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2004 DIGILAW 372 (PNJ)

Amar Singh v. Deepinder Singh

2004-03-25

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the judgments and decrees passed by the Courts below holding that the plaintiff-respondents arc owner of the property in dispute and are entitled to claim possession of the same. It has further been held that defendant-appellants have failed to prove that Radha Rani their vendor had purchased the suit property vide sale deed dated 27.4.1972 executed by Mallan Devi. Earlier Mallan Devi had purchased the same property vide sale deed dated 27.10.1956. The findings of the Courts below further are that the defendant-appellants have also failed to prove their adverse possession. 2. With regard to issue Nos. 4, 5, 5A, 5B and 5C the lower Appellate Court in para 15 of its judgment has observed that the onus to prove these issues was placed on defendant-appellants and the issues were not pressed before the lower appellate Court. On that basis the findings recorded by the trial Court on those issues have been upheld. 3. Brief facts of the case are that the plaintiff-respondents filed a Civil Suit No. 80 on 10.1.1988 for possession in respect of the suit land asserting that he is owner of the same. It was alleged that defendant-appellants were in illegal possession of the suit land which was against the rights of the plaintiff respondents. The averment made in the plaint further showed that defendant-appellants have entered into possession of the suit land about three years before the filing of the suit and the plaintiff-respondent being owner of the suit land is entitled to get back its possession. 4. The stand taken by the defendant-appellants in the written statement was that the suit was hit by the principles of resjudicata as Civil Suit No. 611 dated 29.9.1989 titled as Radha Rani v. Rajinder Singh was earlier filed and decided on 7.9.1994 in favour of Radha Rani from whom the defendant-appellants have purchased the site in dispute. The plaintiff-respondents did not file any appeal against the judgment and decree dated 7.9.1994 and the same had attained finality. Some other objections like that the suit was bad for non joinder of necessary parties; all the co-sharers have dot been impleaded; the site in dispute is abadi land and petrol pump has been installed on it were raised. The plaintiff-respondents did not file any appeal against the judgment and decree dated 7.9.1994 and the same had attained finality. Some other objections like that the suit was bad for non joinder of necessary parties; all the co-sharers have dot been impleaded; the site in dispute is abadi land and petrol pump has been installed on it were raised. It was also asserted that the plaintiff-respondent by his own act and conduct is estopped from filing the suit although he was never in possession of the site in dispute nor he ever resisted possession of the defendant-appellants. The location of the land in dispute has also been disputed asserting that demarcation would be necessary. It is pertinent to mention that the land was purchased by Mallan Devi vide sale deed dated 27.10.1956 who had raised some construction over it. Mallan Devi allegedly sold the land to Radha Rani from whom the defendant-appellants have purchased it in the year 1990. Defendant-appellants are alleged to have made huge construction over the site although petrol pump was allegedly installed in the year 1956. It has been asserted that in any case the defendant-appellants have become owner of the site in dispute by way of adverse possession as the possession was hostile and was known to the while world. 5. On the pivotal issue No. 2 namely whether the defendant-appellant has purchased the suit property vide sale deed dated 27.4.1972 executed in favour of Radha Rani by Mallan Devi (earlier Mallan Devi had purchased the same land vide sale deed dated 27.10.1956) both the Courts below have concurrently found that defendant-appellants, vendees of the land from Radha Rani, did not purchase 11388 sq, ft. plot from her because Mallan Devi herself had purchased a small portion of land vide sale deed dated 27.10.1956. The view of the learned lower appellate Court on the aforementioned issue read as under: "I have considered the above rival contentions raised on behalf of both the parties. Admittedly, the marked documents cannot be considered in evidence. But even if for argument sake, it is taken into evidence the claim of the appellants-defendants that Bhag Singh, Thana Singh and Binder Singh have sold 2 kanals of land to Mallan Devi vide registered sale deed dated 27.10.1956. Said Mallan Devi stepped into the shoes of Bhag Singh and others. The land purchased by her was described as Killa Nos. Said Mallan Devi stepped into the shoes of Bhag Singh and others. The land purchased by her was described as Killa Nos. 140 and 141. Thereafter, Bhagwan Dass son of Mallan Devi sold land measuring 11388 sq. ft. to Radha Rani vide sale deed copy of which is mark B. If Radha Rani has sold land that area cannot be taken as 11388 sq. ft. Radha Rani did not get mention khasra No. 9 of the land which was purchased by her from said Mallan Devi. Khasra numbers were not given deliberately. There was litigation between Radha Rani and Rajinder Singh. Said Radha Rani filed a suit and claimed that she is owner of 11,388 sq. ft. of land alongwith petrol pump in question. Vide judgment Ex.D2 Radha Rani failed to get declaration that she is owner of land measuring 11,388 feet and her claim partly was decreed to the extent that she is owner of petrol pump and building alongwith 8400 sq. feet of plot on which the petrol pump was installed. Her claim with regard to the remaining portion was declined vide the above said judgment copy of which is Ex.D2. The claim of Rajinder Singh was accepted by the Court and said Rajinder Singh is plaintiff-respondent in this case. Remaining land measuring 16 marlas located at the side of petrol pump was held to be owned and possessed by said Rajinder Singh. The appellants-defendants have relied upon the document Ex.D2 but the same is not of much help to them. Their claim is that they have purchased the land from Radha Rani and have stepped into the shoes of Radha Rani. Admittedly, Bhag Singh etc. sold only two kanals of land to Mallan Devi and said Mallan Devi was competent to sell only two kanals of land, which was purchased by her to Radha Rani. Similarly, Radha Rani could pass title to the appellants defendants of land measuring 2 kanals and not more than that. As discussed above, it has also been held that said Radha Rani, was in possession of 8400 sq. feet plot alongwith petrol pump and building over it. So, it was not held that Radha Rani purchased the plot measuring 11388 sq. feet from Mallun Devi. Once it is held by the competent Court that Radha Rani was not owner of the plot more than the area of 8400 sq. feet plot alongwith petrol pump and building over it. So, it was not held that Radha Rani purchased the plot measuring 11388 sq. feet from Mallun Devi. Once it is held by the competent Court that Radha Rani was not owner of the plot more than the area of 8400 sq. feel so she was not competent to pass better title of the plot in dispute more than her ownership to the appellants-defendants." 6. On the question whether defendant-appellants have become owner by virtue of adverse possession which was issue No. 3, and whether the plaintiff-respondent was owner of the suit properly and was entitled to possession thereof, being issue No. 1, the findings recorded are that the defendant-appellants have failed to establish their adverse possession. After referring to the statement of DW 2 APS Ahluwalia, Sr. Sales Officer, Bharat Petroleum, DW3 Basant Singh, Registration Clerk, DW4 Devinder Kumar, Deed Writer and DW5 Bhagat Singh, defendant-appellant; the sale deed dated 20.3.1990 Ex.P6 executed by Radha Rani, defendant-respondent No. 2, the learned tower appellate Court held as under: "Admittedly, the land in dispute was adjoining the petrol pump and Radha Rani started using this plot. No construction was raised over the spot, but with the passage of time the same was treated as part of plot and when Radha Rani purchased the area of petrol pump she got included the area of the plot in dispute in the sale deed. Therefore, she filed a suit in the Civil Court but the Court declined her relief and her suit was decreed to the extent of 8400 sq. ft. Appellants defendants when purchased the petrol pump from Radha Rani, then they also got mentioned the area of 11,388 sq. ft. in the Sale Deed instead of 8400 sq. feet which was purchased by Radha Rani from Mallan Devi and was decreed in her favour in the above said suit. Ajay Kumar, PW2 has appeared and admitted the claim of the respondent-plaintiff, he has also admitted that by mistake, they encroached upon the area of respondent plaintiff. So adverse possession of the appellants defendants over the plot in dispute has not been established from the evidence available on file. From the documentary evidence i.e. Jamabandi and Khasra Girdawari, it is established that the respondent plaintiff is owner of the property in dispute and entitled to claim the possession of the same. So adverse possession of the appellants defendants over the plot in dispute has not been established from the evidence available on file. From the documentary evidence i.e. Jamabandi and Khasra Girdawari, it is established that the respondent plaintiff is owner of the property in dispute and entitled to claim the possession of the same. Thus, from the evidence available on file it is clearly established that the plaintiff is owner of the suit property and he is entitled to possession thereof, whereas the appellants defendants have failed to prove that Radha Rani has purchased the suit property vide sale deed dated 27.4.1972 executed by Mallan Devi. which in turn was purchased by Mallan Devi vide sale deed dated 27.10.1956, The appellants-defendants have also failed to prove their adverse possession." 7. Mr. S.C. Nagpal, learned counsel for the defendant-appellants has argued that before the lower appellate court issue Nos. 4, 5, SA, 5B and 5C were not given up and specific plea has been raised in the grounds of appeal dated 5.8.2000, placed on record in respect of the afore-mentioned issues. The learned counsel has argued that once the defendant-appellants have raised these issues in the written statement and have led evidence, there was no plausible reason for them to give up these issues. On the basis of the afore-mentioned submission, the learned counsel has contended that it should be taken that the arguments on issue Nos. 4, 5, 5A, 5B and 5C were raised and the learned lower appellate Court is incorrect in recording that these issues were not pressed. 8. I have thoughtfully considered the submissions made by the learned counsel and am of the view that by raising a plea in the memorandum of appeal would not necessarily lead to the conclusion that the same was pressed at the time of arguments by the learned counsel representing the party. There is nothing on the record to suggest that the arguments on issue Nos. 4, 5, 5A, 5B and 5C were raised and the lower appellate Court has committed a lapse by not considering those arguments. It appears to be well settled that the plea set up in the memorandum of appeal if not pressed at the time of hearing would be deemed to have been given up. 4, 5, 5A, 5B and 5C were raised and the lower appellate Court has committed a lapse by not considering those arguments. It appears to be well settled that the plea set up in the memorandum of appeal if not pressed at the time of hearing would be deemed to have been given up. It is not possible to raise any other inference because once the plea has not been raised before the lower appellate Court no arguments would be required to be addressed by the opposite side. I am further of the view that there is presumption of correctness attached to the official record of the Courts under Section 80 of the Indian Evidence Act, 1872. 9. Shri S.C. Nagpal, learned counsel for the defendant-appellants has then prayed that some time be given to file an affidavit of the counsel who conducted the case before the lower appellate Court to substantiate his submission that in fact the plea on issue Nos. 4, 5, 5A, 5B and 5C were raised and have not been considered. 10. I have duly considered the afore-mentioned submission of the learned counsel and find no justification for granting this prayer because once the Court has expressed its opinion on the issues raised before it, the filing of the affidavit by the counsel before the lower Appellate Court would lack bona fide. Had there been an error committed by the lower appellate Court with regard to the observations made in para 15 that the issue nos. 4, 5, 5A, 5B and 5C have not been pressed then this would have been the foremost ground set up supported with an affidavit of The counsel. Moreover, the trial Court has considered the plea of resjudicata on merits by holding that this plea is not available to the defendant-appellant because the pleadings in the earlier case and the copies of the issues have not been produced on the file. After perusing the judgment and decree Ex.D2 and D3 it has been found that plea of Radha Rani, predecessor-in-interest of defendant-appellant regarding possession of land measuring 11388 sq. ft. was declined and she was held to be owner of only 8400 sq. ft. of plot. The plaintiff-respondent has raised the dispute with regard to 16 marlas of land fully described in the heading of the plaint. ft. was declined and she was held to be owner of only 8400 sq. ft. of plot. The plaintiff-respondent has raised the dispute with regard to 16 marlas of land fully described in the heading of the plaint. Therefore, even the principle of resjudicata as such would not be applicable and the onus to prove that issue was on the defendant-appellants which they have miserably failed to discharge. For the reasons recorded above, this appeal fails and the same is dismissed.