Hardip Singh vs Rajwant Kaur and another

L.N. Mittal, J.—Defendant Hardip Singh has filed this second appeal having failed in both the courts below.

Respondents-plaintiffs Rajwant Kaur and Kulwant Kaur - daughters of Bakshish Singh filed suit against defendant-appellant for possession of suit land measuring20 kanals and for permanent injunction restraining the defendant from alienating the same and from changing nature thereof.

Plaintiffs alleged that their father Bakshish Singh was owner of the suit land. He died leaving behind plaintiffs and others as his legal heirs.

Accordingly, plaintiffs are co-owners in the suit land. Defendant is real uncle of the plaintiffs. The plaintiffs and their brother and sisters were of tender age, when their father expired. Taking advantage thereof, the defendant started cultivating the suit land being near relative of the plaintiffs. However, later on, the defendant started claiming himself to be owner of the suit land. Accordingly, plaintiffs filed suit for possession and injunction.

The defendant, in his written statement, admitted that plaintiffs'' father Bakshish Singh was owner of the suit land. However, other plaint averments were broadly controverted. The defendant alleged that he is in possession of the suit land since the year 1989 and his possession is open, hostile and uninterrupted and he has become owner of the suit land by adverse possession. He denied having paid any rent of the suit land to anybody. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Amritsar, decreed the plaintiffs'' suit. First appeal preferred by the defendant has been dismissed by learned District Judge, Amritsar, vide judgment and decree dated 24.10.2011. Feeling aggrieved, defendant has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

It is undisputed that plaintiffs'' father Bakshish Singh was owner of the suit land. Consequently, on his death, all his heirs including the plaintiffs inherited the suit land and plaintiffs became co-owners in the suit land. Stand of the defendant is that he is owner of the suit land by adverse possession being in hostile possession thereof since the year 1989. However, the defendant has miserably failed to substantiate his said version. The defendant has not produced any documentary evidence on record to depict that he is in continuous possession of the suit land since the year 1989. Moreover, his possession was not unchallenged. He had to file a suit for injunction because he was being threatened with dispossession. Consequently, the possession being not unchallenged could not have ripened into ownership.

In addition to the aforesaid, defendant''s possession was never adverse. The defendant himself admitted in his cross-examination that he had taken the suit land from Bakshish Singh for cultivating it. Similar is the admission made by defendant''s witness Tarlok Singh (DW-2). Bakshish Singh - then owner of the suit land, was real brother of the defendant. As per own admission of the defendant, he had taken suit land from his real brother Bakshish Singh for cultivating it. It would depict permissive and not hostile or adverse possession of the defendant over the suit land. Since the possession of the defendant was permissive, he could not have become owner of the suit land by adverse possession. He has not even alleged as to when his possession became adverse, if initially it was permissive.

In jamabandi (Ex.P-1) for 2000-01, plaintiffs'' father Bakshish Singh is recorded to be owner of the suit land and possession of the defendant has been recorded to be gair marusi. There are also remarks in the `Remarks Column'' regarding inheritance mutation of Bakshish Singh in favour of his heirs. In the Column of Rent or Lagaan, it has been mentioned that possession of defendant was on account of relationship. Thus, jamabandi on record would depict that possession of the defendant was permissive and not hostile or adverse at any stage. The defendant has not produced any documentary evidence to depict that his possession was adverse or that his possession was for more than 12 years before the filing of the suit.

It would also not be out of place to notice here that defendant''s suit for injunction was decreed restraining the plaintiffs and others from dispossessing the defendant from the suit land except in due course of law. It would also depict that plaintiffs have right to take possession of the suit land in due course of law and this is what plaintiffs have done by filing the instant suit.

Counsel for the appellant vehemently contended that plaintiff no.2 - Kulwant Kaur, while appearing as PW-1, has admitted that possession of the defendant is hostile. The contention does not help the appellant. Firstly,she has not stated as to since when the possession of defendant is hostile. Secondly,even according to the plaint, now the defendant has started asserting his ownership over the suit land and obviously, his possession is now hostile and adverse, necessitating the filing of the suit by the plaintiffs for possession. On the basis of aforesaid admission of plaintiff no.1 Kulwant Kaur, it cannot be said by any stretch of imagination that defendant has become owner of the suit land by adverse possession.

The instant litigation is result of sheer dishonesty of the defendant-appellant. He was allowed to cultivate the suit land by his real brother Bakshish Singh. After his death, his issues were of tender age. The defendant, being their uncle, continued to cultivate the suit land. However, the defendant then turned dishonest and started asserting ownership, forcing his poor nieces i.e. plaintiffs to file the instant suit.

Plaintiffs being co-sharers of the suit land, even without impleading other co-sharers, have right to seek possession of the suit land from defendant, who is in unauthorized possession of the suit land.

There is concurrent finding recorded by both the courts below that the defendant has failed to prove his ownership over the suit land by adverse possession. The said finding is fully justified by the evidence on record and therefore, does not warrant interference by this Court. The said finding is not based on misappreciation or misreading of evidence nor it suffers from any perversity or illegality. No question of law, much less substantial question of law, arises for adjudication in this second appeal.

The appeal is completely frivolous and meritless and is accordingly dismissed in limine.