RSA No. 3639 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3639 of 2008 Date of decision: March 16,2011 Vijay Kumar ..Appellant Versus Ajay Kumar and others ..Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present: Mr. Lokesh Sinhal,Advocate for the appellant. Mr. Adarsh Jain, Advocate for respondent Nos.1 and 2 ... L.N.Mittal,J.(Oral) By this common order, I am disposing of three appeals, i.e., RSA No.3639 of 2008 and RSA No. 3640 of 2008, both titled Vijay Kumar Versus Ajay Kumar and others, and RSA No.3641 of 2008 titled Vijay Kumar Versus Sanjay Kumar and others. All these three appeals are between the same parties, who are heirs of Baldev Parkash. The parties are three sons, a daughter and widow of Baldev Parkash. Sanjay Kumar and Ajay Kumar (sons of Baldev Parkash) filed Civil Suit No. 643 of 2000 for partition of a residential house and a double storeyed shop alleging that Baldev Parkash was owner in possession thereof. He died on 13.1.1996. Both the plaintiffs and all the three defendants being his natural heirs inherited the suit property in equal shares, i.e., 1/5th share each. Partition of the suit property was claimed accordingly. Defendant Nos.1 and 2 Pushpa Devi and Vijay Kumar (widow and a son of Baldev Parkash) only contested the suit, whereas defendant No.3 (Renu Bala), who is daughter of Baldev Parkash, was proceeded ex parte. Defendant Nos.1 and 2 pleaded that defendant No. 1 Smt. Pushpa Devi RSA No. 3639 of 2008 2 became exclusive owner of the shop by adverse possession, whereas it was admitted that parties to the suit have inherited the disputed house in equal shares from Baldev Parkash. Defendant No.1 claimed to be in exclusive possession of the shop since the year 1977 as owner. Various other pleas were also raised. Learned Civil Judge (Junior Division), Palwal vide judgment and decree dated 26.4.2006 decreed the plaintiffs' suit and passed preliminary decree of partition holding each party to be owner to the extent of 1/5th share in both the properties. First appeal preferred by Vijay Kumar, defendant No. 2 in the said suit, has been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 8.5.2008. Feeling aggrieved, defendant No.2 Vijay Kumar has filed RSA No. 3640 of 2008. Sanjay Kumar filed Civil Suit No. 659 of 2000 regarding double storeyed shop only making same averments that all the parties have 1/5th share each therein having inherited from Baldev Parkash. Plaintiff sought permanent injunction restraining the defendants from alienating the disputed shop. Defendant Nos.1 and 2, i.e., Pushpa Devi and Vijay Kumar contested the suit on the same grounds and pleaded that defendant No.1 had become owner of the disputed shop by adverse possession being in adverse possession thereof since the year 1977 as owner. It was also pleaded that defendant No.1 had transferred the disputed shop to defendant No.2 by way of decree dated 6.6.1998 passed in Civil Suit No. 159 of 1998. Plea regarding the said decree necessitated the filing of the third suit. Defendants No.3 and 4 (Ajay Kumar and Renu Bala) were given up. Learned Civil Judge (Junior Division), Palwal vide judgment and decree dated 26.4.2006 decreed the plaintiff's suit. First appeal preferred by Vijay Kumar defendant No.2 in the said suit has been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 8.5.2008. Feeling aggrieved, Vijay Kumar defendant No.2 has filed RSA No. 3641 of RSA No. 3639 of 2008 3 2008. Third suit No. 1094 of 2002 was filed by Ajay Kumar and Sanjay Kumar regarding double storeyed shop only alleging that all the parties are joint owners in possession of the disputed shop to the extent of 1/5th share each having inherited from Baldev Parkash and the decree dated 6.6.1998 suffered by Pushpa Devi defendant No.2 in favour of Vijay Kumar defendant No.1 regarding the said shop is null and void because defendant No.2 was not exclusive owner of the disputed shop and therefore, she could not transfer its ownership in favour of defendant No.1. It was alleged that defendant Nos.1 and 2 had only 1/5th share each in the disputed shop. Defendant No.3 Renu Bala daughter of Baldev Parkash was proceeded ex parte in the suit, whereas defendant Nos.1 and 2, i.e., Vijay Kumar and Pushpa Devi contested the suit on the same ground that defendant No.2 Pushpa Devi had become owner of the disputed shop by adverse possession being in exclusive possession thereof since the year 1977 as owner. Decree dated 6.6.1998 suffered by her in favour of defendant No.1 is, therefore, legal and valid. Learned Civil Judge(Junior Division), Palwal vide judgment and decree dated 26.4.2006 decreed the said suit. First Appeal preferred by defendant No.1 Vijay Kumar has been dismissed by learned Additional District Judge, Faridabad vide judgment and decree dated 8.5.2008. Feeling aggrieved, Vijay Kumar, defendant No.1 has filed RSA No. 3639 of 2008. I have heard learned counsel for the parties and perused the case file. In so far as the disputed house is concerned, there is no dispute that the said house is a jointly owned by the parties to the extent of1/5th share each. Consequently, suit for partition regarding the said house has been rightly decreed. The dispute in all the three suits remained regarding disputed double storeyed shop only. It is, however, undisputed that at one stage, Baldev RSA No. 3639 of 2008 4 Parkash was owner of the disputed shop. Present five parties, i.e., all the three sons, a daughter and wife of Baldev Parkash are his only natural legal heirs. Accordingly, they inherited the disputed shop also from Baldev Parkash in equal shares i.e., 1/5th share each. Defendant Nos.1 and 2, i.e., Pushpa Devi and Vijay Kumar have miserably failed to depict that Pushpa Devi had become owner of the disputed shop by adverse possession. Even otherwise, Pushpa Devi wife of owner Baldev Parkash could not be in adverse possession of the disputed shop unless it was established by clear facts and circumstances that she claimed her alleged possession to be hostile and adverse to that of her husband. However, there is no reliable evidence to prove the aforesaid plea that Pushpa Devi became owner of the disputed shop by adverse possession. Consequently decree dated 6.6.1998 suffered by her in favour of Vijay Kumar regarding the entire disputed shop has been rightly declared to be null and void and not binding on the rights of the remaining parties. Pushpa Devi could transfer her 1/5th share only in the disputed shop to Vijay Kumar but could not transfer the shares of remaining parties, i.e., Sanjay Kumar, Ajay Kumar and Renu Bala. Faced with the aforesaid situation, learned counsel for the appellant pointed out that in first appeals, appellant had moved applications for amendment of written statements to plead that in a suit filed by Pushpa Devi against Baldev Parkash, the latter admitted by way of compromise and statement made in court in that suit that Pushpa Devi was owner of the disputed shop. It was also sought to be pleaded that Pushpa Devi constructed the shop in the year 1977 after getting building plan sanctioned from Municipal Committee and then let out the same to one Kailash Chand and later got it vacated from the said tenant through Court. The said amendment applications were dismissed by the lower Appellate Court on the same date on which the appeals were dismissed although by separate orders. Applications for additional evidence to produce documents in support of the proposed amended pleadings moved in the first appeals were also dismissed by the lower Appellate Court. It is contended that applications for amendment of written statement and for additional evidence RSA No. 3639 of 2008 5 should have been allowed. The contention has been opposed by the other side. Learned counsel for the appellant stated that the suit filed by Pushpa Devi against Baldev Parkash, in which the latter by way of compromise and statement made in Court allegedly admitted Pushpa Devi to be owner of the disputed shop, was ultimately dismissed in default. Consequently, merely on the basis of alleged admissions, Pushpa Devi could not become owner of the disputed shop in the absence of any decree passed in that suit. Possibly Baldev Parkash might be back tracking from the alleged admissions and therefore the suit was got dismissed in default by Pushpa Devi. Moreover, ownership of the shop could not be transferred by Baldev Parkash to Pushpa Devi merely by making statement in Court. Consequently, applications for amendment of written statements and additional evidence were rightly dismissed by lower Appellate Court. There is concurrent finding by the courts below that Pushpa Devi had not become owner of the disputed shop by adverse possession. The said finding is justified by evidence on record and is supported by reasons recorded by the lower Courts. The said finding is not shown to be perverse or legal in any manner nor it is based on misreading or mis-appreciation of evidence. Consequently, the said finding does not warrant interference in second appeals. No question of law, much less substantial question of law, arises for determination in these second appeals. Except the said finding, there is no other grievance in these appeals. Consequently, all the three appeals are meritless and are, therefore, dismissed. March 16,2011 (L.N.MITTAL) nk JUDGE