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2010 DIGILAW 2170 (PNJ)

Gurdev Singh v. Gurbax Singh

2010-07-30

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. CM No.391.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of two days in filing the appeal is condoned. RSA No. 127 of 2010 2. This is second appeal by plaintiff Gurdev Singh who has been unsuccessful in both the courts below. 3. Plaintiff filed suit seeking declaration that he has become owner in possession of the suit property by adverse possession alleging that the plaintiff is in adverse possession of the suit property since 15.5.1973 and has constructed his house there without any objection from defendant no. 1 who was previous owner thereof. The plaintiff also sought permanent injunction restraining the defendants from dispossessing the plaintiff from the suit property and from interfering in his possession thereon in any manner. It was alleged that defendant no. 2 claims to have purchased the suit property from defendant no.1 and threatened to dispossess the plaintiff therefrom. 4. Defendants controverted the allegations of the plaintiff. It was pleaded that previously defendant no. 1 was owner in possession of the suit property and now defendant no. 2 has purchased it from defendant no. 1 vide registered sale deed dated 30.8.1999 and is owner in possession of suit property since then. It was denied that plaintiff is in possession of suit property since 15.5.1973 or has raised construction thereon. Factum of possession of the plaintiff over the suit property was also denied. Various other pleas were also raised. 5. Learned Additional Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 29.1.2009 dismissed plaintiffs suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 28.8.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. 6. I have heard learned counsel for the appellant and perused the case file. 7. Plaintiff led oral evidence to depict that he is in adverse possession of the suit property since 15.5.1973 and has, therefore, become owner thereof by adverse possession. The contention cannot be accepted. Oral evidence led by the plaintiff is not sufficient to depict that the appellant/plaintiff is in possession of the suit property much less to depict that he is in adverse possession thereof since 15.5.1973. The suit land is comprised of khasra no. 64 measuring 4 marlas. The contention cannot be accepted. Oral evidence led by the plaintiff is not sufficient to depict that the appellant/plaintiff is in possession of the suit property much less to depict that he is in adverse possession thereof since 15.5.1973. The suit land is comprised of khasra no. 64 measuring 4 marlas. However, no revenue record has been produced by the plaintiff-appellant to depict that he is recorded to be in possession of the suit property in the revenue record. In fact, learned counsel for the appellant fairly conceded that in the revenue record, defendant no. 1 was recorded to be owner as well as in possession of the suit land. In this view of the matter, the plaintiff cannot be said to be in possession of the suit property much less in adverse possession thereof since 15.5.1973. 8. The plaintiff also obtained demarcation of the suit land during the pendency of the suit. However, the said demarcation was obtained not through the court but independently by the plaintiff. Moreover, notice was not issued to defendants by the official making demarcation. Consequently, no reliance can be placed on any such demarcation. 9. In view of judgments of this Court in Bhim Singh and others v. Zile Singh and others, 1 (2006-3)144 PLR 159 and Dewaki and others v. Dayawanti and others, 2 (2006-3) 144 PLR 132, a person cannot file suit to seek declaration that he has become owner of the suit property by adverse possession and on the other hand, a person in adverse possession can only raise this plea by way of defence and not by way of offence by filing suit. Consequently, suit filed by plaintiff for declaration that he has become owner of the suit property by adverse possession is not maintainable. Counsel for the appellant contended that in Bondar Singh and Ors v. Nihal Singh, 3 , AIR 2003 SC 1905 : (2003)4 SCC 161 Honble Supreme Court upheld the decree that plaintiffs have become owners of the suit property by adverse possession. However, in that judgment question whethersuit is maintainable or whether adverse possession can be pleaded only as defence was not argued, considered, discussed and adjudicated upon. Consequently, this judgment does not help the. appellant. 10. Learned counsel for the appellant contended that defendant no. However, in that judgment question whethersuit is maintainable or whether adverse possession can be pleaded only as defence was not argued, considered, discussed and adjudicated upon. Consequently, this judgment does not help the. appellant. 10. Learned counsel for the appellant contended that defendant no. 2 stated that he constructed varandah in the suit property 2/3 days after purchasing it whereas attorney of defendant no. 1 stated that varandah stood constructed in the suit property for 30 years. However, plaintiff cannot take any advantage of the so-called contradiction in the statements of the aforesaid witnesses. Moreover, the aforesaid contradiction would not depict that the plaintiff is in possession of the suit property. It may also be added here that the plaintiff himself did not step into witness box although his son appeared as witness. However, for non-appearance of the plaintiff/appellant, adverse inference can be drawn against the plaintiff. 11. For the reasons recorded hereinabove, I find that the plaintiff has miserably failed to prove his case. There is also concurrent finding by both the courts below against the plaintiff. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.