R.S.A. No. 3148 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3148 of 2010 (O&M) Date of decision : 18.8.2010 ... Rajpal and others ................Appellants vs. Sat Parkash and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. V.K. Jain, Senior Advocate with Sh. J.K. Bhatti, Advocate for the appellants ... K.C. Puri, J. This is the regular second appeal preferred by the plaintiff- appellants against the judgment dated 25.2.2010 passed by Sh. Virendra Singh, District Judge, Sonepat, vide which the appeal preferred by the plaintiff-appellants against the judgment dated 11.6.2008 passed by Sh. Rajinder Pal Goyal, Additional Civil Judge (Senior Division), Sonepat, was dismissed. The plaintiffs have claimed ownership in respect of the suit property with the allegation that Dhoom Singh is the father of plaintiffs No. 1 to 5, father-in-law of plaintiff No.6 and grandfather of plaintiffs No. 7 to 11. Dhoom Singh has executed a Will dated 20.9.2000 and as per the Will all his property fell to the plaintiffs in R.S.A. No. 3148 of 2010 -2- equal shares after his death. Dhoom Singh had died on 26.5.2001. Brij Pal has also expired on 8.2.2004 leaving behind plaintiffs No. 6 to 11 as his legal heirs. The suit property is ancestral one. The plaintiffs came to know on 5.9.2004 that defendant No.2 had got mutation No.3400 sanctioned in his favour with respect to the suit property on the basis of sale deed alleged to be executed in pursuance of the judgment 14.3.1992 passed by Sub Judge Ist Class, Sonepat and defendant No.2 further executed a gift deed on 19.3.2004 in favour of defendant No.1. Defendant No.2 has never taken the possession of the land in dispute from the plaintiffs. Plaintiffs are still owners in possession of the suit property and as such they had become owners of the suit property by adverse possession also. Defendants filed written statement taking preliminary objections regarding locus standi, cause of action, limitation etc. It has been further stated that plaintiffs were not in possession of the suit land prior to the institution of the suit nor they have any concern with the suit property. Dhoom Singh has no interest in the suit land after confirmation of the sale of the suit land in favour of defendant No.2 vide order dated 14.3.1992. Defendant No.2 was declared auction purchaser of the suit land in public auction held on 5.10.1991. The Court had dismissed the objections of JDs, the predecessor-in- interest of the plaintiffs. Mutation No.3400 has been sanctioned in pursuance of the above said order and defendant No.2 had been put to actual physical possession of the land by Dhoom Singh himself as he had reconciled with the above said order and had not preferred to challenge the same in appeal or in revision. Defendant No.2 has been R.S.A. No. 3148 of 2010 -3- recorded to be owner in possession of the suit property. The other averments made in the plaint were denied. Plaintiffs filed replication to the written statement filed by the defendants and reiterated the stand taken in the plaint while controverting the stand taken in the written statement. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are owners in possession in equal share over the suit land and impugned decree, gift deed, mutation and jamabandi are illegal and liable to be set aside and plaintiffs are entitled to the relief of injunction? OPP. 2. Whether the plaintiffs have no locus standi and cause of action to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have not come to the Court with clean hands? OPD 5. Whether the suit is barred by limitation? OPD 6. Relief. The plaintiffs, in order to prove their case examined PW-1 Raj Pal, PW-2 Charan Singh, PW-3 Ravinder, PW-4 Virender Singh and closed the evidence after tendering certain documents. On the other hand, defendants examined DW-1 Sat Parkash and closed the evidence after tendering certain documents. Learned trial Court, after appraisal of the evidence returned the finding on issue No.1 against the plaintiffs. Issues No. 2 to 5 were R.S.A. No. 3148 of 2010 -4- decided against the plaintiffs. Consequently, the suit of the plaintiffs was dismissed. Feeling dissatisfied with the above said judgment dated 11.6.2008, passed by Sh. Rajinder Pal Goyal, Additional Civil Judge (Senior Division), Sonepat, the plaintiffs filed the Ist appeal and the same was dismissed vide judgment dated 25.2.2010, passed by Sh. Virendra Singh, District Judge, Sonepat. Still feeling dissatisfied with the judgments dated 25.2.2010 and 11.6.2008, referred to above, the plaintiffs have preferred the present regular second appeal. The appellants in paragraph No. 9 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal:- i) Whether the sanctioning of mutation can be an evidence on change of possession in the eyes of law? ii)Whether in the absence of compliance of Order 21 Rule 95 CPC, the possession would be deemed to have changed from the hands of judgment debtor to the hands of auction purchaser? iii)Whether the suit for declaration of ownership on the strength of adverse possession is maintainable or not? iv)Whether the findings of fact recorded by the Courts below suffer from the patent illegality and material irregularity, as the Courts below have not considered the oral and documentary evidence on record and hence, the findings are perverse? R.S.A. No. 3148 of 2010 -5- Learned counsel for the appellants has submitted that mere fact that mutation of sale has been attested in favour of defendant No.2, does not prove the ownership of defendant No.1. The actual possession was never taken by defendant No.2. Dhoom Singh remained in possession of the suit property till his death and after his death the plaintiffs, his legal heirs on the basis of the Will, as well as, natural succession, remained in possession of the suit property. There possession has matured into full fledge ownership by way of adverse possession as they have never been dispossessed by due course of law. The suit on the basis of adverse possession is maintainable. Both the Courts below have committed illegality and material irregularity by not considering the oral and documentary evidence on the record and the finding of both the Courts below are perverse on that ground. I have carefully considered the said submission, but do not find any force in that submission. It is not disputed that Dhoom Singh was owner of the suit property. It is also not disputed that the land of Dhoom Singh was auctioned in respect of recovery of amount. Auction was held on 5.10.1991 and sale was confirmed on 14.3.1992. The only grievance ventilated by the counsel for the appellants is that since defendants have not taken possession after 14.3.1992 from Dhoom Singh and after his death, plaintiffs remained in possession of the suit property in a hostile manner, adversely to the rights of the defendants, for a statutory period of more than 12 years and as such their possession has matured into full fledge ownership. There is concurrent finding of fact recorded by both the Courts below that plaintiffs are not in possession of the suit property. That being a R.S.A. No. 3148 of 2010 -6- finding of fact cannot be challenged in the regular second appeal. Not to talk of adverse possession, even their possession has not been held by both the Courts below. So, the question of their becoming owner by way of adverse possession does not arise at all. There is nothing on the file to show that judgments of both the Courts below is a result of misreading and misinterpreting the evidence on the file. No doubt, the mutation is for fiscal purposes and does not confer any right, but in the present case defendant No.2 has become owner being the auction purchaser. No pointed attention of mine has been drawn how the oral and documentary evidence is misread and misinterpreted by both the Courts below. So, in these circumstances, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Since the question of fact regarding possession has already been answered against the plaintiffs, consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 18.8.2010 Judge chugh