RSA No.4239 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4239 of 2009 Date of Decision: 02.08.2010. Lal Singh and others .……Appellants Versus Birsha Ram and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Jagdish Manchanda, Advocate for the appellants. L. N. MITTAL, J (ORAL) This is second appeal by defendants (except defendant No.2, who has been impleaded as proforma-respondent No.2). Suit was filed by Birsha Ram respondent No.1 alleging that he is owner of Gair Mumkin Abadi land measuring 1 kanal 13 marlas comprised of khasra No.167 in Village Karkhana and the defendants illegally and forcibly occupied the suit land and constructed some building and walls on it. Possession of defendants over the suit land is illegal and unauthorized and without any title. Accordingly, the plaintiff sought relief of vacant possession of the suit land. Defendants inter alia pleaded that the plaintiff and his father Jaimal vide writing dated 05.09.1983 sold the suit land to defendant No.7 for Rs.6000/- and since then defendant No.7 is in possession of the suit land as bona fide purchaser and he constructed his house. His possession over the suit property is RSA No.4239 of 2009 -2- continuous since 05.09.1983 i.e for more than 19 years before the filing of the suit and, therefore, defendant No.7 has become owner of the suit land by adverse possession. Counter claim was also made to declare defendant No.7 to be owner in possession of the suit property and for correction of revenue entries standing in the name of the plaintiff. Learned Additional Civil Judge (Senior Division), Safidon vide judgment and decree dated 15.02.2008 found the plaintiff to be owner of the suit land, but still dismissed the plaintiff's suit as also the counter claim filed by the defendants. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Jind vide judgment and decree dated 23.10.2008 and thereby suit filed by the plaintiff has been decreed directing the defendants to handover vacant possession of the suit land to the plaintiff. Feeling aggrieved, defendant Nos.1 and 3 to 7 have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Plaintiff has produced revenue record since 1963-64 depicting that earlier Nagar Panchayat was owner of the suit land, but the same was in possession of plaintiff's father Jaimal. Thereafter mutation No.281 Ex.P-8 was sanctioned on 08.07.1964 in favour of Jaimal and since thereafter Jaimal was recorded to be owner in possession of the suit land and after his death, plaintiff was recorded to be owner in possession thereof. Necessary mutation was also sanctioned in favour of plaintiff and others, after the death RSA No.4239 of 2009 -3- of Jaimal. From this consistent revenue record, it is proved that plaintiff is owner of the suit land. In addition to the aforesaid, defendants have themselves pleaded that they purchased the suit land from the plaintiff and his father Jaimal. It would depict that even defendants admit that plaintiff was owner of the suit land. However, defendants have failed to prove that they have purchased the suit land from Jaimal or the plaintiff. Defendants have relied on a writing Ex.D-1 dated 05.09.1983 regarding sale of a Bara for Rs.6000/- in favour of defendant No.7. However, the said writing could not convey any title to the purchaser because sale of immoveable property worth Rs.100/- or upwards could be effected only by registered sale deed. Admittedly there is no registered sale deed in favour of any defendant. Consequently, on the basis of aforesaid writing, it cannot be said that defendant No.7 purchased the suit land or that it is owned by him. In addition to the aforesaid, writing Ex.D-1 is not proved to be pertaining to the suit land. No Khasra number of the Bara allegedly purchased by defendant No.7 through the aforesaid writing has been mentioned in the said writing whereas it is not in dispute that the suit land is comprised of khasra No.167. Consequently, it cannot be said that the writing Ex.D-1 pertains to the suit land. Moreover, the said writing purports to have been executed not only by Jaimal, but also by Banwari and Turti regarding alleged sale of Bara to defendant No.7. However, it is not even the case of defendants in the written statement that defendant No.7 purchased RSA No.4239 of 2009 -4- the suit land from Jaimal, Banwari and Turti. On the other hand, the case of the defendants is that defendant No.7 purchased the suit land from plaintiff and Jaimal. Moreover, there is no document on record to depict that Banwari and Turti had any share in the suit land. On the other hand, according to revenue record, earlier plaintiff's father Jaimal was exclusive owner and after his death, plaintiff is owner thereof. Consequently, writing Ex.D-1 executed by Banwari, Turti and Jaimal could not pertain to the suit land when Banwari and Turti had no share in the suit land. It may be added that Banwari is father of defendant Nos.1 and 2 and Turti is father of defendant Nos.3 and 7 whereas defendant Nos.4 to 6 are sons of defendant No.3. The plea of adverse possession pleaded by defendant No.7 also cannot be accepted, when according to version of the defendants, the alleged possession of defendant No.7 was permissive pursuant to writing dated 05.09.1983. In any event, writing dated 05.09.1983 Ex.D-1 does not pertain to the suit land and consequently it cannot be said that defendant No.7 is even in possession of the suit land since 05.09.1983 or for more than 12 years preceding the filing of the suit. It would also not be out of place to notice that the trial Court dismissed the counter-claim of the defendants based on their plea that defendant No.7 had become owner of the suit land by adverse possession. No first appeal was preferred by defendants against judgment and decree of the trial Court. Consequently, finding of the trial Court against the defendants on their aforesaid RSA No.4239 of 2009 -5- plea has attained finality. Consequently, defendants have no right to retain possession of the suit property of which the plaintiff is proved to be owner. Thus examined from any angle, it is fully established that plaintiff is owner of the suit land and defendants are in illegal and unauthorized possession thereof and, therefore, plaintiff is entitled to possession of the suit land. Plea of defendants that defendant No.7 has become owner of the suit land by adverse possession is not substantiated at all. Finding recorded by the lower appellate Court, which is final Court of fact, is based on proper appreciation of evidence and is supported by cogent reasons and is fully justified and, therefore, the said finding does not warrant any interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be devoid of any merit and is accordingly dismissed in limine. 02.08.2010. ( L. N. MITTAL ) A. Kaundal JUDGE