the village. He requested the defendants to admit his claim. However, the defendants refused to accede to his request, which necessitated him to file the instant suit. Upon notice, defendant No.1 Parbhati (predecessor-in-interest of the respondents) filed written statement as well as counter claim. Several preliminary objections were raised. It was averred that the plaintiff had forged and fabricated the alleged agreement dated 9.2.1975. It was further pleaded that the construction was raised by him and the possession of the house was handed over to the plaintiff in the year 1990 for taking care of the same and hence, there was no question of any adverse possession. In counter claim, defendant No.1 submitted that two rooms were constructed by him over the suit property. He was working at Ganganagar and since he was having faith in the plaintiff, he handed over the possession of two rooms to the plaintiff in the year 1990 for taking care of the same, being a near relative. He had requested the plaintiff to vacate the house many a times but the plaintiff denied to vacate it. It was claimed that being owner of the house, defendant No.1 was entitled to get possession and thus, it was prayed that a decree for possession in his favour be passed. The plaintiff vide his statement dated 10.1.1996 gave up defendant No.2 Smt. Nanhti as she had expired. Reply to the counter claim was filed by the plaintiff wherein he reiterated his stand and prayed for dismissal of the counter claim. RSA No.1809 of 2008(O&M) 3 From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is owner in possession of the house in dispute by virtue of agreement dated 9.2.1975 as executed by defendant No.2 in his favour or in the alternative, he is owner of the above said house by way of adverse possession since 9.2.1975, as alleged? OPP 2. Whether the defendants are liable to be restrained from alienating the possession of the plaintiff over the house in dispute as alleged? OPP 3. Whether the defendant is entitled to the possession of the house in dispute from the plaintiff being the owner of the same, as alleged, in the counter claim? OPD 4. Whether the plaintiff has no locus standi to file this suit? OPD 5. Whether the plaintiff is estopped by his own act and conduct from fling this suit? OPD 6 Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is bad for mis-joinder of parties? 8. Whether the plaintiff has not come to the court with clean hands, if so its effect? OPD 9. Whether the suit is time barred? OPD 10. Relief.” After hearing both the parties and on appraisal of evidence on record, the trial Court decided issues No.1 to 3 against the plaintiffs, while RSA No.1809 of 2008(O&M) 4 issues No.4 to 8 were decided against the defendants. On the basis of the findings on various issues and on ultimate analysis, the suit was dismissed with costs and counter claim of defendant No.1 was decreed to the effect that he was entitled to possession of the house in dispute. Not satisfied from the judgment and decree of the trial Court, defendant No.1 filed an appeal before the Lower Appellate Court . On reappreciation of evidence, the Lower Appellate Court while upholding the findings of the trial Court recorded a finding of fact that revenue record indicates that defendant-Parbhati was owner in possession of the suit property. It was also concluded that the appellant has failed to substantiate his claim regarding adverse possession whereas from the revenue record Ex.D-2 to Ex.D-10, it was apparent that the defendant was depicted as owner in possession of the suit property and the plaintiff failed to explain as to when his possession became open and hostile to its true owner and he failed to plead the necessary ingredients of plea of adverse possession. It was further observed that the appellant also failed to prove that he had become owner in possession of the suit property on the basis of alleged agreement to sell dated 9.2.1975 as document Ex.D-1 was apparently a fabricated document. Still not satisfied, the appellant has approached this Court by way of instant appeal. Learned counsel for the appellant has vehemently argued that from the writing Ex.P-8 it is indicated that Nanhati widow of Harlal sold the suit property to the plaintiff for a sum of Rs.10,000/-. The aforesaid Bahi writing Ex.P-8 contains thumb impression of Phool and Nanhti and the same is signed by the plaintiff. The contention of the learned counsel for the appellant before this Court is that the Courts below have erred at law while decreeing the RSA No.1809 of 2008(O&M) 5 suit of the plaintiff as the case set up by the appellant is that he had become the owner of the suit property on the basis of purchase of the suit land which is reflected vide Ex.P-8 i.e Bahi entry and in any case, even if the aforesaid entry cannot be relied upon for the purpose of proving the sale in his favour, still on the basis of the aforesaid Bahi entry, he is entitled to protect his possession and that Bahi entry can be read into evidence for the collateral purpose of showing the possession of the appellant. Learned counsel has relied upon a judgment reported as Labh Kaur v. Harbans Singh and others 1999 (1) PLR 737 . I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The argument is noticed only to be rejected. Both the Courts below on appreciation of evidence have recorded a finding of fact that neither the appellant could prove the purchase of suit land nor he could prove that he had become owner in possession by way of adverse possession. Simply because he is in possession will not make him entitled to retain the possession. There is no dispute with regard to the proposition of law as canvassed in the aforesaid judgment in Labh Kaur's case (supra), however, the same is not applicable in the facts of the case. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. August 18, 2010 (RAKESH KUMAR GARG) ps JUDGE