Banta Singh vs Hakam Singh

A.L. Bahri, J.

Vide this judgment four regular second appeals (RSA Nos. 2374 of 1989, 710 and 2002 of 1990 and 926 of 1991) are being disposed of as the facts arising therein are common. These appeals have been filed by the defendants. The suit for possession filed by Hakam Singh and others was decreed by the trial Court which decree was affirmed on appeal by the lower Appellate Court. Main judgment is prepared in R.S.A. No. 710 of 1990.

Narinder Singh was original owner of the suit land. On April 30, 1959, he agreed to sell the suit land to Hakam Singh and others, plaintiffs. Narinder Singh died and his estate was inherited by Sukhchain Singh and Kashmir Singh. On the death of Kashmir Singh, his sons Gursewak Singh, Rachhpal Singh, Mohinder Kaur and Rachhpal Kaur, his sons and daughters inherited his estate. Since Narinder Singh had not executed the sale deed during his life time, Hakam Singh and others filed a civil suit for specific performance of the contract against the aforesaid heirs of Narinder Singh. The Suit was decreed. In execution of the decree a sale deed was executed by Gursewak Singh and others in favour of the plaintiffs. Thus, the defendants were pleaded to be in permissive possession of the land and denied the title of the plaintiffs that the present suit was filed for possession. The defendants Banta Singh and others contested the suit denying the execution of any agreement by Narinder Singh in favour of the plaintiffs, they were not bound by the decree for specific performance passed or execution of the sale deed by Gursewak Singh and others. They asserted an agreement to sell in their own favour executed on July 14, 1958. They were still ready and willing to perform their part of the aforesaid agreement. They further asserted that on the death of Narinder Singh, there was dispute of his inheritance. Sukhchain Singh had nothing to do with the heirship of Narinder Singh. On the death of Kashmir Singh it was denied for want of knowledge about his heirs. They claim to be in continuous possession of the land under the agreement in their favour. The following issues were framed :

(1) Whether the plaintiffs are owners of the suit land ? OPP

(2) Whether the defendants are in possession of the suit land under agreement dated 14.7.58 ? OPD

(3) Whether the defendants have become owners of the suit land by way of adverse possession ? OPD

(4) Relief.

All the issues were decided in favour of the plaintiffs and the suit was decreed by the trial Court. The lower appellate Court as stated above affirmed the judgment and decree of the trial Court.

Both the Courts below have recorded a finding on the evidence produced that the defendantappellants have failed to prove the alleged agreement in their favour whereby Narinder Singh had agreed to sell the suit land to them. This is a finding of fact which is not open to challenge in the second appeal. Even otherwise the alleged agreement was not produced in Court. Reliance was only placed on an entry in the deedwriter''s register which was not accepted by the Courts below. That being the position the defendantsappellants could not be held to be in possession of the suit land under the aforesaid agreement.

The plaintiffs were held to be owners of the suit land under the sale deed executed by Gursewak Singh and others in execution of the decree for specific performance passed. It was not necessary in that suit to implead the present defendants as parties who were not parties to the contract, the agreement to sell, executed by Narinder Singh in favour of Hakam Singh and others. It is not disputed that Narinder Singh was the original owner of the suit land. The Courts below rightly came to the conclusion that the plaintiffs were owners of the suit land.

In the grounds of appeal a point was sought to be raised that the civil Court had no jurisdiction to try the suit as the land was surplus and could not be sold. Such a question for the first time cannot be allowed to be raised. This question depends upon proof of several other factors such as the permissible area of the original land owner and that the suit land was not part thereof. Thus, it is not considered necessary to deal with such a question in this second appeal.

The plea of adverse possession raised by the defendantsappellants runs counter to the plea that they were in possession under the agreement dated July 14, 1958. The Courts below rightly came to the conclusion that the defendants had failed to prove their adverse possession to the knowledge of the original owners. No particular date was mentioned from which they openly proclaim to be owners by adverse possession. The entries in the Jamabandi and Khasra Girdawaris that appellants are in possession without payment of rent will not prove their adverse possession. There is no entry that their possession was adverse (MUKHALFANA OR JABRAN). Earlier on similar facts case was considered by this Court in Gurdeep Singh v. Rachhpal Singh, 1993 (I) Simla Law Journal 341 wherein it was held that adverse possession was not proved on such entries. Mere nonpayment of rent does not prove adverse possession. It was so held in Karcha Singh v. Dewan Singh, 1985 P.L.J. 237.

For the reasons recorded above, the appeals are dismissed. No costs.