RSA No.990 of 2008(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.990 of 2008(O & M) Date of Decision:29.09.2008 Tek Chand & anr. ....appellants Versus Ramesh Kumar .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Sudhanshu Makkar, Advocate for the appellants **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below, whereby the suit for declaration to the effect that plaintiffs are owner in possession of the suit land for the last 35- 36 years by way of adverse possession and that the defendant has no concern, right or interest in the suit property in any manner and further suit for permanent injunction as consequential relief restraining the defendant from interfering in the peaceful ownership and possession of the plaintiffs over the suit property, has been dismissed. Briefly stated, the facts of the case are that the plaintiffs had settled in village Baliyali, Tehsil Bawani Khera, District Bhiwani, for the last 35-36 years. The suit property is within Lal Dora. It is claimed that their Bitora, firewood, kurdi, bricks etc.are lying on the suit land and they also tether their cattle and further that their possession over the suit property is open, hostile, continuous and peaceful to the knowledge of the defendant and hence they have acquired ownership by way of adverse possession. The plaintiffs further claimed that on 03.09.1997, the defendant came to RSA No.990 of 2008(O & M) 2 the spot and proclaimed that he would raise construction on the suit property, forcibly. Hence, the necessity to file the present suit. The suit was contested by the defendant/respondent claiming that he and his family members were in possession of the suit property and the plaintiffs had no concern with the suit property. After considering the evidence and hearing the parties, the trial Court dismissed the suit filed by the appellants. While negativing the plea of the adverse possession of the plaintiffs, the Lower Court held that the plaintiffs in this case have miserably failed to establish adverse ownership by leading any documentary or oral evidence and the mere acts of user such as throwing rubbish, placing cow dung cakes, tethering cattle, installation of pegs will not establish adverse possession for which overt act is necessary for such litigant to establish that he had been exercising possession with the intention to retain it by excluding others. Plaintiffs filed an appeal in the Court of Additional District Judge, Bhiwani, which was also dismissed by impugned judgment and decree dated 30.07.2007. While dismissing the appeal, the Lower Appellate Court held as under: “ The perusal of evidence adduced by the plaintiff would further indicate that besides his own evidence he has examined Satpal who is his real nephew but both of them did not state when their possession on the suit land become hostile to the real owner. It is further observed that both of them not stated anywhere that the possession of the suit land by the plaintiffs was adverse and hostile to the true owner. From the pleadings, as well in his evidence, the plaintiff has not admitted that the respondent is the true owner of the suit property. The requirements of law for RSA No.990 of 2008(O & M) 3 setting up a case of adverse possession have not been fulfilled in any manner from the pleadings or from the evidence adduced from the side of plaintiffs.” Feeling aggrieved against the judgment and decrees of the Courts below, the instant appeal has been filed in this Court. In support of his case, learned counsel for the appellants has vehemently contended that the plea of the appellants with regard to adverse possession of the property in dispute has been proved from the record of the Local Commissioner, which has not been objected to by the respondents and therefore the findings of the Courts below are perverse and are the result of misinterpretation and misreading of the facts on record. In support of his argument, the learned counsel has relied upon the judgment of Andhra Pradesh High Court in Vadde Rajeswaramma versus Dr.V.L.Narasimha Charyulu 1998(2) R.C.R.(Civil) 617. I have heard the learned counsel for the appellants and find no force in his contentions. The report of the Local Commissioner mentions that at the time of spot inspection of the suit property, a lady named Savitri w/o Tek Chand was present who was giving Kurdi at the spot. A girl was found making cow dung cakes. She disclosed herself to be daughter of Tek Chand. The said report of Local Commissioner would not help the case of the plaintiffs in any manner as the mere fact that plaintiff's' family tether their animals and making cow dung cakes would not show that he possessed it in adverse or hostile manner. This possession may be permissible also, unless it is specifically stated that the said possession was adverse and hostile to the knowledge of true owner, even if the contention raised by the counsel for the appellants is accepted and report of the Local Commissioner is taken into consideration, the same does not improve the case of the appellants in any manner. RSA No.990 of 2008(O & M) 4 Moreover, the plea of adverse possession is available only to a defendant against a plaintiff and no declaration can be sought by a plaintiff with regard to his ownership on the basis of adverse possession. I am supported in my view by a judgment of this Court in the case of Bhim Singh and Ors. Versus Zile Singh and Ors.reported as 2006(3) PLR 159. For the reasons recorded above, I find no merit in the appeal. No substantial question of law arises in the present appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 29.09.2008 neenu