RSA No.654 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.654 of 1984 Date of Decision: 01.07.2010. Naval Kishore and others .……Appellants Versus Dev Raj and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. G. S. Jaswal, Advocate for the appellants. Mr. K. S. Cheema, Advocate for the respondents. L. N. MITTAL, J (ORAL) This is second appeal by defendant No.2 and legal representatives of defendant No.1. Suit was filed by respondents for vacant possession of 1 Kanal 13 marlas land in suit comprised of khasra No.1426 alleging that plaintiffs are owners of the suit land and defendants whose land adjoins the suit land have encroached upon the suit land about 4 ½ years before filing of the suit and have constructed a Verandah on part of the suit land without any right, title or interest. The defendants are in unauthorized possession of the suit land as trespassers. The plaintiffs, therefore, sought relief for possession of the suit land after removal of super-structures raised by the defendants. The defendants in their written statement raised various preliminary objections and denied the plaint allegations. It was RSA No.654 of 1984 -2- pleaded that plaintiffs are not owners of the suit land and rather defendants are owners in possession thereof. It was also alleged that defendants' possession over the suit property is hostile and adverse to the title of the plaintiffs. The defendants are in adverse possession of the suit land for more than 60/70 years and have, therefore, become owners of the suit land by adverse possession. Plaintiffs filed replication to controvert the stand taken by the defendants. Following issues were framed on the pleadings of the parties:- “1. Whether the suit is properly valued for the purpose of Court fee and jurisdiction . If not to what effect? OPP. 2. Whether the suit is time barred? OPD 3. Whether the plaintiffs are the joint owners of the property? OPP 4. Whether the defendants have taken illegal possession of the suit land? OPP 5. Whether the defendants have become owners of the suit land by way of adverse possession? OPD 6. Relief.” Learned Sub-Judge Ist Class, Dasuya vide judgment and decree dated 27.09.1982 decided issue No.1 in favour of the plaintiffs, issue No.2 against the defendants, issue No.3 in favour of the plaintiffs, issue No.4 against the plaintiffs and issue No.5 against the defendants and consequently dismissed the suit. However, first appeal preferred by the plaintiffs has been allowed by learned District Judge, Hoshiarpur vide judgment and decree dated 05.12.1983 by reversing the finding of the trial Court on issue No.4 and suit stands decreed. Feeling aggrieved, the instant second RSA No.654 of 1984 -3- appeal has been preferred by legal representatives of defendant No.1 and by defendant No.2. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that reasons recorded by the trial Court have not been discussed by the lower appellate Court and, therefore, impugned judgment of the lower appellate Court is illegal and unsustainable. The contention cannot be accepted. The trial Court observed that the plaintiffs did not seek demarcation of khasra No.1426 and, therefore, it is not proved as to how much part of said khasra No.1426 has been encroached upon by the defendants. This approach of the trial Court is gravely erroneous and unsustainable and has been rightly set aside by the lower appellate Court because the plaintiffs in the plaint specifically plead that the suit land is comprised of khasra No.1426 and the defendants in the written statement did not even plead that suit land is not comprised of khasra No.1426. Consequently, no demarcation of khasra No.1426 was required to be obtained. The plaintiffs' case is that they are owners of the suit land comprised of khasra No.1426 whereas defendants' version is that they have become owners of the suit land by adverse possession. It, therefore, remain undisputed that suit land is comprised of khasra No.1426. It is also undisputed that defendants are in possession of the suit land. However, plaintiffs are proved to be owners of the suit land from the documentary evidence including revenue record placed on the file. Consequently, suit of the plaintiffs has been rightly decreed by the lower appellate Court because plaintiffs are owners of the suit land RSA No.654 of 1984 -4- and defendants are in unauthorized possession thereof. Version of the defendants that they are in possession of the suit land for more than 60/70 years before filing of the suit and have, therefore, become owners of the suit land by adverse possession, is not substantiated by cogent evidence. Oral evidence in this regard is not sufficient to establish ownership of the defendants over the suit land by adverse possession. On the other hand, finding of the lower appellate Court on this aspect is finding of fact which cannot be interfered with in second appeal because the said finding is based on proper appreciation of evidence and is not shown to be perverse of illegal in any manner. Learned counsel for the appellants also contended that during pendency of the instant appeal, Shiv Kumar son of respondent No.1-Dev Raj has sold 3 marlas land to Parveen Kumari daughter-in- law of appellant No.4/defendant No.2 vide sale deed dated 11.01.1996 Annexure A-1. Similarly Suresh Chander and Rattan Chand sons of respondent No.12 -Bhola Ram have sold 5 ½ marlas land to said Parveen Kumari vide sale deed dated 13.06.1996 Annexure A-2. Ravinder Kumar and Subhash Chander sons of respondent No.1-Dev Raj have also sold 3 marlas land to said Parveen Kumari vide sale deed dated 11.07.2005 Annexure A-4. Krishan Dutt and Onkar Chand sons of respondent No.11-Hari Dev have sold 11 marlas land to one Jagdish Chand vide sale deed dated 27.03.1997 Annexure A-3. It was contended by learned counsel for the appellants that in view of sale deeds Annexures A-1, A-2 and A- 4, the appellants have become co-sharers in the suit land and, therefore, plaintiffs as co-sharers are not entitled to seek possession RSA No.654 of 1984 -5- of the suit land from the appellants. The contention is completely misconceived and untenable. Sale deeds Annexures A-1, A-2 and A-4 are in favour of daughter-in-law appellant No.4 and not in favour of any of the appellants and consequently the appellants have not become cosharers for the suit land. On the contrary, these sale deeds would show that the plaintiffs were owners of the suit land. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed. ( L. N. MITTAL ) JUDGE 01.07.2010. A. Kaundal