IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3572 of 2011 (O&M) Date of decision : 02.09.2011 Ajit Kaur … Appellant Versus Surjit Kaur and others …Respondents CORAM : HON’BLE MR.JUSTICE K.C.PURI Present: Mr.Vaibhav Narang, Advocate for the appellant. K.C.Puri, J. This is an appeal directed by defendants-appellant against the judgment and decree dated 12.3.2010 passed by Shri Ashok Paul Batra, Addl.District Judge, Amritsar vide which the appeal preferred by the defendants-appellant against the judgment and decree dated 14.12.2007 passed by Mrs. Lakhwinder Kaur, Civil Judge (Jr.Divn.), Amritsar was dismissed. The plaintiffs have filed a suit for possession by way of partition claiming to be the co-sharer to the extent of 1/7th share in respect of the suit property. It is pleaded that Jaswant Kaur wife of Jawala Singh was the owner of the property bearing No.4438, Ranjit Pura, Amritsar, which was purchased by her from Kartar Kaur wife of Ladhhman Singh vide registered sale deed dated 18.1.1963. Jaswant Kaur was the mother of the plaintiffs and defendants No.6 to 8 and Harbhajan Singh. It is pleaded that Harbhajan Singh has died leaving behind defendants No.1 to 5 as his legal heirs. The plaintiffs are having 1/7th share each in the property being the daughter and son of RSA No.3572 of 2011 (O&M) Smt.jaswant Kaur, since deceased and is therefore in joint possession of the property in dispute. The suit for partition has been filed. The defendants appeared and contested the suit and filed a written statement taking preliminary objections that the plaintiffs have no locus standi to file the suit on the ground of less court fee. It is alleged that in fact, Jaswant Kaur was entered as benamidar. In fact, Harbhajan Singh was the Karta of the said family after the death of his father, Jawala Singh who died in the year 1955-56. Even at the time of death of Jawala Singh, father of Harbhajan Singh has one sister namely Harnam Kaur, she was married, who died and the remaining children were unmarried. Harbhajan Singh with hard, labour got married all his sisters and brothers. The plaintiffs never claimed any right in the suit property and treated Harbhajan Singh as owner of the suit property. Harbhajan Singh during his life time and his legal heirs after his death, have become the owners of the property by way of adverse possession also as their possession is open notorious, hostile, continuous, uninterrupted. Defendants No.7 filed a separate written statement pleading that Jaswant Kaur was the owner of the property on the basis of sale deed and she is also entitled to be owner being legal heir, on account of death of Jaswant Kaur in respect of 1/6th share. Remaining defendants did not appear despite service. They were proceeded ex parte. Plaintiff filed the replication to the written statement wherein all the averments made in the written statement were denied and that of plaint was reiterated. From the pleadings of the parties, the trial court framed the following issues:- 2 RSA No.3572 of 2011 (O&M) 1. Whether the plaintiff is entitled to relief for possession by way of partition, as prayed for? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit is time barred? OPD 6. Whether the suit is bad for mis joinder and non joinder of necessary parties? OPD 7. Relief.” To prove their case, the plaintiffs examined PW1, Sat Pal Behal, PW2, Veena Kumari, Sukhdev Singh, PW3 Tejinder Singh, plaintiff himself appeared as PW4 and also examined Kuldeep Singh PW5 attorney of plaintiff Surjit Kaur and closed the evidence. In rebuttal, defendant Ajit Kaur herself appeared as DW1 and also examined DW2 Narinder Singh, Defendant Jagjit Singh appeared as DW3 and closed the evidence. Learned trial Court after appraisal of the evidence, decreed the suit of the plaintiff holding them owner to the extent of 1/7th share and preliminary decree for possession by way of partition by metes and bounds was passed in respect of the suit property. Feeling dissatisfied with the above said judgment dated 14.12.2007, passed by Mrs. Lakhwinder Kaur, Civil Judge (Jr.Divn.) Amritsar, defendants preferred first appeal before the first appellate court. The said appeal was heard by Shri Ashok Paul Batra, Additional District Judge, Amritsar and after re-appraisal of the evidence, dismissed the appeal 3 RSA No.3572 of 2011 (O&M) preferred by the defendants-appellants vide judgment and decree dated 12.3.2010. Still feeling dissatisfied with the judgment and decree dated 12.3.2010 passed by Addl.District Judge, Amritsar and judgment and decree dated 14.12.2007 passed by Civil Judge (Jr.Divn.), Amritsar, the defendants- appellants have preferred the present regular second appeal. The appellants have pleaded in paragraph No.10 of the grounds of appeal, that following substantial questions of law have arisen:- i) Whether the findings on issue no.1 is perverse and against the evidence on record? ii) Whether the suit of the plaintiff-respondent should have been decreed in view of the evidence and pleadings that the defendants-appellants have been in peaceful uninterrupted possession since 1973 of the property in question? iii) Whether the Ld.Trial court was under legal obligation to record findings on each and every issue independently in light of the provisions of CPC? Learned counsel for the appellants has submitted that the suit property was purchased as a benamidar in favour of Jaswant Kaur and the funds were provided by Harbhajan Singh. Both the courts below have misread and misinterpreted the evdience. The appellant remained in possession of the suit property since 1973 without any interruption and as such become the owner of the suit property by way of adverse possession also. The trial Court is legally bound to decide each and every issue independently. I have carefully considered the submissions made by learned counsel for the appellants and have gone through the record of the case. 4 RSA No.3572 of 2011 (O&M) The main controversy in the present case is whether the property was purchased out of funds provided by Harbhajan Singh. After the enactment of the Benami Transaction (Prohibition) Act, 1988, the plea of benami is not available to the appellant, otherwise, also there is concurrent finding of fact recorded by the both the courts below that Jaswant Kaur was the owner of the suit property and that finding of fact cannot be interfered in view of Section 100 CPC. There is nothing on the file that judgment of both the courts below are perverse or the result of misreading and misinterpreting the evidence. Co-sharer has to plead and prove the ouster of other Co-sharer from the suit land to prove the plea of adverse possession. Plea of adverse possession did not find favour from both the courts below and there is no reason to differ with that concurrent finding of fact recorded by both the courts below. When the parties are alive to the case of each other, in that eventuality, non-framing of issues is immaterial. The issue of limitation was not pressed before the trial court. The plea of mis-joinder of parties is not available as the legal heirs of Harnam Singh have been arrayed as party as per order of Punjab and Haryana High Court. Otherwise also, there is 406 days’ unexplained delay in filing the appeal. No valid reasoning for condonation of delay has been given. So the appeal is time barred. In view of the above discussion, all the points for determination stands determined against the appellant. Consequently, the appeal is without any merit and the same is hereby dismissed on merits as well as being time barred. 5 RSA No.3572 of 2011 (O&M) A copy of this judgment be sent to the trial Court for strict compliance. ( K.C. Puri) Judge 02.09.2011 sd 6