Regular Second Appeal No. 575 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 575 of 2009 Date of decision : May 04, 2011 Amrik Singh ....Appellant versus Nasib Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. V.G.Dogra, Advocate, for the appellant Mr. L.S.Mann, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Amrik Singh having unsuccessful in both the courts below is in second appeal. Respondent – plaintiff Nasib Singh filed suit against defendant- appellant for possession of 10 kanals 3 marlas land in suit alleging that plaintiff is owner thereof and the defendant took forcible possession thereof three years prior to filing of the suit and the defendant is in illegal possession of the suit land. The defendant, inter alia, pleaded that he is in possession of the Regular Second Appeal No. 575 of 2009 -2- suit land for the last 17 years and the suit is bad on ground of laches and acquiescence. It was denied that defendant took forcible possession three years prior to the suit. The suit was alleged to be time barred. It was pleaded that the plaintiff has no locus standi to file suit. The defendant made suit land cultivable by spending huge amount and labour. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Nakodar vide judgment and decree dated 21.2.2006 decreed the plaintiff's suit. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 13.5.2008. Feeling aggrieved, the defendant has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Perusal of revenue record i.e. jamabandi for 1990-91 Ex. P1 (also Ex. D2), khasra girdawari from 1991 till 1996 Ex. P2 (also Ex. D5) and jamabandi for 1995-96 Ex. D3 reveals that plaintiff is owner of the suit land. Entries in jamabandi carry presumption of correctness. The said presumption has not been rebutted by the defendant in any manner. Plaintiff is, thus, proved to be owner of the suit land. It may be added that the defendant did not even claim himself to be owner of the suit land nor pleaded that some body else is owner thereof. Learned counsel for the appellant vehemently contended that entries in jamabandies are not sufficient to prove ownership of the plaintiff. The contention cannot be accepted. Entries in jamabandi carry Regular Second Appeal No. 575 of 2009 -3- presumption of correctness which has not been rebutted in the instant case in any manner. On the contrary, defendant himself is relying on entries in revenue record to depict his possession. Concurrent finding recorded by the courts below that plaintiff is owner of the suit land is fully justified by the evidence on record and does not suffer from any infirmity whatsoever. Even defendant's witness Raghbir Singh DW2 who is brother and attorney of defendant admitted that the plaintiff is owner of the suit land. Moreover, defendant himself has not stepped into witness box and therefore, adverse presumption arises against him. Learned counsel for the appellant vehemently contended that defendant is in possession of the suit land since kharif 1991 crop and therefore, plea of the plaintiff in the suit that defendant took forcible possession of the suit land three years prior to the filing of the suit is false. Suit was instituted on 31.3.2003. The contention does not help the defendant – appellant in any manner. Perusal of the revenue record reveals that vide order dated 14.10.1993 Ex. P3 passed by Assistant Collector Ist Grade, khasra girdawari of the suit land was ordered to be corrected in favour of defendant with effect from kharif 1991 crop and pursuant to that order dated 14.10.1993, defendant's name appeared for the first time in the revenue record to be in possession of the suit land and prior to it plaintiff himself was recorded to be owner as well as in possession of the suit land in jamabandies as well as in khasra girdawaries. Be that as it may, mere long possession of the defendant would not disentitle the plaintiff who is owner Regular Second Appeal No. 575 of 2009 -4- of the suit land to seek possession of the suit land. Defendant's possession was not even for 12 years prior to the filing of the suit as even according to his evidence he came in possession of the suit land since kharif 1991 crop and the suit was instituted on 31.3.2003 i.e. within 12 years thereof. Even otherwise more possession for howsoever long period it may be, does not affect the right of the owner to seek possession of the property. Counsel for the defendant-appellant himself submitted that defendant has not taken the plea of acquiring ownership of the suit land by adverse possession. Consequently, the suit cannot be said to be time barred. The plaintiff being owner of the suit land and defendant being in possession thereof and having no right to retain possession thereof, suit of the plaintiff for possession of the suit land has been rightly decreed by the courts below. Learned counsel for the defendant-appellant vehemently contended that possession of the defendant over the suit land is as tenant and therefore, civil court has no jurisdiction to pass decree for possession of the suit land. The contention is completely misconceived and untenable. There is not even a whisper in the pleadings or evidence to the effect that the defendant is tenant over the suit land. On the contrary, the defendant himself pleaded that he is simply in possession of the suit land. The defendant did not plead that he is in possession of the suit land as tenant. In addition to it in grounds of first appeal preferred by the defendant he himself pleaded in paragraph 8 of the grounds that his possession is hostile, exclusive, open, continuous without interruption and peaceful to the knowledge of the plaintiff and the general public. This plea raised by Regular Second Appeal No. 575 of 2009 -5- defendant-appellant himself in the first appeal would again depict that he was never tenant over the suit land. In fact, plea of tenancy or bar of jurisdiction of the civil court was not raised by the defendant at any stage during trial of the suit. Revenue record also does not depict that defendant's possession over the suit land is as tenant. The aforesaid contention raised by the counsel for the appellant is, therefore, devoid of force and is accordingly negatived. For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by the courts below in favour of the plaintiff and against the defendant is the only finding that can be arrived at on the basis of evidence on record. The said finding is fully justified by the evidence on record and is not shown to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence so as to call for interference in exercise of second appellate jurisdiction. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) May 04, 2011 Judge 'dalbir'