RSA No.3585 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3585 of 2010(O & M) Date of Decision:17.09.2010 Gurmit Singh & anr. .... appellants Versus Gurdip Singh & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sandeep Singh Deol,Advocate for the appellants Mr.H.S.Baath, Advocate for the respondents **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgement and decree of the Lower Appellate Court whereby suit for joint possession of the property in dispute with consequential relief of injunction has been decreed in favour of the plaintiff-respondent. As per the averments, plaintiffs along with defendants No.3 to 6 were the owners of suit land. Defendants No. 1 and 2 alleged to have purchased land from the plaintiffs,but, the aforesaid fact is incorrect. They have committed fraud and got khasra No.29/3 in the sale deed entered and an FIR was also registered against them. Now, defendants No. 1 and 2 were threatening to alienate the suit land for which they had no right. Hence the present suit. Upon notice, defendants No.1 and 2 raised various RSA No.3585 of 2010(O & M) 2 preliminary objections. On merits, it was submitted that the plaintiffs- respondents have never challenged their possession and they have perfected their title by efflux of time. All other material averments were denied and dismissal of the suit was prayed for. In the replication, the averments made in the written statement were denied and those of the plaint were re-affirmed. From the pleadings of the parties, the following issues were framed: (i) Whether the plaintiffs along with defendants No. 3 to 6 are owners of land measuring 11 Kanals 7 Marlas? OPP (ii)Whether the plaintiffs are entitled to joint possession of land measuring 11 Kanals 7 Marlas as detailed in the head note of plaint/OPP (iii)Whether the defendants No. 1 & 2 are liable to restrain from the suit property? OPP (iv)Whether the suit is bad for non joinder of necessary parties? OPP (v)Relief. The trial Court dismissed the suit of the plaintiff-respondent. However, on an appeal, the Lower Appellate Court accepted the appeal and decreed the suit filed by the plaintiff-respondent. While accepting the appeal, the Lower Appellate Court observed as under: “The present appellants/plaintiffs sought a decree for joint possession of the land measuring 7 Kanals 11 Marlas bearing Khata Khautoni No. 127/437 comprising Khasra No. 29//3(7-11), as per jamabandi for the year 1990-91 by claiming themselves alongwith defendants No. 3 to 6 as owners of the said land. The defendants No. 1 & 2 RSA No.3585 of 2010(O & M) 3 appeared and filed written statement alleging that during life time of Vir Singh and Jagir Singh sons of Sher Singh their legal heirs never challenged the possession of the vendees qua the suit land and thus, the defendants No. 1 & 2 have perfected their title by efflux of time. The defendants/respondents in support of their claims produced sale deed dated 7.4.58 as Ex. D1. Perusal of the said sale deed reveals that khasra No. 29/13(7-11) was not the subject matter of the sale by virtue of said sale deed. As per copy of jamabandi for the year 1990-91 Ex. P2, there is reference regarding sanction of mutation No. 2275 in respect of sale of Khasra No. 29//3(7-11) by Harnam kaur, Mohindo, Jindo, Joginder and Gurdip in favour of Vir Singh and Jagir Singh. Said mutation however is not supported by any sale deed. As I have discussed khasra no. 29/3 was never the subject matter of the sale deed Ex. D2. If that was so, then the entries reflecting the sale of khasra No. 29//3 in the jamabandi for the year 1990-91 issued on 3.4.2001 were wrong. Perusal of the subsequent jamabandis for the year 1995-96 Ex. D4, for the year 2000-01 Ex. D5, though depict the possession of Vir Singh son of Sher Singh over the said Khasra number but only as a Gair marusi, a tenant at will. The entries reflected in a jamabandi Ex. P2 regarding sale of khasra No. 29//3 since are not supported by any document of title, therefore, these entries were made illegally by the revenue official. Gurmit Singh son of Vir Singh while appearing as DW1 has also admitted so in the cross examination that khasra No. 29/3 was not part of sale deed dated 7.4.58. He further admitted that mutation No. 2275 RSA No.3585 of 2010(O & M) 4 has since been set aside by Commissioner, Jalandhar vide orders dated 7.5.01. That being the position, the true owner cannot be deprived of the suit land merely by making fake entries in the revenue record. The entry relating to mutation No. 2275 was reflected for the first time in the jamabandi for the year 1990-91 and the instant suit was filed on 15.6.2001. The requisite period thus had not elapsed for perfecting the title of defendants no. 1 & 2 by way of adverse possession, if at all, plea of adverse possession as raised by defendants/respondents No. 1 & 2 is considered.” The Lower Appellate Court, on re-appreciation of evidence has recorded a finding of fact that the appellants have failed to prove their plea of adverse possession. The question of possession is essentially a question of fact and the same has been determined against the appellants on the basis of evidence on record. It is well settled that, if, on appreciation of evidence two views are possible and the court below has taken one possible view, the High Court will not interfere in the impugned judgement and decree exercising its jurisdiction under Section 100 of CPC. Thus, no interference is warranted in the judgement and decree of the Lower Appellate Court. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 17.09.2010 neenu