Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 148 (PNJ)

Amrik Singh v. Daljinder Singh

2010-01-08

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. The application is allowed as prayed for. C. M. Nos.11615-C and 11616-C of 2009 and R. S. A. No.3797 of 2009 This Regular Second Appeal is directed against the judgments and decrees dated 19.8.2008 and 8.5.2009 passed respectively by the Additional Civil Judge (Senior Division), Fatehgarh Sahib (hereinafter described as `the trial Court) and the Additional District Judge, fatehgarh Sahib (referred to hereinafter as `the first appellate Court). Since it is barred by limitation, C. M. No.11615-C of 2009 has been moved for condonation of 65 days delay in its filing, whereas C. M. No.11616-C of 2009 has been filed for staying the operation of the impugned judgments during the pendency of. . . . the appeal. 2. The plaintiffs-respondent nos.1 to 3 filed a suit against the defendants -appellants and proforma respondent nos.4 and 5 for separate possession by way of partition of the land measuring 13 marlas comprised in khewat No.261, Khatoni No.350, Khasra No.99, situated in village Mansoorpur, tehsil Khamanon, District Fatehgarh Sahib. The property in question pertains to the estate of one Surjit Singh alias Surjan Singh after whose death it was inherited by his three sons, namely, Mewa Singh, Sadhu Singh and Nasib Singh in equal shares. Thereafter, the suit property was inherited by the plaintiffs and defendants being the sons of Mewa Singh, Sadhu Singh and Nasib Singh and are co- sharers therein. 3. It was alleged by the plaintiffs that the suit property had not been partitioned and since the defendants had refused to partition the same, they were constrained to the file the suit. Upon notice, the defendants appeared and filed written statement contesting the suit. They had pleaded that the property in question had already been partitioned in the year 1972 between the father of plaintiff nos.1 and 2 and husband of plaintiff no.3, namely, Mewa singh and Nasib Singh and Sadhu Singh sons of Surjan Singh. The oral partition was effected between the parties and the possession thereof was transferred in the year 1972 itself and thereafter they were in settled possession of the same. The disputed property which is comprised in khasra no.99 (measuring 13 marlas) was given to Nasib Singh and he had constructed a house thereon. . . . . 4. The oral partition was effected between the parties and the possession thereof was transferred in the year 1972 itself and thereafter they were in settled possession of the same. The disputed property which is comprised in khasra no.99 (measuring 13 marlas) was given to Nasib Singh and he had constructed a house thereon. . . . . 4. It was averred that Ranjit Kaur (now proforma respondent no.4) is widow of nasib Singh while Saudagar Singh (now proforma respondent no.5) is son of Nasib singh, whereas the present appellants are the sons of Sadhu Singh. The factum of parties being co-sharers of the suit property was denied. It was further pleaded that since proforma respondent nos.4 and 5 are in possession of the suit property since 1972, they have become owners thereof by way of adverse possession. 5. In their replication, the plaintiffs pleaded that a family partition was effected between Surjan Singh and his sons Mewa Singh, Nasib Singh and sadhu Singh in his life time and four properties were given which were illustrated. The property marked as ABCDEFGH in the site plan was given to Mewa singh, while the house marked as LMNOPQRSTUVW was given to the plaintiffs. The house marked as XYZ and Z1 was given to Sadhu Singh and Nasib Singh as they were living jointly and subsequently they partitioned the suit property as well. The suit property measuring 13 marlas was kept by Surjan Singh and after his death, it was inherited by his sons, namely, Sadhu Singh, Nasib Singh and mewa Singh and no partition took place qua this property. The parties went to trial on the following issues:- 1. Whether the suit property is joint between the parties to the suit? opp 2. Whether plaintiffs are entitled to separate possession by way of partition from suit property? opp 3. Whether the suit is not maintainable? opd. . . . 3-A. Whether the land in dispute has already been partitioned orally? opd 3-B. Whether the defendants no.4 and 5 are owners in possession of land by way of adverse possession? opd 4. Relief. 6. Whether plaintiffs are entitled to separate possession by way of partition from suit property? opp 3. Whether the suit is not maintainable? opd. . . . 3-A. Whether the land in dispute has already been partitioned orally? opd 3-B. Whether the defendants no.4 and 5 are owners in possession of land by way of adverse possession? opd 4. Relief. 6. The trial Court concluded that out of four properties belonging to surjan Singh, which devolved upon Mewa Singh, Sadhu Singh and Nasib Singh, which further devolved upon the plaintiffs and the defendants, one property, i. e. , the suit property remained joint and was not partitioned and the basis for such an inference was the revenue record which was consistently showing all the parties as joint owners in possession thereof. Accordingly, the suit of the plaintiffs was decreed with costs and a preliminary decree for separate possession by way of partition was passed. In appeal, the findings of the trial court were affirmed by the first appellate Court. 7. While assailing the aforesaid findings, learned counsel for the appellants has contended that the plea of adverse possession has not been appreciated by the Courts below. He further contended that since the proforma respondents were in exclusive possession of the suit property to the knowledge of the plaintiffs, their possession was open and hostile to them and, therefore, they ought to have been declared as owners on the basis of adverse possession. Learned counsel for the appellants submitted that the findings recorded by the Courts below are perverse and that following substantial questions of law arise for consideration by this Court:- 1. Whether the property in dispute is liable to be partitioned which has already been partitioned in the year 1972? 2. Whether the Ist appellate Court has wrongly dismissed the appeal of the appellant, whereas it is proved on record that the respondent/plaintiff also inherited the property under partition and all the parties are residing in their specific share for the last more than 26 years? 3. Whether the suit of the respondents/ plaintiffs is not liable to be dismissed on another ground of adverse possession taken by the appellants, whereas the appellants/defendants are in the possession of the property more than 26 years before the filing of the suit and this fact was in the knowledge of the respondents/plaintiffs? 4. Whether the order of the ld. Addl. 4. Whether the order of the ld. Addl. District Judge which is based only on the conjecture, presumption is sustainable in the eyes of law? I have thoughtfully considered the contentions of the learned counsel for the appellants and have perused the impugned judgments. The plaintiffs had pleaded that one of the properties was joint and produced the revenue record in support of their plea. Jamabandi for the year 1993-94 (Exhibit P4) and other revenue record since the year 1971-72 reveal that the entries continue to record them as joint owners in possession, whereas other properties are shown to be in exclusive possession of the respective parties. 8. It is a settled principle of law that the presumption of truth has to be attached to the revenue record unless some cogent material is shown to the contrary. There is no such material on the basis of which any inference can be drawn regarding the suit property have been partitioned and being in exclusive possession of proforma respondent nos.4 and 5. That apart, the appellants did not plead and prove the essential ingredients of setting up of a plea of adverse possession. It was not pleaded as to when the possession of proforma respondent nos.4 and 5 became adverse and hostile to the knowledge of the plaintiffs. In this view of the matter, the concurrent findings recorded by the courts below cannot be faulted with, especially when the revenue record supports the plea of the plaintiffs. 9. For the reasons which have been discussed above, the law points which have been formulated by the learned counsel for the appellants and reproduced above, do not arise for consideration of this Court. That apart, the appeal has been filed with a delay of 65 days which has not been satisfactorily explained. Consequently, the appeal is dismissed on merits, as also on the point of delay. 10. C. M. NO.11616-C of 2009 is also dismissed in view of the above.