RSA No. 1231 of 2006 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1073 of 2008 Date of decision: March 9 ,2009 Smt. Ramwati and others ..Appellants. Versus Dagarmal and others ..Respondents Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr.S.S.Swaich, Advocate for the appellants .. Rakesh Kumar Garg,J. This is defendant's second appeal challenging the judgment and decree of the lower Appellate Court whereby the appeal of the plaintiff- respondents has been accepted and his suit for possession of suit land has been decreed. Briefly stated, Gauri Shankar son of Ram Sukh brought this suit with averments that he is one of the co-owners of the land in question which was given to Rawat Singh father of defendant-appellant Mukh Ram alias Mukha on lease of payment of Rs. 2/- per year. On death of Rawat Singh lease had come to an end. The defendants were in illegal possession of the suit land. They were requested several times to hand over the possession but to no effect. Hence the present suit. Defendant/appellant filed written statement and contested the suit of the plaintiffs by taking various preliminary objections. On merits, it was averred by the defendant that plaintiffs were not the owners in possession of the suit property and defendant was owner in possession of the suit property by way of adverse possession. He denied that suit land was ever taken on lease from plaintiff by his father. It was stated that the possession of his father was hostile to the owner and after his death he became owner in possession of the suit RSA No. 1231 of 2006 2 property. His father was wrongly joined in the column of possession as gair marusi in the revenue record. The defendant had become owner in possession of the suit property by way of adverse possession therefore, no question arises to evict him from the suit land. Dismissal of the suit was prayed for. On perusing the evidence on record and hearing learned counsel for the parties, the trial Court held that plaintiff was a co-sharer in the suit property. However, he was held not entitled to possession and the suit was dismissed. Feeling aggrieved therefrom the judgment and decree of the trial Court, the plaintiff-respondent filed an appeal which was accepted by the District Judge, Narnaul vide impugned judgment and decree dated 13.9.2007. While accepting this appeal, the lower Appellate Court observed as under:- “ Ex.P4 is the copy of jamabandi for the year 1991-92 in which plaintiff Gori Shankar, along with others, has been recorded to be the owner of land measuring 2 kanals comprised in Khasra No. 253 and Rawat Singh (father of defendant) has been shown to be in possession as a gair marusi. There is entry of lagan @ Rs. 2/- per year in column No.10. Similar entries exist in the copy of jamabandi for the year 1996-97 which is Ex.P5. Though entries in the revenue record go to show that father of the defendant had been in possession of the land in question since the year 1976-77 there is absolutely no cogent evidence on the file to prove that the defendant has become the owner thereof by adverse possession. To repeat, the father of the defendant has been shown in possession in the capacity of gair marusi and there is also an entry of payment @ Rs. 2/- per year in the jamabandi. Ex.P2 is the copy of notice got served by the plaintiff on the defendant prior to the institution of the suit under Section 106 of the Transfer of Property Act and there is no dispute that this notice had been RSA No. 1231 of 2006 3 received by the defendant. As seen above Satish Kumar Clerk of Shri Kirori Lal Advocate, who had dispatched the notice, has been examined as a witness as PW2. Even defendant Mukh Ram (DW1) admitted in the cross-examination that he had received the notice. He, however, asserted that he did not send any reply because the land in question had not been taken on lease. When the plaintiff is a co-owner of the land in question and there are entries of lease in the revenue record and the lease has been terminated by the plaintiff and the plea of adverse possession raised in the written statement does not stand established, I am inclined to agree with the contention of learned counsel for plaintiffs(L. Rs of plaintiff Gori Shankar) that they have become entitled to the possession of this land. Accordingly,I reverse the findings of learned trial Court on issues No.2 and 3 and hold that the plaintiffs are entitled to a decree of possession.” Still not satisfied, the defendant has filed this appeal challenging the judgment and decree of the lower Appellate Court. Learned counsel for the appellants has vehemently argued that the lower Appellate Court has reversed the findings of the trial Court without giving any cogent reasons and which were wholly improper, as it is settled law that the appellate Court is required to address all the issues and decide the appeal upon assigning of cogent reasons and thus the judgment and decree of the lower appellate Court cannot be sustained and the same is liable to be set aside. In support of his case, learned counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in the case of Chinthamani Ammal Versus Nandagopal Gounder 2007(2) Law Hearld (SC) 1237. I have heard learned counsel for the appellant. There is no dispute with the proposition of law as laid down by the Hon'ble Supreme Court in Chinthamani Ammal's case (supra). However, the aforesaid judgment of the Hon'ble Supreme Court of India is not applicable in the facts and circumstances RSA No. 1231 of 2006 4 of the case. In the present case, the courts below have recorded a finding of fact that plaintiff-respondent is recorded as a co-sharer in the suit land. Undisputedly, the appellant is claiming his title to the suit property on the plea of adverse possession which has not been proved. By taking the plea of adverse possession, the appellant has admitted the ownership of the plaintiff-respondent over the suit property and therefore, the plaintiff-respondents are entitled to the possession of the suit land. Thus no fault can be found with the judgment and decree of the lower Appellate Court. No substantial question of law arises. Dismissed. March 9,2009 (RAKESH KUMAR GARG) nk JUDGE