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2010 DIGILAW 2470 (PNJ)

Bant Singh v. Puran Singh

2010-08-27

MAHESH GROVER

body2010
JUDGMENT Mr. Mahesh Grover, J.: Plaintiffs are in regular second appeal. They have questioned the findings recorded by the First Appellate Court dated 30.8.1984 2. The Trial Court decreed their suit for possession while the first Appellate Court reversed the findings. The case set up by the appellants is that they are owners in possession of the property described in the plaint and comprised in khasra no.31R/24 min. 3. It was pleaded in the plaint that the respondents had forcibly entered into possession a year ago. 4. Respondents did not deny possession but pleaded that one Inder Singh who is one of the plaintiffs had permitted them to enter possession since the property was shamlat land. They set up a plea of adverse possession. Upon following issues having been framed, the parties led their respective evidence:- 1. Whether the plaintiffs are the owners of the suit land?OPP. 2. Whether the defendants have become the owner of the suit land by adverse possession? OPD. 3. Whether the suit is not maintainable.?OPD. 4. Whether the suit is bad for mis-joinder of necessary parties and causes of faction? OPD. 5. Relief. 5. To establish their case, plaintiffs-appellants relied upon the report of Kanoongo Balwinder Singh according to which upon measuring the disputed area it was found that there was encroachment by Puran Singh to the extent of 10 marlas while other defendants had occupied 5 marlas each out of khasra no 24 of rectangle no.31. This report was however discarded by the Appellate Court for the reason that no notice had been issued to the respondents and the pucca points had not been fixed and that the said demarcation was not in accordance with the instructions of the Financial Commissioner. There was however no dispute regarding the ownership of the land and a concurrent finding was returned by both the Courts below that the appellants were the owners thereof. 6. I have considered the matter in the light of the contentions raised before this Court and am of the opinion that the Appellate Court has gone wrong in reversing the findings of the learned Trial Court. The positive case of the appellants was that they were owners in possession of the property which was disturbed by the respondents. 6. I have considered the matter in the light of the contentions raised before this Court and am of the opinion that the Appellate Court has gone wrong in reversing the findings of the learned Trial Court. The positive case of the appellants was that they were owners in possession of the property which was disturbed by the respondents. Respondents did not deny possession but set up a plea of adverse possession and pleaded that Inder Singh one of the plaintiffs permitted them to enter the land which is shamlat land in character. Once an admission has been made by the respondents then the onus was upon them to prove that their possession was legitimate. In view of the specific plea raised by them that Inder Singh one of the plaintiffs permitted them to settle on this area which area was shamlat land it was incumbent upon them to establish this plea but that was not proved before the Court below. On the other hand, appellants who pleaded ownership proved the same by producing revenue record which went un-rebutted. Even otherwise, both the Courts have recorded concurrent findings of fact regarding possession. The substantial question of law which arises for the consideration of this Court is “whether a rightful owner is entitled to possession from a person who cannot prove his possession to such land as legitimate?” 7. After giving thoughtful consideration to the aforesaid, I am of the considered opinion that since the appellants had established that they were owners of the property and the respondents while admitting the possession failed to justify the same, the appellants were certainly entitled to the possession and were not required to prove the extent of encroachment for the simple reason that the admission was the best piece of evidence. Hence, the appeal is hereby allowed and the impugned order dated 30.8.1984 of the Appellate Court is hereby set aside. ------------