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2003 DIGILAW 983 (PNJ)

Surinder Singh Sibia v. Indermohan Singh

2003-07-18

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below. Both the Courts have passed a decree in favour of the plaintiff-respondents by rejecting the counter claim made by the defendant-appellant holding that the plaintiff- respondents are entitled for permanent injunction restraining the defendant- appellant from interfering in their peaceful possession of the plot measuring 125x275 - 146x275. The counter claim praying for decree of possession of the land specified in the site plan by demolishing the wall made by the defendant-appellant has been rejected. 2. The trial Court recorded a firm finding on issue No. 1, 2, 3, 4, 5 and 6 holding that the defendant-appellant has failed to prove the ownership of the land in possession of the plaintiff-respondents by alleging that they have encroached upon the area more than what they had purchased in the year 1963. The trial Court also found that no document has been produced on record showing the total area, which is actually owned by the defendant-appellant. According to the trial Court, the best evidence with the defendant-appellant was to prove a demarcation report clearly showing how much area is encroached upon by the plaintiff-respondents and how much area actually belongs to him. No such demarcation was got effected. No evidence has been proved on record regarding ownership nor the defendant-appellant knows how much area the plaintiff-respondents have purchased vide sale deed dated 10.10.1963 from Siri Kaur. 3. The lower appellate court concurred with the findings and held that it was obligatory for the defendant-appellant to prove his ownership over the property in dispute. The argument that the plaintiff-respondents were owner of the property to the extent of 125x275 only and has encroached upon by taking possession of the property 125x275 - 146x275 was rejected. The reliance on Ex.D-1 placed by the defendant-appellant was also not accepted by the lower appellate court because no document has been produced to show that the defendant-appellant was owner of the property in dispute. The view of the learned lower appellate Court read as under :- "As far as the counter claim is concerned, it was obligatory for the appellant to prove his ownership over the property in dispute, which he has not. The view of the learned lower appellate Court read as under :- "As far as the counter claim is concerned, it was obligatory for the appellant to prove his ownership over the property in dispute, which he has not. Although a lot of stress was given by the learned counsel for the appellant that the respondent was owner to the extent of 125x275 only but the respondents have taken possession upon 125x275 - 146x275 of land and have illegally encroached upon the land shown in red colour in the site plan Ex.D1 and even if for the sake of argument, it is proved on record that this property was encroached by the respondents, then where is the evidence led by the appellant to prove that he was owner of the property in dispute. No such document has been produced on record from which it could be proved that the appellant is the owner of the property in dispute or he was ever owner of the property in dispute. 4. The learned Additional District Judge also rejected the argument of the defendant-appellant that once the plaintiff-respondents have taken the plea of adverse possession then the defendant-appellant should be deemed to be the owner on the ground that the property in dispute was owned by Maharaj Kumar Barjinder Singh from whom the plaintiff-respondents have taken the possession under an agreement to sell dated 10.1.1965. In these circumstances, the learned Additional District Judge held that the claim of possession could only be made by the owner and not by the defendant-appellant. Therefore, it was held that the plea of adverse possession would not result into admission on the part of the plaintiff-respondents that the defendant-appellant is the owner. 5. Mr. G.S. Sandhawalia, learned counsel for the defendant-appellant has argued that once the plea of adverse possession is raised by the plaintiff- respondents against the defenedant-appellant, then the question of proving ownership by him would not arise because such a plea could be set up only against the true owner, which indirectly stood admitted. The learned counsel has further submitted that both the Courts below have failed to take into consideration the copy of Aks Sajra Iftkhar of the land owned by the ancestors of the defendant-appellant namely Sardar Gobinder Singh. 6. I have thoughtfully considered the submissions made by the learned counsel and do not find any substance in those submissions. The learned counsel has further submitted that both the Courts below have failed to take into consideration the copy of Aks Sajra Iftkhar of the land owned by the ancestors of the defendant-appellant namely Sardar Gobinder Singh. 6. I have thoughtfully considered the submissions made by the learned counsel and do not find any substance in those submissions. The plea of adverse possession set up by the plaintiff-respondents is not an admission of ownership of the defendant-appellant because it is clearly mentioned by the plaintiff-respondents that the owner is Maharaj Barjinder Singh. Ordinarily, the principle canvassed by the defendant-appellant is correct that plea of adverse possession would amount to admission of ownership. The question of adverse possession is a mixed question of law and facts as has been held in Dr. Mahesh Chand Sharma v. Raj Kumar Sharma, 1996(8) SCC 128. It is true that ordinarily the admission of ownership of the other party is implicit in such a plea as opined by the Supreme Court in Vidya Devi v. Prem Parkash, 1995(4) SCC 496. But in the present case, the admission of ownership is in favour of Maharaj Barjinder Singh and not that of the defendant-appellant. Therefore, no fault can be found with the findings of facts and the same are not open to challenge under Section 100 of the Code. 7. The other argument that the Aks Sajra has not been taken into consideration would not require any detailed consideration because no such argument has either been raised before the lower appellate court or before the trial Court. The grounds of appeal filed before this Court also do not raise any such arguments. Therefore, the appeal is without merit and is, thus, liable to be dismissed. For the reasons aforementioned, this appeal fails and the same is dismissed. Appeal dismissed.