RSA No.415 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.415 of 2009(O & M) Date of Decision:27.07.2010 Rajesh Dhiman .... appellant Versus Parkash Kaur .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Vijay Sharma,Advocate for the appellant Mr.R.K.Shukla, Advocate for the respondent **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit for mandatory injunction filed by the plaintiff-respondent directing appellant to handover the vacant possession of the suit property, was decreed. Briefly stated, the facts as averred in the plaint are that plaintiff-respondent purchased the suit property vide registered sale deed dated 25.04.1975 and thereafter constructed a house thereupon. The appellant, who is son of the respondent requested her to grant permission to live in a portion of the suit house as detailed and described in the headnote of the plaint. On his request, respondent allowed the appellant to reside in the portion in question. However, on becoming his behavior towards plaintiff-respondent disrespectful, the licence was revoked and the RSA No.415 of 2009(O & M) 2 appellant was requested to handover the vacant possession of the house in dispute to her but he did not pay any heed. Even a legal notice issued to the appellant in this regard failed to evoke any response. Hence, this suit. Upon notice, appellant filed written statement raising various preliminary objections. On merits, it was admitted that plaintiff-respondent purchased the plot measuring 200 square yards. However, it was denied that she raised construction of a house on the said plot. According to him, the portion marked as ABCDEF in the site plan attached in the written statement was orally given to him and at that time plaintiff-respondent relinquished all her claim, right, title and interest in the said plot and in this manner, he became the owner in possession of the aforesaid portion marked as ABCDEF. It was further stated that adjoining portion of the plot was given to the brother of the defendant-appellant and front portion was given to another brother namely Rajinder Dhiman. It was further claimed by the appellant that since then he was in open, uninterrupted, continuous and peaceful possession of the plot being owner. He constructed a portion by spending Rs.3 lacs in the year 2000 and thereafter shifted his residence, therein. It was further averred that since he was owner in possession of the property in dispute, the question of revoking the licence does not arise at all. Other averments were denied and dismissal of the suit was prayed. In replication, the plaintiff-respondent reiterated all the averments as taken in the plaint and controverted the averments of the defendant. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the mandatory injunction as prayed for?OPP 2. Whether the suit is not maintainable in the present RSA No.415 of 2009(O & M) 3 form?OPD 3. Whether the defendant has become owner by way of adverse possession of the house in dispute, if so, its effect?OPD 4. Relief. After perusing the evidence on record and hearing learned counsel for the parties, the trial Court decreed the suit and and directed the appellant to give vacant possession and mandatory injunction to the plaintiff-respondent. Aggrieved from the aforesaid judgment and decree, defendant filed an appeal before the Lower Appellate Court. During the pendency of the appeal, an application was moved by the appellant for leading additional evidence. The aforesaid application was dismissed by the Lower Appellate Court while dismissing the appeal holding that the same was not justified. The plea of the defendant on the basis of adverse possession was also not accepted and the appeal was dismissed. Still not satisfied, the defendant is in second appeal before this Court. Learned counsel for the appellant has vehemently argued that the courts below have not appreciated the evidence of the appellant as his case was that he raised the construction of the house in the year 1999- 2000 after the partition of plot in question fell to his share in oral partition in the year 1987. The courts below have failed to take into consideration the various documents produced on record to establish the money spent by him for construction of the house through the aforesaid bills. Even during the construction, he was issued a notice by the Municipal Corporation that he had raised unauthorized construction. However, the Lower Appellate Court wrongly rejected the prayer for leading additional evidence to this effect. It is further case of the appellant that he proved that in the oral RSA No.415 of 2009(O & M) 4 family settlement that the portion marked as ABCDEF was given to him and he raised the construction over the said portion by spending Rs.3 lacs and he was residing in the same with his family and thus the findings recorded by the courts below were perverse and were liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant submitted that following substantial questions of law arise in this appeal: 1. Whether the judgment and decree of the courts below are perverse and misreading of evidence? 2. Whether the appellant/defendant suffered prejudice as the First Appellate Court has not granted proper opportunity to address the arguments? 3. Whether the courts below have erred in law by not dealing with the contention and the evidence of the appellant/defendant as such appellant/defendant suffered prejudice? 4. Whether the courts below erred in law by not appreciating the admission made by the plaintiff regarding the facts stated by the appellant/defendant? 5. Whether the courts below erred in law in not recording issue wise finding in appeal rather recording a general finding without there being any decision on the issue? On the other hand, learned counsel appearing on behalf of the respondent has supported the judgment and decrees of the courts below. It has been submitted on behalf of the plaintiff-respondent that plea of adverse possession taken by the appellant has not been accepted by the courts below and in fact before this Court appellant is not claiming his title, on the basis of the plea of adverse possession and is claiming himself RSA No.415 of 2009(O & M) 5 to be owner in possession of the suit property on the basis of some oral family partition which is not argued. It has been further stated that the appeal which is without merit is liable to be dismissed. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the courts below. The appellant is the son of plaintiff-respondent. Admittedly, suit property measuring 200 square yards was purchased by the plaintiff- respondent. It is not the case of appellant that he has contributed any fund for purchase of the aforesaid plot. The case as set up before this court is that he has become owner in possession of the part of the house described as ABCDEF on the basis of an oral partition between brothers in the year 1987 and thereafter he has spent a considerable amount for construction of the house and is living there with his family and therefore plaintiff- respondent was not entitled to the mandatory injunction as she never raised any objection when he was raising construction over the suit plot. The argument raised by the learned counsel for the appellant is noticed only to be rejected. In spite of the fact that appellant had taken the plea that he has become owner in possession of the suit property on the basis of oral partition, no such evidence has been placed on record to prove the aforesaid partition between the parties. Not only this, appellant has failed to establish his any right, to claim the partition of the suit plot. It is well settled that partition can be effected only between the persons who are having any right in the suit property. Admittedly, the suit plot belongs to respondent alone. Even otherwise, there is no evidence to prove the aforesaid assertion of the appellant. The plea of adverse possession taken by the appellant has also not been proved. Moreover, by taking the plea, the appellant has accepted the ownership of the plaintiff-respondent over the suit property. Thus, appellant has miserably failed to establish his right to continue in possession of suit property. RSA No.415 of 2009(O & M) 6 No substantial question of law arises. No merits. Dismissed. (RAKESH KUMAR GARG) JUDGE 27.07.2010 neenu