Regular Second Appeal No. 1605 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 1605 of 2008 Date of Decision: 16.8.2011 Ram Rup alias Rup Lal and Others …Appellants Versus Daya Nand and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. C.B.Goel, Advocate for the appellants. Mr. Amit Kumar Jain, Advocate for respondent No.1. Mr. S.N.Pillania, Advocate for respondents No.2 and 3. Kanwaljit Singh Ahluwalia, J. (Oral) The present appellants were defendants No.3 to 9 to the suit filed by Daya Nand, plaintiff/respondent No.1. The appellants, having lost before both the Courts below, have approached this Court by filing the present regular second appeal. Daya Nand, plaintiff/respondent No.1, had instituted a suit for possession of land comprised in khasra Nos. 162 (Min East 9.5 karams) and 163 (Min West 9 karams) situated in village Khanda Alewa, Tehsil and District Jind. He had also made a prayer that he is entitled to mesne profits at the rate of ` 10,000 per annum till the delivery of possession. A Regular Second Appeal No. 1605 of 2008 2 further prayer for permanent injunction was made that the defendants be restrained from raising any construction over the suit property. In the suit, it was prayed that the plaintiff is in exclusive possession of the suit property, detail and description whereof has been given in head note of the plaint. It is further stated that the defendants had illegally entered into possession of the remaining part of khasra numbers and the plaintiff, being owner, is entitled to possession. Upon notice, a joint written statement was filed on behalf of respondents No.1 to 3 and 5 to 9. There are two parts of the suit i.e. khasra Nos. 162 and 163. This Court need not to deliberate upon khasra No. 162 as in execution proceedings possession of the suit property has been delivered to the plaintiff by defendants No.1 and 2. So far as the present appeal is concerned, the dispute pertains to khasra No. 163, regarding which the following pleadings have been made by defendants No.3 to 9. “1...Similarly, in the year 1976 family settlement arrived between the plaintiffs and defendants No.3 to 9 according to which 2/3rd share of the land of khasra No. 163 was given to defendants No.3 to 9 and the remaining 1/3rd share was remained with the plaintiffs, defendants No.3 to 9 also paid ` 2,000 to the plaintiffs in consideration of excess area given to the defts. No. 3 to 9 and defendants No.3 to 9 have constructed their house over the said area and becoming owner in possession since 1976. Regular Second Appeal No. 1605 of 2008 3 Entry in this regad was incorporated in the Bahi of the parties which was thumb marked and attested by the parties and the witnesses...” Furthermore, during the pendency of appeal before the lower Appellate Court, written statement was amended and plea of adverse possession was also raised. Let us, at the first instance, consider the plea raised regarding the family settlement arrived at between the plaintiff and defendants No.3 to 9, relevant portion whereof has been reproduced above. To adjudge this fact, the trial Court had formulated the following issue:- “(1) Whether the plaintiff is entitled to possession of the suit land falling in khasra No. 162 (min West 2.5 karams) and khasra No. 163 (Min East 3 karams) as detailed in the plaint? OPP” This issue was reframed and the same reads as under:- “(1) Whether the plaintiff is entitled to possession of the suit land falling in khasra No. 162 (min West 2.5 karams) and khasra No. 163 (Min East 3 karams) as detailed in the plaint? If yes, whether the plaintiff is entitled to mesne profit at the rate of ` 10,000 per annum as claimed? OPP” Qua issue No.1, which was reframed, the trial Court has held that defendants No.3 to 9 were claiming their ownership on the basis of Regular Second Appeal No. 1605 of 2008 4 family settlement, which has been recorded in the bahi and portion whereof was brought on the record as Mark DA. The trial Court has held that the document Mark DA is beyond the pleadings of the parties. As per the reproduction of the written statement, which has been reproduced above, the document Mark DA was arrived at between Daya Nand and defendants No.3 to 9. Learned counsel for the appellants was candid enough to state that infact Mark DA was arrived at between Daya Nand and Atta Singh, grand father of defendants No.3 to 9. Mr. Goel has submitted that he has also brought the original of Bahi but he is not able to show that even Mark DA contained signatures or thumb impression of Atta Singh, grand father of defendants No. 3 to 9. Be that as it may, it has been rightly held by the trial Court that Mark DA was signed by Atta Singh. It has further held that this document Mark DA was written between them and Daya Nand, plaintiff. Thus, a wrong averment has been made. For sake of argument, even if this Court go to the extent of not endorsing finding of the Courts below that because of wrong statement/averment document Mark DA is to be ignored yet another question which indeed has arisen is regarding the admissibility of this document. Mr. Goel has submitted that Lakhi Ram son of Mathura, while appearing as DW.1, stated that he was a scribe of the document. He has further submitted that thus, admissibility of document Mark DA ought to have been decided by the Courts, when the scribe has stated that in his presence Daya Nand had signed it. It is not denied that Zile Singh, who was the attesting witness, in his examination-in-chief, has nowhere stated that the document was scribed in his presence or he had attested the same being a marginal witness. Regular Second Appeal No. 1605 of 2008 5 He has also not stated that Daya Nand had signed this document in his presence. Therefore, rightly document Mark DA has been kept out of consideration. The trial Court advanced another reason to ignore document Mark DA. The reason stated by the trial Court reads as under:- “11...The contention of learned counsel for the defendants that he should be permitted to exhibit the document Ex.DA is liable to be ignored, for vide this document Daya Nand son of Ram Kishan had transferred his share in immovable property to Shri Atta Ram against a sale consideration of ` 2,000 but the said document is neither duly stamped nor the same has been got registered by the parties. As such, in view of this fact, the contention of learned counsel for the defendants is hereby declined and he cannot be granted the permission to exhibit this document inspite of the fact that he has proved the same with the help of scribe thereof. It is further mentioned that the document Mark DA is merely a photostat copy of the bahi entry and the original of the same has not been brought in the Court by the defendants, as such, the said document cannot be impounded for the purpose of the payment of the requisite stamp duty. As such, the contention of the defendants regarding their ownership on the 2/3rd share of the land comprised in khasra No. 163 is Regular Second Appeal No. 1605 of 2008 6 also liable to be ignored...” The trial Court has further held that mere possession for a period of more than 12 years is not sufficient to hold that the defendants were having adverse possession over the suit property. The trial Court has relied upon the testimony of plaintiff as PW.1 to state that it was only few days earlier to the filing of the suit when the defendants had encroached upon the suit property. Thus, issue No.1 was decided in favour of the plaintiff and against the defendants. However, the trial Court has further held that the plaintiff is not entitled to mesne profits. Issues No.2 to 5 were not pressed by the defendants, therefore, the same were decided against them. The trial Court, thereafter, has partly decreed the suit and held the plaintiff is entitled to the possession over the suit property but declined grant of mesne profits. The findings returned by the trial Court have been upheld by the lower Appellate Court. The lower Appellate Court has held that adverse possession of the plaintiff is not proved. Mr. C.B. Goel, Advocate, appearing for the appellants, has submitted that as per the testimony of DW.1 Lakhi Ram and DW.2 Zile Singh, the plaintiff is in possession of the suit property for the last 26 years and he had also raised the construction, therefore, both the Courts below ought to have held that the plaintiff is in adverse possession over the suit property. Both the Courts below have considered the testimony of plaintiff as PW.1 and depositions of DW.1 Lakhi Ram and DW.2 Zile Singh. DW.2 Zile Singh has not proved the writing Mark DA. He has only stated regarding possession of defendants No.3 to 9. Therefore, both the Courts below, after appreciation of evidence, have given valid Regular Second Appeal No. 1605 of 2008 7 reasons to discard the evidence of DW.1 Lakhi Ram and DW.2 Zile Singh. Furthermore, both the Courts below have preferred the testimony of plaintiff as PW.1 to hold that the defendants had encroached upon the property only a few days before filing of the suit. This Court, in regular second appeal, will refrain itself from treading on the path of re-appreciation and do re-appraisal of the evidence. Whether the appellants/defendants No.3 to 9 were in adverse possession over the suit property or not is a question of fact. Both the Courts below have determined the same by placing implicit reliance upon the testimony of plaintiff as PW.1 and have neither misread the evidence nor had acted perversely. Hence, no grounds to interfere is made out in the present appeal especially when no question of law, much less a substantial one, has been raised for consideration of this Court, during the course of arguments. Hence, there is no merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge August 16, 2011 “DK”