RSA No.2209 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2209 of 2006 Date of Decision: 16.11.2009 Charanjit Singh .....Appellant Vs. Gurdial Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Amarjit Markan, Advocate for the appellant. Mr.Sanjiv Manrai, Advocate for the respondents. .... RAJIVE BHALLA, J The appellant challenges a judgement and decree dated 16.2.2006, passed by the Additional District Judge (Adhoc) Fast Track Court, Sangrur, accepting the appeal filed by the respondents setting aside the judgement and decree dated 9.12.2000, passed by the Civil Judge (Senior Division) Sangrur and as a consequence decreeing the suit filed by the respondents. The plaintiffs/respondents filed a suit for declaration of their ownership and for possession of the suit land. The respondents pleaded that the suit land was originally owned by Sahib Singh. After him his sons Booja and Leekal became owner. As they died issueless, the land devolved upon their mother Raj Kaur. After the demise of Raj Kaur, the respondents RSA No.2209 of 2006 2 inherited the land as collaterals of Raj Kaur. As the defendant/appellant is in unauthorised occupation, a decree be passed for declaration of ownership and for possession of the suit land. In response, the appellant filed a written statement admitting the ownership of Raj Kaur but denied the other averments. The appellant pleaded that Raj Kaur died more than 12 years ago. The appellant is in possession for the last more than 12 years and has perfected his title by adverse possession. On the basis of the pleadings, the trial court framed the following issues :- “1. Whether Raj Kaur succeeded the suit property from his son Likal Singh as alleged in the plaint ? OPP. 2. Whether the plaintiffs are the natural heirs of Late Raj Kaur and are entitled to inherit her ? OPP. 3. Whether the plaintiffs are the owners of the suit property ? OPP. 4. Whether the plaintiffs are entitled to possession of the suit property ? OPP. 5. Whether the plaintiff has no locus standi and cause of action to file the present suit ? OPD. 6. Whether the suit of the plaintiff is time barred ? OPD. 6A. Whether the defendant has become owner of the suit property by way of adverse possession ? OPD. 7. Relief.” RSA No.2209 of 2006 3 After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that though Raj Kaur died issueless, the respondents could not claim ownership as they had failed to prove that Dalip Singh S/o Narain Singh who is a preferential heir as per the Kursinama Ex.P-7 had passed away. The trial court also held that as the appellant is a tenant, he cannot be dispossessed, from the suit land, except in due course of law. Aggrieved by the aforementioned judgement and decree, the respondents filed an appeal. Vide judgement and decree dated 16.2.2006, the first appellate court accepted the appeal, set aside the judgement and decree passed by the trial court and decreed the suit. The first appellate court held that as the appellant is admittedly a trespasser, he cannot be heard to urge that in the absence of any proof of the passing away of Dalip Singh, the respondents cannot claim possession of the suit land. The finding that the appellant is a tenant was set aside, as it was contrary to the pleadings and the revenue record. It was also held that the appellant has failed to establish his ownership by adverse possession. Counsel for the appellant submits that Dalip Singh S/o Narain Singh, is concededly a preferential heir. In order to succeed in their suit, the respondents were required to prove that Dalip Singh had passed away. In the absence of any evidence to prove the death of Dalip Singh, the first appellate court could not have held that the respondents are owners of the suit land. It is further submitted that the first appellate court has committed an error in holding that the appellant is a trespasser. It has failed to peruse the revenue record, which clearly establishes that the appellant is in possession as a tenant. It is prayed that in view of these errors committed by RSA No.2209 of 2006 4 the first appellate court, the appeal be allowed. Counsel for the respondents, on the other hand, submits that the appellant admittedly is a trespasser, as in his written statement, he has pleaded ownership by way of adverse possession. The first appellate court, therefore, held that as the appellant has pleaded ownership by adverse possession, he cannot deny the ownership of the respondents. It is further submitted that the first appellate court has rightly held that the respondents rights would be subject to the rights of Dalip Singh, if alive. It is prayed that as the first appellate court has not committed any error of law and as no substantial question of law arises for adjudication, the appeal be dismissed. I have heard learned counsel for the parties, perused the impugned judgement and decree and considered the questions of law framed by counsel for the appellant but express my inability to hold that the impugned judgement raises any substantial question of law. Admittedly, the appellant is an unauthorised occupant, who claims to have perfected his title by adverse possession. By raising a plea that he has perfected his title, by adverse possession, the appellant has, in essence, admitted the ownership of the plaintiffs/respondents. The appellant's plea of ownership by adverse possession was rightly rejected by the first appellate court as he failed to plead or prove the essential ingredients of a plea of adverse possession namely: long, uninterrupted, hostile, possession to the exclusion of the possessory and proprietary rights of the true owner. Concededly, the appellant has no right, title or interest in the suit land. At no stage of the proceedings, whether in the written statement or in his evidence has the appellant pleaded or proved his status as a tenant. The first appellate court, therefore, rightly reversed the findings recorded by the trial court that the RSA No.2209 of 2006 5 appellant is a tenant in possession. The plea that as the Kursinama Ex. P-7, records one Dalip Singh as a preferential heir, the respondents cannot succeed till they prove that Dalip Singh has passed away, has to be rejected. The first appellate court has rightly held that if at any stage, Dalip Singh appears or is found to be alive, he would be well within his right to claim a preferential right, of inheritance in accordance with law. The first appellate court was, therefore, conscious of the fact that Dalip Singh is a preferential heir and has, therefore, rightly protected his rights. The appellant being rank trespassers, cannot be heard to urge that the respondents have no right to seek possession of the suit land. In view of what has been stated herein above, as no substantial question of law arises for adjudication,the appeal is dismissed. No costs. 16.11.2009 (RAJIVE BHALLA) GS JUDGE