Mange Ram And Others vs Rajbir Singh And Others on 25 August, 2009

RSA No. 616 of 2004 (O&M)                   1


            IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH

                               RSA No. 616 of 2004 (O&M)

                               Date of Decision: August 25, 2009


Mange Ram and others                                     ...... Appellants

      Versus

Rajbir Singh and others                                  ...... Respondents


Coram:      Hon'ble Mr. Justice Ajay Tewari


Present:    Mr. Jagat Singh, Advocate
            for the appellants.

            Mr.R.K,.Gupta, Advocate
            for respondent No.1.

            Mr. N.R.Dahiya, Advocate
            for respondents No.3, 4, 6, 8, 18, 24, 27, 28, 29, 34, 35, 37, 38,
            39, 40, 41,51, 46 and 59.

                  ****

1. Whether Reporters of local papers 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?


Ajay Tewari, J.

This appeal has been filed against the judgment and decree of

the learned lower Appellate Court reversing that of the trial court and

thereby decreeing the suit filed by the plaintiff-respondents for declaration

that they are joint owners in possession with the appellants in the land in

dispute.

The following questions have been proposed:-

i) Whether the suit is prima facie time barred and the learned
RSA No. 616 of 2004 (O&M) 2

first Appellate Court has taken wrong approach to the entire
matter on record?

ii) Whether the learned First Appellate Court has reversed the
judgment of learned trial court on perverse ground and
without any cogent reasons?

iii)Whether the plaintiff cannot be a co-sharer of the land in
dispute on the facts and circumstances of the case and
whether the plaintiff is not entitled for the decree of
possession and declaration in respect of the lease deed
executed on 20.10.1998 after more than 12 years?

iv)Whether the plaintiff is not entitled for any relief and the suit
has correctly been dismissed by the learned trial court and
the findings recorded by the learned trial court are liable to
be restored and affirmed and the findings recorded by the
learned First Appellate Court are liable to be set aside?

Questions No. (i) and (iii) are related. The argument is that the

plaintiff-respondents had not pleaded that they were co-sharers with the

appellants and thus could not have been held to be so. However, I find that

the learned lower Appellate Court has held the appellants as well as the

plaintiff-respondents to be co-sharers on the basis of a specific plea in this

regard taken in the written statement by the appellants themselves as well as

on the basis of the evidence. Learned counsel for the appellants has not

disputed these facts.

In the circumstances I find no infirmity with the finding of the

learned lower Appellate Court that the appellants and the plaintiff-

respondents are co-sharers in the land. Once this is held, the decision on

question No. (i) which has been taken by the learned lower Appellate Court

also has to be affirmed. The learned lower Appellate Court has noticed that

in the Jamabandies right from 1959 to 1995 the appellants and the plaintiff-
RSA No. 616 of 2004 (O&M) 3

respondents were recorded as co-owners in the land. The plea of adverse

possession could not be established and in view of these continuous entries

the suit could not have been held to be barred by limitation. Questions No.

(ii) and (iv) are pure questions of fact. Learned counsel has not been able to

persuade me that the findings thereon are either based on no evidence or

based on such misreading of the evidence so as to render them perverse.

Consequently this appeal as well as the application for stay are

dismissed. No costs.

                                                   (AJAY TEWARI)
                   `                                   JUDGE

August 25, 2009
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