R.S.A. No.2548 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2548 of 2008 Date of Decision:22.10.2008 Avtar Singh .....Appellant Vs. Jaspal Kaur .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Amit Rawal, Advocate for the appellant. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 28.4.2008 passed by the Court of learned Additional District Judge, Ludhiana whereby he dismissed the appeal preferred against the judgment/ decree dated 11.9.2006 rendered by the Court of learned Civil Judge (Junior Division), Ludhiana vide which he dismissed the suit with costs. The facts in brief are that Niranjan Singh, grandfather of the plaintiff was owner of the land measuring 1 kanla 7 marlas as described in the plaint. He suffered decree dated 15.1.1991 in favour of the plaintiff qua a Hall measuring 22 X 84 feet. On the basis of the decree, the ownership of land was transferred in the name of the plaintiff who took the possession and opened a cycle repair shop in one room. The defendant forcibly occupied the property by using her influence in the local police. She also filed a civil suit and secured an ex parte decree dated 2.2.1995 against the plaintiff. The possession of the defendant over the suit land is illegal and unauthorised as she was not in possession as tenant at the time of securing R.S.A. No.2548 of 2008 -2- the ex parte decree. The disputed property is unfit and unsafe for human habitation. The roof has fallen down. The defendant has sold the iron girders without consent of the plaintiff. The walls have developed cracks due to neglect by the defendant who has now left the possession of the disputed property without intimation to the plaintiff and has started leaving in another house in the village. She is thus liable to pay damages to the plaintiff. The plaintiff requested the defendant to vacate the property and to deliver the possession thereof and to settle the rent but she refused. On these allegations, the suit has been filed for possession of property measuring 1/5th share out of 1 kanal 7 marlas as delineated in the headnote of the plaint. In her written statement, the defendant has inter-alia pleaded that the suit for possession without claiming relief of partition is not maintainable; that the decree dated 15.1.1992 is not binding on the defendant; that the suit is hopelessly time barred . As alleged, Niranjan Singh never remained in possession since 1974 till the date collusive decree was obtained by the plaintiff and after that date, the plaintiff never remained in possession. The pleadings are vague and evasive as no date, month and year has been mentioned as to when Niranjan Singh handed over the vacant possession. The property in dispute is not in the ownership of the plaintiff. The possession of the defendant over the land in dispute is not illegal or unauthorised. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed:- 1) Whether the suit is bad for the purpose of court fee and jurisdiction? (OPD) 2) Whether the suit is not maintainable? (OPD) 3) Whether the suit is bad for non-joinder of necessary R.S.A. No.2548 of 2008 -3- parties? (OPD) 4) Whether the decree dated 15.1.1991 passed by Sh. G.K.Rai, Senior Sub Judge Ist Class, Ludhiana is not binding upon the defendant? (OPD) 5) Whether Avtar Singh was minor at the time of filing of the suit before the court of Sh. G.K.Rai, Sub-Judge Ist Class, Ludhaina? (OPD) 6) Whether the suit is barred by limitation? (OPD) 7) Whether the plaintiff is entitled to possession, as prayed for? (OPP) 8) Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court dismissed the suit. Feeling aggrieved therewith, the plaintiff went up in appeal, which was also dismissed by the Court of learned Additional District Judge, Ludhiana. Being undaunted and dissatisfied therewith, he has preferred this appeal. I have heard the learned counsel for the plaintiff- appellant, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Amit Rawal, Advocate representing the appellant strenuously urged that the suit property mentioned in the judgment and decree Ex.D.4 and D.5 is entirely different from the judgment and decree dated 15.1.1991 Ex.P.1. That mutation No.2191 which has been reflected in the copy of the jamabandi for the year 1994-1995 Ex.P.2 qua ¼ share has been proved on record and has gone unrebutted. The Courts below have gravely erred in holding that the plaintiff has nowhere been shown to be in R.S.A. No.2548 of 2008 -4- exclusive possession in any part of the land while referring to Ex.P.2. Though a cursory glance through this document would reveal that the appellant has been shown to be owner of the land measuring 1 kanal 7 marlas. There is nothing to show that this property was in joint ownership with the other co-sharer. I have given a deep and thoughtful consideration to these submissions. The plaintiff- appellant has filed the suit for possession of the property measuring 1/5th share out of 1 kanal 7 marlas as described in the headnote of the plaint. It is his own plea in the plaint itself that the defendant has now left the possession of the property in dispute. It implies that she has ceased to be in possession of the same. Furthermore, this fact has been admitted by PW2 Gurmail Kaur. On these premises, the learned trial Court has observed that “Since the defendant is not in possession of the land in dispute as admitted by the plaintiff in his plaint and by PW2 Gurmail Kaur in her deposition, therefore, no decree for possession against the defendant can be passed being not in possession over the property in dispute even at the time of filing the present suit.” These findings have been affirmed by the First Appellate Court. Ostensibly, the same cannot be faulted with. This apart, no substantial question of law arises for determination by this Court in this appeal. Consequently, this appeal is dismissed. October 22, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No