RSA No. 1485 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1485 of 2008 Decided on : 31-08-2009 Gulzar Singh ....Appellant VERSUS Ram Garhia Kannya Pathshala, Kapurthala ....Respondent CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present:- Mr. Samrath Sagar, Advocate for the appellant Mr. G.S.Sandhawalia, Advocate for the respondent HEMANT GUPTA, J The defendant is in second appeal aggrieved against the judgment and decree passed by Courts below whereby suit for possession on the basis of title of area measuring 8 marlas out of Khasra no.29830/1875 (8 kanals 4 marlas) was decreed. As per the plaintiff Sant Ram who was owner of of 11 kanals 19 marlas bearing Khasra no.299830/1874 (3 kanals and 15 marlas) and Khasra no.29830/1875 (8 kanals 4 marlas). Sant Ram has constructed a house during his lifetime but allowed the defendant to use the same. Sant Ram died in the year 1982 and thus the permission granted to defendant came to an end and the plaintiff claimed possession of the suit property. The defendant relied on Will dated 8.6.80 claiming title over the suit property. The defendant also claimed to be in adverse possession having raised construction of the house in the year 1973. It was found by both the Courts below that Sant Ram has executed a gift deed dated RSA No. 1485 of 2008 2 14.1.1979 in favour of the plaintiff and such gift deed was upheld by the Civil Court in judgment and decree dated 12.12.2005. The gift deed is Ex.P-3. One similar suit filed by the plaintiff against Malkiat Singh in respect of part of construction raised over Khasra no. 1875 was decreed by Sh.Jagdeep Sood, Civil Judge on 12.12.2005. On the other hand, the defendant examined Rajja Singh DW 3 and Bhupinder Singh DW 5 The learned Trial Court found that defendant is blowing hot and cold in the same breath. In the one hand, it is the stand of the defendant that the title of Sant Ram has not been proved but on the other hand, he has propounded Will executed by Sant Ram in his favour. The said Will has not been produced while discussing issue no.3 on the plea of adverse possession raised by the defendant it was found that DW3 Rajja Singh brother of defendant has admitted in his cross-examination that suit property was given by Sant Ram temporarily for use to defendant Gulzar Singh. It was , thus, found that defendant has failed to prove his plea of adverse possession. The First Appellate Court held that defendant failed to prove adverse possession by leading cogent evidence. The plea of the defendant that he has become owner of the suit property by way of adverse possession is not substantiated. The defendant while appearing as DW2 he has not stated that he is owner of the suit property by adverse possession and that his possession was open, hostile and was in the knowledge of general public. Similarly, Rajja Singh and Bhupinder Singh have not also deposed that the possession of defendant was for more than 12 years. I have heard learned counsel for the parties at some length but do not find any substance in the present appeal. Though the appellant has RSA No. 1485 of 2008 3 raised plea of adverse possession but pleadings in the written statement show that the plea of adverse possession has been raised against the plaintiff and not against Sant Ram. The plaintiff as a witness has not deposed that he is in adverse possession to the knowledge of the true owner i.e Sant Ram or his transfree. So is the statement of Rajja Singh DW3 and Bhupinder Singh DW5. As a matter of fact the appellant has claimed title by way of a Will as well. The plea of Will and plea that he is in adverse possession are mutually destructive to each other. The plaintiff cannot be owner by way of succession and in adverse possession at the same time. Therefore, I do not find any substantial question of law which arises for the consideration of this Court. The findings of fact recorded by Courts below are sought to be disputed in the second appeal by seeking re- appreciation of evidence. Hence, dismissed. August 31, 2009 (Hemant Gupta) rekha Judge