Regular Second Appeal No. 1634 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1634 of 2009 Date of decision : April 04, 2011 Balkar Singh ....Appellant versus Nihal Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. GS Nagra, Advocate, for the appellant Mr. SK Garg, Advocate, for respondents no. 1 and 2 L.N. Mittal, J. (Oral) Balkar Singh who is one of the legal representatives of defendant no. 5 Bhan Singh since deceased has filed the instant second appeal, having lost in both the courts below. Respondent nos. 1 and 2 Ramesh Kumar and his wife Sita Rani (plaintiffs) filed suit against Thakur Singh etc. five defendants i.e. proforma respondents no. 10, 3 to 5 and Bhan Singh since deceased who is represented by appellant and proforma respondents no. 6 to 9. The plaintiffs alleged that they are owners of the suit land measuring 181 kanals 1 marla. During days of terrorism in Punjab in the year 1989, defendants Regular Second Appeal No. 1634 of 2009 -2- without any right, title or interest in the suit land forcibly dispossessed the plaintiffs from the suit land. Accordingly, plaintiffs sought possession of the suit land along with mesne profits thereof. Defendants broadly denied the plaint allegations. It was denied that the plaintiffs are owners of the suit land. Defendants pleaded that they are in possession of the suit land for 30/35 years and have made it cultivable by reclaiming it. Defendants claimed to be in open, hostile and adverse possession of the suit land. Defendants also filed counter-claim that they have become owners of the suit land by adverse possession. Various other pleas were also raised. Plaintiffs by filing replication controverted the stand of the defendants including their counter claim and reiterated the plaint averments. Learned Additional Civil Judge (Senior Division), Ajnala vide judgment and decree dated 8.4.2006 decreed the plaintiffs' suit for possession and also passed preliminary decree for mesne profits and dismissed the counter claim of the defendants. First appeal preferred by Thakur Singh defendant no. 1 and Balkar Singh one of the legal representatives of defendant no. 5 has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 3.10.2008. Feeling aggrieved, only Balkar Singh one of the legal representatives of defendant no. 5 has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Regular Second Appeal No. 1634 of 2009 -3- Revenue record depicted that plaintiffs along with Paramjit Kumar and Subhash Chander (brothers of plaintiff no. 1) are owners of the suit land. Subhash Chander has since died and now his legal representatives are owners of his share. It is, thus, proved from consistent revenue record produced in evidence that plaintiffs, though not proved to be exclusive owners of the suit land, are co-owners thereof. The plaintiffs claimed to have purchased share of Paramjit Kumar and Subhash Chander. However, there is no evidence to this effect except that sale of Subhash Chander in favour of Durga Das father of plaintiff no. 1 was recorded in revenue record. Plaintiffs claimed to have inherited said share of Durga Das. Be that as it may, even if sale of share of Paramjit Kumar and Subhash Chander is held to be not proved, even then the plaintiffs are co- owners in their own right. Defendants are strangers to the suit land and are in possession thereof as tres-passers. Consequently, the plaintiffs are entitled to recover possession of the suit land from the defendants and are also entitled to recover mesne profits. Suit of the plaintiffs has, therefore, been rightly decreed by the courts below. Concurrent finding recorded by both the courts below in favour of plaintiffs is based on proper appreciation of evidence and does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second appeal. Learned counsel for the appellant contended that Muslims who migrated to Pakistan at the time of partition of the country, were owners of the suit land and had mortgaged the suit land with local persons and then Regular Second Appeal No. 1634 of 2009 -4- Government of Punjab became owner and plaintiffs cannot be said to be owners of the suit land. Learned counsel for the appellant pointed out that plaintiffs filed suit against State Government and obtained decree that they have become owners but the civil court has no jurisdiction to pass any such decree. The aforesaid contention has been noted simply to be rejected being completely frivolous, misconceived, meritless and beyond pleadings and evidence on record. On the contrary, civil court decree in favour of the plaintiffs against the State of Punjab has not been challenged in the instant suit or in any other proceedings. The aforesaid contention would rather depict that the plaintiffs are owners of the suit land in view of civil court decree passed in their favour against the State Government. In addition to the aforesaid, defendants did not claim any right, title or interest in the suit land except that they claimed to have become owners thereof by adverse possession. However, defendants have miserably failed to substantiate their said plea. Moreover, counter-claim to seek the said relief is in the nature of suit. However, a person in adverse possession cannot seek declaration that he has become owner of the suit property by adverse possession because adverse possession can be pleaded only as defence. Consequently, counter-claim by the defendants that they have become owners of the suit land is not even maintainable. This view finds support from two judgments of this Court in Bhim Singh & Ors. vs. Zile Singh & Ors., 2006(3) Civil Court Cases 479 (P&H) and Dewaki & Ors vs. Dayawanti & Ors., 2006(3) Civil Court Cases 615 (P&H). For the reasons aforesaid, I find that the instant second appeal Regular Second Appeal No. 1634 of 2009 -5- is not only meritless but is also completely frivolous. Such frivolous litigation deserves to be discouraged and curbed with strong hand by imposing exemplary costs. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed with exemplary costs of Rs 20,000/-. ( L.N. Mittal ) April 04, 2011 Judge 'dalbir'