R. S. A. No. 2645 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2645 of 2010 Date of Decision : February 24, 2011 Ram Kishan .... Appellant Vs. Smt. Rukma and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. N. S. Shekhawat, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Ram Kishan, having failed in both the courts below, is in second appeal. Daya Nand – defendant no.11 was owner of the suit land measuring 83 kanals 05 marlas. Plaintiff's father Sanwalia and said Daya Nand were born out of the same mother, but different fathers and they were thus uterine brothers. Daya Nand left the village 40 years before filing of the suit and was working at Simla at the time of filing of the suit. Before leaving the village, Daya Nand gave the suit land to plaintiff's father in family arrangement/mutual partition. Possession of the suit land was also R. S. A. No. 2645 of 2010 2 given to plaintiff's father, who continued to cultivate the suit land. After his death, the plaintiff has been cultivating the suit land as owner and is in actual possession of the suit land. Defendants have no right, title or interest in the suit land, but defendants no.1 to 4 have got entered mutation in their favour by alleging that defendant no.11 was missing, although in fact, defendant no.11 was very much alive and residing in Simla. The plaintiff accordingly sought declaration that he is owner in possession of the suit land. The plaintiff, in the alternative, also claimed to have become owner of the suit land by adverse possession. Ancillary reliefs were also claimed. Suit was resisted by different defendants on various grounds. One Jagdish Rai Sharma also filed another suit relating to the suit land. Both the suits were dismissed by learned Additional Civil Judge (Senior Division), Charkhi Dadri, vide detailed common judgment and decrees dated 15.09.2005. Plaintiffs of both the suits preferred first appeals, but both the said first appeals have been dismissed by learned Additional District Judge, Bhiwani, vide detailed common judgment and decrees dated 26.08.2009. Feeling aggrieved, plaintiff Ram Kishan has filed the instant second appeal arising out of the suit instituted by him. I have heard learned counsel for the appellant and perused the case file. Whole claim of the appellant is based on alleged family settlement, but no cogent evidence has been led to prove the same. Oral R. S. A. No. 2645 of 2010 3 evidence led by the plaintiff is not sufficient to establish ownership of the plaintiff or his father over 83 kanals 05 marlas land in suit. No documentary evidence has been led to depict that the suit land was given by Daya Nand – defendant no.11 (since deceased) to plaintiff's father in family settlement or mutual partition. Consequently, concurrent finding recorded by the courts below against the plaintiff-appellant in this regard is fully justified. Courts below have recorded very detailed reasons to non-suit the plaintiff. In addition to it, it may be added that defendant no.11 was absolute owner of the suit land and therefore, he could not have transferred its ownership to plaintiff's father without registered deed. Plaintiff's claim of acquiring ownership of the suit land by adverse possession also cannot be accepted because the plaintiff himself claimed permissive possession on the basis of alleged family settlement. Secondly, plaintiff cannot seek declaration of acquiring ownership by adverse possession because adverse possession can be set up only as defence by a defendant. In this view, I am supported by two judgments of this Court namely Bhim Singh and others vs. Zile Singh and others reported as 2006 (3) Civil Court Cases 479 (P&H) and Dewaki and others vs. Dayawanti and others reported as 2006 (3) Civil Court Cases 615 (P&H). It is thus apparent that the instant second appeal has no merit. Concurrent finding recorded by the courts below against the plaintiff-appellant is justified by the evidence on record R. S. A. No. 2645 of 2010 4 and is supported by very detailed reasons recorded by the courts below. The said finding is now shown to be perverse or illegal in any manner nor based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. February 24, 2011 ( L. N. MITTAL ) monika JUDGE