R.S.A. No. 711 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Regular Second Appeal No. 711 of 2010 Date of decision:- 21.02.2011 Mool Chand and another ....Petitioners Vs. Mohinder Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE L.N. MITTAL ****** Present:- Mr. Arvind Bansal, Advocate, for Mr. Rakesh Nagpal, Advocate, for the appellants. L.N. MITTAL, J (ORAL) Plaintiff Nos. 2 and 3 (Mool Chand and Madan Lal), who are also legal heirs of plaintiff No.1 (since deceased), have filed the instant second appeal, after they failed in both the Courts below. The plaintiffs alleged that they are owners in possession of residential house forming part of Khasra Nos.7339 and 7340 depicted by letters WXYC in the site plan attached to the plaint. It was also pleaded that plaintiffs have become owners thereof by adverse possession. It was further pleaded that defendants have encroached upon portion of the said house, depicted by letters ABCD in red colour in the site plan. Accordingly, plaintiffs sought decree for possession of the suit portion ABCD. Defendants, by filing written statements, controverted the plaint allegations and set up their own claims. R.S.A. No. 711 of 2010 2 Learned Additional Civil Judge (Senior Division), Sonipat, vide judgment and decree dated 16.01.2008, dismissed the plaintiffs' suit. First appeal preferred by plaintiffs has been dismissed by the learned District Judge, Sonipat, vide judgment and decree dated 22.07.2009. Feeling aggrieved, plaintiff Nos. 2 and 3 have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiffs-appellants alleged that the suit property is part of Khasra Nos.7339 and 7340. But no revenue record thereof has been produced to depict that plaintiffs are either owners or in possession of the land of said Khasra numbers. Consequently, adverse presumption arises against the plaintiffs. There is also no other documentary evidence to prove ownership or possession of the plaintiffs over the suit property. Oral evidence led by the plaintiffs is not sufficient to prove their ownership or possession over the suit property. There is also no cogent evidence to depict that the suit property is part of Khasra Nos. 7339 and 7340. Plaintiffs-appellants' claim of acquiring ownership over the suit property by adverse possession is also, therefore, not substantiated as they have failed to depict their possession thereon for more than 12 years before filing of the suit. Moreover, the plaintiffs cannot seek declaration of their ownership by adverse possession because adverse possession can be set up only as defence. In this view, I am supported by two judgments in cases of Bhim Singh & Others Vs. Zile Singh & Others, 2006 (3) Civil Court Cases 479 (P&H) and Dewaki & Others Vs. Dayawanti & Others, 2006 (3) Civil Court Cases 615 (P&H). R.S.A. No. 711 of 2010 3 Learned counsel for the appellants contended that even defendants-respondents have failed to establish their ownership over the suit property. This contention does not entitle the plaintiffs to any relief because even if defendants are not proved to be owners of the suit property, plaintiffs cannot seek possession thereof from the defendants without proving their (plaintiffs') own title. Plaintiffs have, however, miserably failed to prove their title over the suit portion. Consequently, they have been rightly non-suited by the Courts below. There is concurrent finding recorded by the Courts below against the plaintiffs. The said finding is based on proper appreciation of evidence and is supported by reasons recorded by the Courts below. The said finding is not shown to be perverse or illegal nor based on misreading or misappreciation of evidence, so as to call for any interference in second appeal. No substantial question of law arises for determination in this second appeal. The appeal is found to be lacking any merit and is, accordingly, dismissed in limine. (L.N. MITTAL) February 21, 2011 JUDGE ajp