R. S. A. No. 288 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 288 of 2010 Date of Decision : January 25, 2011 Dhan Singh and others .... Appellants Vs. Sunder Devi and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Brinjender Kaushik, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Plaintiffs, who were successful in the trial court, but have been non-suited by the lower appellate court, are in second appeal. Plaintiffs filed suit against Pritam Singh – defendant no.1/respondent no.5 herein and Maya Chand – defendant no.2 (since deceased and represented by respondents no.1 to 4 herein, as his legal heirs) alleging that plaintiffs' father Sonu purchased the entire land of Karta (father of defendant no.1) vide sale deed dated 19.05.1958 and thereafter, Karta left the village. Since then, plaintiffs are in possession of the entire property of Karta including the suit land. The suit land is 06 marlas, being R. S. A. No. 288 of 2010 2 half share of 12 marlas comprised of khasra no.8/5 (0-2) and killa no.283 (0-10). However, inadvertently, the suit land was not mentioned in the aforesaid sale deed, but plaintiffs are in possession of the suit land also, since the date of sale deed i.e. 19.05.1958. The suit land was also mentioned in mutation no.769 sanctioned on the basis of sale deed in favour of plaintiffs' father. In the alternative, plaintiffs claimed to have become owners of the suit land by adverse possession. Defendant no.1 filed Suit No.228 of 1996/1998 against the plaintiffs. During pendency of said suit, defendants succeeded in getting mutation nos.2424 and 2425 sanctioned. On coming to know of the same, plaintiffs applied for amendment of written statement in the said suit, but defendant no.1, who was plaintiff in that suit, instead of contesting the amendment application, withdrew the suit itself. During pendency of the instant suit, defendant no.1 illegally sold the suit land to defendant no.2 Maya Chand. On these averments, plaintiffs sought declaration that they are joint owners in possession of the suit land and mutation nos. 2424 and 2425 concerning the suit land and the sale deed executed by defendant no.1 in favour of defendant no.2 regarding the suit land and subsequent revenue entries are illegal and null and void. Plaintiffs also claimed consequential relief of permanent injunction. Defendant no.1 Pritam Singh was proceeded ex-parte. Defendant no.2 Maya Chand contested the suit. Plaint R. S. A. No. 288 of 2010 3 allegations were broadly denied. It was pleaded that Karta never sold the suit land to plaintiffs nor the same is subject matter of sale deed dated 19.05.1958. Plaintiffs never came in possession of the suit land, which remained in possession of defendant no.2. Accordingly, defendant no.2 became owner of the suit land by adverse possession. He has also purchased some part of the suit land vide sale deed dated 02.12.1999. Mutation nos. 2424 and 2425 have been rightly sanctioned. Sale deed dated 02.12.1999 by defendant no.1 in favour of defendant no.2 is also legal and valid. Defendant no.2 has constructed boundary wall of the suit land. Plaintiffs no.1 and 2 are not even residing in the village, but are residing in other villages. Plaintiffs no.3 to 5 are residing in the fields. Various other pleas were also raised. Learned Additional Senior Judge (Senior Division), Kurukshetra, vide judgment and decree dated 21.03.2006, decreed the plaintiffs' suit holding them to have become owners of the suit land by adverse possession. However, first appeal preferred by legal representatives of defendant no.2 Maya Chand has been allowed by learned District Judge, Kurukshetra, vide judgment and decree dated 06.11.2008 and thereby, suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the R. S. A. No. 288 of 2010 4 case file. Learned counsel for the appellants contended that vide sale deed dated 19.05.1958, plaintiffs' father purchased 139 kanals 19 marlas land including the suit land, but inadvertently in the sale deed, sale of 139 kanals 13 marlas land was recorded and the suit land measuring 06 marlas was omitted. Much emphasis was laid on mutation no.769 sanctioned on the basis of sale deed. The said mutation was sanctioned regarding 139 kanals 19 marlas land including the suit land. I have carefully considered the aforesaid contentions, but find no merit therein. The sale deed mentions that vendor Karta sold 139 kanals 07 marlas land described in the sale deed and also 06 marlas land being half share of 12 marlas land of khasra no.8/5 and killa no.283. Thus, out of 12 marlas land in question, Karta specifically sold half share measuring 06 marlas and retained the remaining half share measuring 06 marals with him. Consequently, it cannot be said that the suit land measuring 06 marlas was not inadvertently mentioned in the sale deed. On the contrary, it was specifically mentioned in the sale deed that Karta was selling only half share of 12 marlas land in question. This specific recital in the sale deed rules out inadvertent omission of the remaining half share of 12 marlas land in question in the sale deed. The plaintiffs also never took any step for R. S. A. No. 288 of 2010 5 rectification of alleged omission in the sale deed. Consequently, on the basis of sale deed, the plaintiffs' father purchased 139 kanals 13 marlas land excluding the suit land. The plaintiffs are thus not owners of the suit land. Even the trial court, which decreed the suit, recorded finding to this effect. Sanction of mutation no.769 regarding suit land along with other land would not confer title on the plaintiffs regarding the suit land because mutation is not document of title. Sale deed is the document of title and sale deed relied on by the plaintiffs themselves depicts that they are not owners of the suit land. It is thus manifest that in the mutation, suit land was inadvertently mentioned. Defendant no.2 has purchased 05 marlas land (half share of killa no.283 measuring 10 marlas) out of the suit land, vide sale deed dated 02.12.1999. Consequently, he has become owner thereof because defendant no.1, being legal heir of his father Karta, sold the same to defendant no.2. Learned counsel for the appellants contended that appellants/plaintiffs have become owners of the suit land by adverse possession. This plea of the plaintiffs was accepted by the trial court. However, this plea has been rightly negatived by the lower appellate court. There is oral statement of plaintiff no.4 Jagdish Chander along with statement of another witness Leela Ram. The said statements are not sufficient to prove acquisition of title by plaintiffs by adverse possession R. S. A. No. 288 of 2010 6 over the suit land. Revenue entries were recorded in their favour on the basis of mutation, which inadvertently included the suit land. Consequently, it is not proved that plaintiffs were in possession much less adverse possession of the suit land and have become its owners. On the contrary, vacant land is deemed to be in possession of the owner. Suit land was lying vacant and for this reason also, plaintiffs cannot be said to be in adverse possession thereof. Matter may also be examined from another angle. Plaintiffs are co-sharers in 12 marlas land in question to the extent of half share. Consequently, without proving ouster of the other co-sharer – previously Karta, then his son Pritam Singh – defendant no.1 and now, Maya Chand – defendant no.2, plaintiffs cannot be said to have acquired title over the suit land by adverse possession. Ouster of the co-sharer has not even been pleaded, much less proved by the plaintiffs. In addition to the aforesaid, suit seeking declaration that plaintiffs have become owners by way of adverse possession is not maintainable. In this view, I am supported by two judgments of this Court in the cases of Bhim Singh and others vs. Zile Singh and others reported as 2006 (3) Civil Court Cases 479 (P&H) and Dewaki and others Dayawanti and others reported as 2006 (3) Civil Court Cases 615 (P&H). Adverse possession can be set up as defence by defendant, but R. S. A. No. 288 of 2010 7 plaintiff cannot file suit to seek declaration of ownership on the basis of adverse possession. For this reason also, the plaintiffs have been rightly non-suited by the lower appellate court. For the reasons aforesaid, 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. Accordingly, the appeal is dismissed in limine. January 25, 2011 ( L. N. MITTAL ) monika JUDGE