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 3received 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