Ashraf And Others vs Suleman And Another on 6 March, 2009

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH.

                                        R.S.A. No.2262 of 2006 (O&M)
                                        Date of Decision: 6.3.2009

            Ashraf and others.
                                           ....... Appellants through Shri
                                                   Anil Kumar,Advocate for
                                                   Shri R.M.Singh, Advocate.


                  Versus

            Suleman and another.
                                          ....... Respondents through Nemo.


      CORAM: HON'BLE MR.JUSTICE MAHESH GROVER

                                 ....

            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 the Digest?

                                 ....

Mahesh Grover,J.

C.M.No.5484-C of 2006

The application is allowed and the delay of 28 days in filing of

the appeal is condoned.

R.S.A.No.2262 of 2006

This appeal is directed against the judgments and decrees dated

12.11.2003 and 16.12.2005 passed respectively by the Civil Judge (Junior

Division), Palwal (hereinafter described as `the trial Court’) and the

Additional District Judge (Ad hoc) -cum- Presiding Officer, Fast Track

Court No.III, Faridabad (referred to hereinafter as `the First Appellate

Court’) whereby the suit and the appeal of the plaintiffs-appellants have

been dismissed.

The appellants filed a suit for possession and also prayed for
R.S.A.No.2262 of 2006 (O&M)

-2-

….

injunction on the ground that they are owners in possession of the suit

property which was detailed in the plaint. It was pleaded that the suit

property originally belonged to one Hazari son of Jom Khan, who died on

27.9.1996 and after his death, the appellants had inherited the same and

mutation no.1663 was sanctioned in their favour and the defendants-

respondents have no right or title over it, yet, they were trying to interfere in

the same and consequently, the suit was filed.

The respondents appeared and filed their written statement

denying the averments made by the appellants. It was pleaded that they were

in peaceful possession of the suit property for the last more than thirty years

and since it was open and hostile to the knowledge of the owner, they had

become owner of the suit property by way of adverse possession. It was

further pleaded that they had constructed residential house over the suit

property and were residing therein and the appellants had no right or title

over the same. The mutation no.1663 on the basis of which the appellants

were claiming ownership possession over the suit property did not pertain to

khasra no.78 which is in dispute.

Both the parties went to trial on the following issues:-

1. Whether the plaintiffs are owners in possession of Gait as

detailed in para no.1 of the plaint?OPP

2. Whether the suit property has been inherited by the

plaintiffs under mutation no.1663 after the death of

Hazari?OPP
R.S.A.No.2262 of 2006 (O&M)

-3-

….

3. Whether the plaintiffs have no locus standi to file the

present form?OPD

4. Whether the suit of the plaintiffs is not maintainable in the

present form?OPD

5. Whether the plaintiffs are estopped by their own act and

conduct to file the present suit?OPD

6. Whether the defendants are owners in possession of the suit

property by way of adverse possession?OPD

7. Relief.

On appraisal of the evidence adduced by the parties, the trial

Court came to the conclusion that there was no evidence to suggest that the

appellants were owners of the suit property and accordingly, their suit was

dismissed.

In appeal, the findings of the trial Court were affirmed.

Hence, this Regular Second Appeal.

Learned counsel for the appellants has contended that the

findings of the Courts below are perverse and, therefore, they deserve to be

reversed.

No one has appeared on behalf of the respondents.

After hearing the learned counsel for the appellants and

perusing the record, I am of the opinion that the appeal is totally devoid of

any merit.

The appellants have claimed ownership and possession over the

suit property on the basis of mutation no.1663 which was sanctioned on
R.S.A.No.2262 of 2006 (O&M)

-4-

….

4.10.1996 in their favour after the death of original owner -Hazari on

27.9.1996. It is a settled principle of law that mutation itself does not create

any title or right in favour of an individual. There is no other material from

which it can be inferred that after the death of Hazari, the appellants

inherited the suit property as is the case set up by them. In this view of the

matter, the pure findings of fact recorded by both the Courts below cannot

be faulted with.

No substantial question of law arises for determination in this

appeal, which is dismissed.

March 06,2009                                    ( Mahesh Grover )
"SCM"                                                Judge