Gurdeep Singh vs Rachhpal Singh

B.S. Nehra, J.

This appeal, preferred by defendant Gurdeep Singh (hereinafter referred to as the appellant), is directed against the judgment and decree dated 5.2.1992 passed by Shri M.L. Singal, District Judge, Faridkot, dismissing the appellant''s appeal and thereby affirming the judgment and decree of the learned trial court decreeing the suit for possession filed by Rachhpal Singh and others, plaintiffs (hereinafter referred to as the respondents).

The facts of the case are these. Rachhpal Singh and others, respondents, who are sons and daughters of Kashmira Singh, instituted a suit for possession of land, described in the plaint, against the appellant. The respondents'' case is that they are owners of the land in dispute and that the appellant had been in illegal possession thereof without any right or title. They asked the appellant several times to deliver the possession of the suit land to them but to no avail.

The suit was contested by the appellant on the ground that the respondents are not the heirs of Narinder Singh son of Basant Singh, resident of village Naraingarh. According to him, the mutation of his (Narinder Singh) inheritance has been wrongly sanctioned in favour of the respondents and as such i.e. they have no locus standi to file this suit. A plea was also taken by the appellant that the suit is time barred and that he is in adverse possession of the disputed property for the last more than fifteen years. He added that his possession was hostile, continuous, open and to the knowledge of Narinder Singh when he was alive and after his death, his heirs are aware of his (appellant) adverse possession. According to him, he as thus, become owner of the land by way of a adverse possession.

On the pleadings of the parties, following issues were framed by the trial Court :

Whether the plaintiffs have locus standi to file the suit ? OPP

Whether the suit is bad for nonjoinder of necessary parties ? OPD

Whether the suit is barred by time ? OPD

Whether the plaintiffs are owners of the suit land ? OPP

Whether the defendant has become owner of the suit land by adverse possession ? OPD

Relief.

After appraising the evidence on the record, the learned trial Sub Judge decreed the respondents'' suit for possession holding that they are owners of the land while the appellant is a trespasser. The learned trial Court also held that the suit was within time and the appellant''s possession was not adverse. Aggrieved against the judgment and decree of the trial Court, the appellant preferred an appeal before the District Judge, Faridkot, who dismissed the same by his impugned judgment and decree and thereby affirmed the findings recorded by the trial Court.

The only point urged by the learned counsel for the appellant is that both the trial Court and the lower appellate Court have on the holding that the appellant is not in adverse possession of the property in dispute. For determining as to whether or not the appellant is in adverse possession of the property in dispute, documentary evidence relied upon by the appellant may be noticed. The appellant had produced before the trial Court, inter alia, Jamabandis, for the year 196061 Exhibit D1, for the year 196566 Exhibit D 2, for the year 197071 Exhibit D3, for the year 197576 Exhibit D4 and for the year 198081 Exhibit D5. The learned counsel for the appellant relied on the entries of these Jamabandis to urge that the appellant is entitled to claim adverse possession of the land is dispute. At the outset, it may be observed that in none of these Jamabandis, the possession of the appellant has been recorded as adverse. In column No. 5 of these Jamabandis, which relates to the name of the cultivator, the entry is to the effect "Narinder Singh Puttar Basant Singh Tabea Marzi Malak, Kasht Gurdeep Singh son of Bishan Singh." GairMourusi, Marfat Tara Singh son of Vir Singh." In column No. 9 of these Jamabandis, which relates to the payment of rent by the tenant, the description is "Tabea Marzi Malak Bila Lagan Bawaja Qabza Dereena, Zumgi Gair Mourusi, Bila Lagan Bawaja Tasawar Rehan." In these Jamabandis, Raja Narinder Singh son of Raja Barjinder Singh son of Raja Bikram Singh is shown as Ahla Malak. In Jamabandi for the year 198586 Exhibit D6, Rachhpal Singh etc. have been shown to be in possession as per description in column No. 5 thereof. The first appellate Court was, therefore, justified in coming to the conclusion, as it did, that the possession of the appellant was merely permissive. The mere fact that he was not paying rent, his possession could not ripen into an adverse possession. In Karcha Singh alias Gurbaksh Singh and others v. Dewan Singh and others, 1985 PLJ 237 : 1986 R.R.R. 542, it was held by this High Court that mere nonpayment of rent is no indication that the possession was adverse. A similar view was taken by this High Court in Jagan Singh and others v. Chatin Kaur and others, 1986 PLJ 142 : 1985 R.R.R. 280. It is thus clear that the possession of the appellant was not adverse. No fault can, therefore, be found with the finding recorded by the learned trial Court, which was affirmed by the learned District Judge against the appellant under issue No. 5 holding that he has not become owner of the suit land by way of adverse possession. No other point was urged.

For the reasons recorded above, this appeal fails and is dismissed with costs.