RSA No.2588 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2588 of 2010 (O&M) Date of decision: 7.10.2010 Pardeep ......Appellant(s) Versus Bijender Singh @ Vijender Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vivek Suri, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal of the plaintiff- respondent was accepted and suit filed by him for possession of the suit land was decreed. As per the averments, the plaintiff-respondent claimed that he is owner of the suit property and has made construction over its western portion measuring 4 marlas whereas remaining 4 marlas of land on the eastern portion is vacant. The defendant-appellant in the month of December, 2002 requested him, to allow the use of the house for a short period. Considering the difficulties and hardship of the appellant, he agreed to give his house for a short period presuming that the appellant shall vacate it after departure of his relatives. However, the appellant did not vacate the suit property in spite of repeated requests. Since the appellant had no concern, interest or title with regard to the suit property, he was liable to be evicted and the plaintiff-respondent was entitled to the possession. The plaintiff-respondent also claimed mesne profits for the RSA No.2588 of 2010 (O&M) 2 unauthorized use and occupation of the suit property. Upon notice, the defendant-appellant appeared and resisted the suit and filed written statement raising various preliminary objections. On merits, he denied the ownership and possession of the plaintiff- respondent over the suit property. It was pleaded that forefathers of the appellant had taken possession of the suit land and had got permanently settled therein. It was specifically stated that the suit land was occupied by the father of the appellant in June, 1970 and immediately thereafter, construction was made and he started living therein. The plaintiff was well aware of the construction of the house by the defendant's father and it was also known to the original owner of the suit property, namely, Mangli Ram son of Tula Ram. It was further submitted that the defendant-appellant had become owner in possession of the suit property by way of adverse possession. It was further pleaded that the plaintiff-respondent in collusion with Mangli Ram had procured a Will dated 28.6.2002 in order to grab the suit property and the same does not confer any right upon the plaintiff- respondent because the defendant had already become owner of the suit property. Denying other allegations, dismissal of the suit was prayed. After considering the evidence on record and hearing learned counsel for the parties, the trial Court held that the alleged Will in favour of the plaintiff-respondent was not proved and the defendant-appellant had become owner in possession of the suit property by way of adverse possession and resultantly, the suit of the plaintiff was dismissed. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court which was accepted. While accepting the appeal, the Lower Appellate Court observed that the plaintiff-respondent had claimed the suit property on the basis of Will which was proved in accordance with law and the RSA No.2588 of 2010 (O&M) 3 appellant was not related to the testator of the Will at all. The Lower Appellate Court further found that the appellant-defendant could not prove successfully that he had become owner in possession of the suit property by way of adverse possession. While accepting the appeal, the Lower Appellate Court observed as under: “The learned trial Court discussed the entire evidence on the record of the case, which by misreading of evidence erroneously arrived at the conclusion that the respondent has become the owner of the suit property by way of adverse possession. As discussed earlier, the learned trial Court could not have ignored the Will Ex.P1 merely on the ground that the natural sons have been ignored by the testator in favour of the appellant because, in the present case, the respondent is totally a stranger whereas the appellant is related to Mangli Ram. Secondly, it is not the respondent who had entered upon the suit property in the year 1970 as discussed in the argument of the appellant side as it is the case on behalf of the respondent that his father, who is very much alive, had entered upon the suit property and if any claim has to be raised, it has to be by the father of the respondent, Kitab Singh and not the respondent Pardeep. The respondent at the time of the alleged entry by way of adverse possession to the knowledge of the true owner, where recognition of ownership is a sine qua non of the principle of adverse possession, has to highlight the specific date, month and year and the respondent in the month of June, 1970 was hardly a boy of 5-10 years RSA No.2588 of 2010 (O&M) 4 old. If his father had taken or entered to occupy, the plead of adverse possession is not available to the respondent Pardeep during his lifetime. Moreover adverse possession has to be proved from the best possible evidence available on record and in the preset case, the only revenue record, produced by the parties is in form of the jamabandi of the year 1997-98 Ex-P3 which much to the opposition of the respondent shows Mangli to be recorded owner in possession of the suit property and thus, the period of 12 years, which has to be proved from the month of June 1970, onwards, has nowhere been proved on record of the case and neither the respondent nor his father have been proved to be in possession over the suit property from 1970 till 1998 and since the onus was upon the respondent to show and prove his ownership by way of adverse possession and he has failed to do so, it has to be believed that the possession of the respondent over the suit property was permissive possession when the respondent contacted the appellant in the month of December, 2002 and requested him to use the suit property for a short period for his relatives who had come from outside. Since the appellant had newly acquired ownership of the suit property on the basis of the Will dated 28.12.2002, he gave it to the respondent, who now wants to remain in forcible occupation thereof depriving the appellant of his right of ownership in the suit property and considering the case from any angle, the appellant has a much RSA No.2588 of 2010 (O&M) 5 better title to the suit property tha that of the respondent who has miserably failed to prove his ownership by way of adverse possession. It has nowhere been proved that the respondent or his father entered the suit property and remained in possession thereof to the knowledge of the true owner in an open, hostile and continuous manner for a period more than 12 years and thus, the learned trial Court gavely erred incoming to the conclusion that the respondent has become the owner of the suit property by way of adverse possession which is finding which cannot be sustained in the eyes of law. A person who claims prescription of title by way of adverse possession must plead and establish all facts necessary to establish his possession and in the instant case, had the respondent been in open and continuous possession, assert title in himself against the whole world and that the appellant had not taken any steps to exercise due vigilance in order to arrest the time running against him, only then, the respondent could have been considered to have been successfully proved his case and not otherwise.” Aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal: “(i) Whether the judgment and decree dated 24.2.2010 passed by the Lower Appellate Court is tenable in the eyes of law? RSA No.2588 of 2010 (O&M) 6 (ii) Whether the respondent can take the benefit of the weakness of the defence? (iii) Whether the Ld. Lower Appellate Court was justified in misreading the evidence? (iv) Whether the possession of the appellant is adverse to that of the respondent?” In support of his appeal, learned counsel for the appellant has vehemently argued that the Lower Appellate Court has erred at law while recording a finding against the appellant as there was ample evidence on the record to prove possession of the appellant over the suit property which was open, continuous and hostile to the plaintiff-respondent. According to the learned counsel for the appellant, he was in adverse possession of the suit land since the time of his forefathers, which was occupied by his father in the year 1970 and therefore, the judgment and decree of the Lower Appellate Court is liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgment and decree. The only question which is to be decided by this Court in the present case is whether the appellant has become the owner of the suit property by way of adverse possession or not. The Lower Appellate Court on reappreciation of evidence and after noticing the fact that the appellant has failed to establish all the facts necessary to establish his title on the plea of adverse possession, has non- suited him. Now before this Court on the basis of the argument raised and the substantial questions of law framed as noticed above, the only substantial question of law which is sought to be raised is “whether the findings of the Lower Appellate Court are perverse.” RSA No.2588 of 2010 (O&M) 7 The question of possession is essentially a question of fact. It is well settled that a person who claims title by way of adverse possession, has to plead and prove all facts necessary to establish his possession. However, in the present case, the appellant has not given any specific date, month or year of his adverse possession which was to the knowledge of the true owner. Except Ex.P-3 i.e Jamabandi for the year 1997-98 in which Mangli Ram has been shown to be in possession of the suit property, there is no other documentary evidence from which period of 12 years of the possession of the appellant can be proved. The onus was upon the appellant to show a proof of his ownership by way adverse possession and he has failed to do so. Moreover, it is his own case that his adverse possession started in June 1970 when his father came into possession. However, undisputedly his father is alive who has not raised any such claim. In this view of the matter, it cannot be held that the findings of the Lower Appellate Court are perverse warranting interference of this Court in the regular second appeal. No substantial question of law arises in this appeal. Dismissed. October 7, 2010 (RAKESH KUMAR GARG) ps JUDGE