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2007 DIGILAW 1319 (PNJ)

Kishan Chand v. Satya Devi

2007-07-11

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - C.M. No. 426-C of 2007. For the reasons stated in the application, the order dated 14.5.2007 is recalled and the case is restored to its original number. C.M. stands allowed. R.S.A. No. 1890 of 1984 2. This order will dispose of RSA Nos. 1890 and 1919 of 1984 arising out of the judgment and decree dated 5.4.1984 passed by the learned Additional District Judge, Hoshiarpur, vide which two appeals were consolidated and disposed of together. 3-4. Kishan Chand appellant herein filed a suit for declaration to the effect that he was full owner in possession of 9 kanals 11 marlas of land comprised in Khasra Nos. 999, 1000, 1001 and 1002 and 1019 as described in the headnote of the plaint and the second suit was filed by Smt. Satya Devi, for possession of land measuring 11 kanals 1 marla. Kishan Chand alleged in his suit that the land measuring 9 kanals 11 marlas was purchased by his father in auction during the execution of the decree obtained by one Salig Ram against the ancestors of Smt. Satya Devi and Smt. Bhag Devi, defendants in the year 1928. A sale certificate was obtained in this regard. It was claimed that since 1930, father of Kishan Chand and subsequently Kishan Chand himself has been in possession of the property as full and exclusive owner. In the alternative plea of adverse possession was also taken by Kishan Chand. However, in the cross suit filed by Smt. Satya Devi, her allegations were that Shri Kishan Chand, who was first claiming himself to be tenant of the suit land, forcibly took possession of the same. 5. The learned trial Court came to the conclusion that Shri Kishan Chand was owner of 2 kanals 8 marlas of land comprised in khasra No. 1000(1-0), 1001 (1-5), 1002-min (0-3) under the sale certificate. However, his plea of adverse possession and occupancy rights in respect of remaining land was rejected. The suit filed by him was accordingly decreed for 2 kanals 8 marlas and suit filed by Smt. Satya Devi for possession was partly dismissed i.e. with respect to 2 kanals 8 marlas while it was partly decreed for the remaining land. Against the judgment of the trial Court, two appeals were filed which were disposed of by a common judgment. 6. Against the judgment of the trial Court, two appeals were filed which were disposed of by a common judgment. 6. The learned lower Appellate Court affirmed the findings recorded by the learned trial Court and dismissed both the appeals. 7. It may be noticed here that before the learned lower Appellate Court the appellant restricted his claim qua adverse possession in respect of 2 khasra numbers only i.e. 1019(3-7) and 812 (1-10). The learned lower Appellate Court observed that so far as claim of khasra No. 812 was concerned, the claim of the appellant could not be accepted as the possession of Shri Kishan Chand or his father was not proved. It was held on the basis of evidence brought on record that possession of Kishan Chand over khasra No. 812 over 12 years could not be established when the suit was instituted in the year 1980. The contention of the appellant with regard to his possession over one Kanal Barani land comprised in khasra No. 1019 was rejected by observing as under :- "It was argued that at least possession over one Kanal Barani land comprised in Kh. No. 1019 is established. Of course, this part of the land is capable of possessing by a person other than the owner. But here it is note-worthy that it is not alleged that since when the adverse possession of Kishan Chand started. He has been recorded to be in permissive possession. Though the other party does not admit him to be its tenant, but still it is for Kishan Chand to prove that since when he started claiming himself to be owner. This vague plea that Kishan Chand was treating himself to be owner for the last many years would not be sufficient. Possession howsoever long cannot confer any title on the occupant unless it is shown that it was adverse to the real owner for more than 12 years." 9. Mr. G.S. Jaswal, learned counsel, appearing on behalf of the appellant, raised the following questions of law :- "(1) Whether the learned Courts below have misread the evidence to come to the conclusion that the appellant has failed to prove his adverse possession ? (2) Whether the findings recorded by the learned Courts below are perverse and, therefore, liable to be reversed ? (2) Whether the findings recorded by the learned Courts below are perverse and, therefore, liable to be reversed ? (3) Whether a Marusi can be treated as tresspasser and be ordered to be evicted/dispossessed in a suit for declaration/possession without resorting to the provisions of Section 77 of the Punjab Tenancy Act ?" Mr. G.S. Jaswal, learned counsel for the appellant contended that the learned Courts below have misread the evidence brought on record showing that the appellant was in possession of the property and his title was adverse to true owner. The plea of the learned counsel for the appellant was that in support of his contention, he had placed on record copies of jamabandis for different years which were duly exhibited as Exhibits P-2 to P-7. In addition, copy of khasra girdwari produced on record was also exhibited as Exhibit P-8. The contention of the learned counsel for the appellant, therefore, was that the finding recorded by the learned lower Appellate Court is perverse. 10. There is no force in this contention. It may be noticed that the learned counsel for the appellant did not challenge the findings of the learned trial Court in toto, rather his claim was restricted only to two khasra number i.e. 1019(3-7) and 812(1-10). His claim was rejected by the learned lower Appellate Court in view of the evidence brought on record. The finding recorded by the learned lower Appellate Court is in consonance with the evidence brought on record. Even otherwise, the learned lower Appellate Court rightly observed that the appellant had failed to prove his adverse possession. The plea being totally vague was, therefore, rightly rejected. The finding recorded by the learned lower Appellate Court cannot be said to be either outcome of misreading of evidence or perverse as is sought to be contended by the learned counsel for the appellant. Consequently, both the substantial questions of law i.e Nos. 1 and 2 raised by the learned counsel for the appellant are decided against the appellant and in favour of the respondent. 11. As regards 3rd question of law, the same is liable to be rejected straightaway as no such pleas was raised in the Courts below nor any such issue was framed. It is not open to the appellant to make out altogether a new case which is neither based on pleadings nor any evidence was led in support thereof. 11. As regards 3rd question of law, the same is liable to be rejected straightaway as no such pleas was raised in the Courts below nor any such issue was framed. It is not open to the appellant to make out altogether a new case which is neither based on pleadings nor any evidence was led in support thereof. Consequently, the question so raised does not arise for consideration in these appeals. For the reasons stated above, there is no merit in these two appeals which are accordingly dismissed. Appeals dismissed.