RSA No.1365 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1365 of 1984 Date of Decision: 12.01.2010 Kartar Singh ..Appellant Vs. Gurbachan Singh & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.V.K.Kataria, Advocate, for the appellant. None for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J, (Oral) This regular second appeal is directed against the judgment and decree dated 31.1.1984 passed by the learned courts below vide which suit filed by the appellant-plaintiff for possession has been ordered to be RSA No.1365 of 1984 2 dismissed. The appellant sought possession of land measuring 83 kanals 1 marlas, situated in the area of village Goniana, Tehsil Muktsar on the pleadings, that the land in dispute was surplus land of defendants No.1 to 6. The Collector Ferozepore vide warrant of possession dated 26.8.1965 gave possession of the land to the plaintiff on 10.5.1972. Possession of the land was taken by the Government before handing over the possession to the plaintiff. Defendants No.1 to 6 being influential persons did not allow physical possession to be given to the plaintiff,therefore, his possession remained symbolic in the revenue papers. The case set up by the plaintiff was that defendants No.1 to 6 were still in possession of the land but had no right to continue in possession. Suit was contested by defendants No.1 to 3 on the plea that the plaintiff had failed to give full details of the property. Defendant No.5 was stated to be dead and it was pleaded that the suit against dead person was not competent. It was also pleaded case that the plaintiff had earlier filed a suit on the basis of report No.525 dated 10.5.1972 which was dismissed on 8.2.1979, therefore, the suit was barred by principles of res judicata. Defendants claimed to have purchased the property on the basis of their previous possession as tenant and that order in this connection was passed by the learned Assistant Collector, Muktsar on 1.6.1969. The defendants also took a stand that an amount of Rs.6929.56 P was paid in 10 instalments and that they had become owners of the suit land. Mutation was also sanctioned in their favour. It was claimed that the plaintiff cannot seek RSA No.1365 of 1984 3 possession of the land from them. Defendants No.4 and 6 filed a separate written statement by taking similar preliminary objections as taken by defendants No.1 to 3. They claimed that the possession was never delivered to the plaintiff nor the Government took possession of the suit land. Right of the plaintiff to get possession was denied. Narinderpal Singh legal representative of Hardial Singh also contested the right of the plaintiff/appellant to seek possession of the suit land. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiff has any title over the property in dispute? OPP 2. Whether the plaintiff has locus standi to file the present suit? OPP 3. Whether the possession of the property in dispute was ever delivered to the plaintiff? If so, its effect? OPP 4. Whether the plaintiff is entitled to the possession of the suit land? OPP 5. Whether the present suit is barred by the principles of res judicata as alleged in Para No.4 of the preliminary objection in written statement? OPD 6. Whether the defendants have purchased the property in dispute as alleged in Para No.5 of the preliminary objection in the written statement? If so, its effect? OPD RSA No.1365 of 1984 4 7. Whether defendant No.5 has died? If so, its effect? OPD 8. Whether the suit is maintainable in the present form? OPP 9. Whether the Civil Court has no jurisdiction to entertain and decide the present suit? OPD 10. Whether the suit of the plaintiff is within limitation? OPP 11. Whether the notice under section 80 CPC was required to be served on defendant No.7 before filing the suit? OPD 12. Whether the suit against defendant No.7 in the present form is not competent? OPD 13. Relief. On appreciation of evidence learned trial court on issues No.1 and 2 held that the plaintiff did not have any title to the property in dispute, and that the plaintiff/appellant had no locus standi to file the present suit. On issue No.3 it was held, that it is the case of the plaintiff, that possession was given to him, which was taken back after 2 years. On issue No.4 it was held that the plaintiff was not entitled to possession of the land. Issue No.5 was decided in favour of the plaintiff and against the defendants. On issue No.6 it was held that the defendants had purchased the property in dispute. Issue No.7 was also decided against the plaintiff holding that the suit filed was against dead person. On issue No.8 it was RSA No.1365 of 1984 5 held that the suit was maintainable in the civil Court. On issue No.10 it was held that the suit filed was not within limitation. The plaintiff could seek repossession of the property from which he was illegally dispossessed within six months of dispossession under section 6 of the Specific Relief Act. On issue No.11 it was held that it was not necessary to issue notice under section 80 of the Code of Civil Procedure and suit against defendant No.7 was not held to be competent. In view of the findings recorded the suit was dismissed. Appeal also failed. Learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration by this court:- 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of evidence and non-consideration of documentary and oral evidence brought on record? 2. Whether the suit for possession could be filed within 12 years of dispossession? In support of the substantial question of law, Mr.V.K.Kataria, learned counsel, for the appellant contended, that the plaintiff had placed on record Ex.PW 2/A showing that the land, after being declared surplus was allotted to him, and possession thereof was given to the plaintiff in the year 1972, whereas defendants No.1 to 3 claimed to have purchased the land in the year 1969 after it was declared surplus and therefore, they did not have RSA No.1365 of 1984 6 any valid title to dispossess the plaintiff. The contention of the learned counsel for the appellant, therefore, was that the courts below have misread the pleadings, evidence oral as well documentary to record finding on issue No.1 against the appellant. On consideration of the matter, I find no force in this contention. The case set up by the plaintiff was, that he was allotted land, the possession , however, was not given to him. Except for Ex.PW 2/A the plaintiff/appellant did not produce, any evidence showing payment of the the price of land so as to prove his title of ownership. Whereas, defendants No.1 to 3 not only proved the redemption but also factum of payment of price of the land in equal 10 instalments. Findings of the learned courts below, therefore, cannot be said to be outcome of misreading or non-reading of relevant evidence as contended. The first substantial question of law is answered against the appellant. The contention of the learned counsel for the appellant, on second substantial question of law, was that the suit for possession by owner of the land could be filed within 12 years. Once the possession was shown to have been given to the plaintiff in 1972, though symbolic he could claim actual possession within a period of 12 years therefrom, and that the learned courts below committed an error in holding that the suit filed by the appellant was barred by limitation. This contention of the learned counsel deserves to be noticed, to be rejected, for the simple reason that the case set up by the plaintiff in the plaint as well as in the evidence was that the plaintiff after having been RSA No.1365 of 1984 7 given possession was dispossessed after 2 years. Once a specific plea was taken that he was dispossessed from the possession then the learned learned courts were right to apply Article 58 of the Limitation Act read with Section 6 of the Specific Relief Act as repossession could be claimed by the plaintiff within 6 months of dispossession. The second substantial question of law framed above is also answered against the appellant. No merit. Dismissed. (Vinod K.Sharma) 12.01.2010 Judge rp