Giani Himmat Singh Ramta vs Harniranjan Singh

A.L. Bahri, J.—This Regular Second Appeal has been filed by the defendants, Himmat Singh and others, against the judgment and decree of the District Judge, Ropar, dated March 19, 1990, whereby the appeal filed against the judgment and decree of the Sub Judge I Class, Anandpur Sahib, dated October 12, 1987, was dismissed but cross-objections were allowed and the trial Court decree was modified, resulting in decreeing the suit of the plaintiff in full. The trial Court had decreed the suit for possession of the suit property except portion situated on the East of the line ''MN'' extending in right angle up to line ''EF'' as shown in the site plan exhibit P-31.

The Plaintiff Harniranjan Singh is son of Himmat Singh Ramta, the appellant (defendant No. 1). The other defendants are wife, sons and daughters of Himmat Singh aforesaid. These sons and daughters of Himmat Singh are step-brothers and step-sisters of the plaintiff Harniranjan Singh. Plaintiff - Harniranjan Singh claimed to be owner in possession of the suit property which was given to the defendants as licensees vide license deed dated June 13, 1960. The licence deed was executed by Raghbir Singh- defendant who was acting as head of the family of the defendants. Himmat Singh was not available at that time and was away. Even otherwise the defendants had orally declared that they would be utilising the suit property as licenses of the plaintiff. Since the defendants started asserting rights of ownership the licence was revoked and the suit was filed. The plaintiff claimed to be in possession and further claimed that the defendants should not interfere with his possession. The suit was filed for permanent in-junction restraining the defendants from forcible dispossessing the plaintiff. In the alternative the plaintiff also claimed decree for possession of the suit property as owner on proof that the defendants dispossessed the plaintiff during pendency of the suit.

All the defendants contested the suit on various pleas. The trial proceeded on the following issues :-

(1) Whether the plaintiff is the owner in possession of the property in dispute? OPP.

(2) Whether defendants were inducted as licensees in the suit property vide deed dated 13.6.1960? OPP.

(3) Whether the license deed dated 13.6.1960 is forged and fabricated document? OPD.

(4) Whether the license deed dated 13.6.1960 is illegal, without consideration and is null and void? OPD.

(5) Whether suit is properly valued for the purposes of court fee and jurisdiction? OPP.

(6) Whether the suit of the plaintiff is within time? OPP.

(7) Whether the plaintiff is estopped by his act and conduct from bringing the present suit?

(8) Whether the suit is not maintainable as alleged in para No.3 of the preliminary objections of the written statement? OPD.

(9) Whether the plaintiff is entitled to the injunction prayed for? OPP.

(10) Relief.

The trial court decided issue No. 1 partly in favour of the plaintiff and partly in favour of the defendants. The defendants were held to be owners in possession of the property situated to the east of the line ''MN'' upto the point where straight line drawn from ''MN'' onwards meets line "EF" of the site plan Exhibit P-31. With respect to the remaining property, the plaintiff was held to be owner. Issues No. 2, 3 and 4 were decided in favour of the plaintiff and against the defendants. The defendants were held to be licensees. The licence deed was not forged one and the same was not null and void. Issue No. 5 was decided in favour of plaintiff. The suit was properly valued for the purpose of court fee and jurisdiction. Under issue No.6 the suit was held to be within time. Under issue No. 7 it was held that the plaintiff was not estopped from filing the present suit. The suit was held to be maintainable under issue No. 8. Under issue No. 9 it was held that since the plaintiff was not in possession of the suit property, he was not entitled to possession except portion east of line ''MN'' as shown in the site plan Exhibit P-31. The lower appellate court, as already stated above, decreed the suit with resect to the entire property.

The findings of the courts below on issues 1 to and 6 were challenged and the findings on other issues were not challenged before lower appellate court.

Learned counsel for the appellants/defendants while challenging findings of the courts below has argued that part of the property was gifted and the plaintiff thus cannot claim to be owner of the property. The donee has not made a claim to the property. An application for producing additional evidence was filled before the lower appellate Court to exhibit the gift-deed and the same was arbitrarily and illegally declined. This contention cannot be accepted. The lower appellate Court has given cogent reasons for not allowing the application for additional evidence. No evidence was produced that the gift was ever accepted. The donee was not produced in this respect. The gift-deed was not admitted into evidence and the lower appellate Court further found that if the same is admitted into evidence, it would be inadmissible in evidence. Nothing has been urged on this point by learned counsel for the appellants. Thus, the alleged gift-deed has to be ruled out of consideration. Otherwise findings on issues No. 1 to 4 are based on facts and are not open to challenge in this second appeal.

The finding on issue No. 6 is also challenged on the ground that adverse possession of the defendants was proved and the suit was barred by time. This contention cannot be accepted. When the plaintiff bases his suit on title, it is for the defendants to allege and prove adverse possession. Though no issue was framed in the suit regarding adverse possession, no cogent evidence was produced by the defendants to prove their adverse possession. The parties are close relations as already described above, and in order to prove ouster of the true owner, specific acts were required to be alleged. Mere continuous possession of close relation, as that of the parties in the present suit, will not by itself prove adverse possession.

The finding that the defendants were licensees under a licence deed is again finding of fact. Since the defendants were licensees, their possession cannot be termed as ''adverse''.

For the reasons above, this appeal fails and is hereby dismissed.