FIRST APPEAL 221 of 2006 on 17 September 2002

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No.221 of 2006 (O & M)Date of Decision: 10.11.2010.

Gurdev Singh

.....Appellant

Versus

Bhajan Singh and others

……Respondents

Coram:-HON’BLE MR. JUSTICE L. N. MITTAL.Present:Mr.Sandeep Jain, Advocate for the appellant.

Mr. Vikas Jain, Advocate for respondent Nos.1 to 3.

Respondent No.4 ex parte.

Service of respondent No.5 dispensed with.

L. N. MITTAL, J (ORAL)

Plaintiff-Gurdev Singh having failed in both the Courtsbelow, has filed the instant second appeal.

Plaintiff-appellant alleged that he is in possession of thesuit property, which is shamlat property, for more than twenty years.The defendants without any right, title or interest threatened todispossess the plaintiff therefrom. The plaintiff sought permanentinjunction restraining the defendants from forcibly dispossessing theplaintiff from the suit property and from interfering in his possessionthereon.

Defendant Nos.1 to 4 contested the suit and denied theplaint averments. The defendants pleaded that plot Nos.12, 13, 29and 9 min were allotted to Attar Singh migrant from Pakistan beingevacuee property in lieu of his claim of property left in Pakistan. Attar Singh was succeeded by his two sons Milkha Singh and KartarSingh, who orally partitioned the said plots. Plot Nos. 29 and 9 minfell to the share of Milkha Singh and have been inherited by his sonsdefendant Nos.1 to 3, which became owners in possession thereof,who is the suit property. Plot Nos.12 and 13 fell to the share ofKartar Singh. Defendant Nos.1 to 3 delivered possession of the suitproperty to defendant No.4 vide agreement dated 13.03.1997, who isin possession thereof. Various other pleas were also raised.Defendant Nos.2 to 4 were later on proceeded ex parte. DefendantNo.5 did not appear in spite of service and was proceeded ex partein the trial Court.

Learned Civil Judge (Junior Division), Nawashahr videjudgment and decree dated 17.09.2002 dismissed the plaintiff's suit.First appeal preferred by the plaintiff has been dismissed by learnedAdditional District Judge, Nawanshahr vide judgment and decreedated 09.08.2005. Feeling aggrieved, plaintiff has filed the instantsecond appeal.

I have heard learned counsel for the parties and perusedthe case file.

Learned counsel for the appellant vehemently contendedthat the plaintiff-appellant is in possession of the suit property and,therefore, cannot be dispossessed therefrom except in due course oflaw. Reliance in support of this contention has been placed on ajudgment of this Court in the case of Hukam Singh versus Tara Singhand others, 1992 Civil Court Cases 771 (P & H). The contentioncannot be accepted because the plaintiff-appellant has miserablyfailed to prove his possession over the suit property. Oral statements of plaintiff and another witness examined by him are not sufficient toprove that the plaintiff-appellant is in possession of the suit property.Third witness examined by the plaintiff is only a Draftsman, whoprepared the site plan. On the other hand, statements of plaintiff'switnesses also stand rebutted by statements of the defendants'witnesses. Thus plaintiff's evidence is not sufficient to prove that heis in possession of the suit land. Moreover, mere tethering of cattleor storing of manure as pleaded by the plaintiff would not depict thathe is in possession of the suit plot.

Arguments

Learned counsel for the appellant next contended that thelower appellate Court erroneously observed that plaintiff-appellant isnot owner of the suit property and in fact even the plaintiff appellanthas pleaded himself to be in possession thereof being Shamlatproperty. This contention also does not help the appellant becausepossession of vacant land is presumed to be of the owner. Theevidence of plaintiff-appellant is not sufficient to prove that evenwithout being owner of the suit land, he is in possession thereof. Atthe risk of repetition, it has to be mentioned that mere acts oftethering of cattle etc. do not clothe the plaintiff appellant withpossession of the suit land. The plaintiff has even failed to prove thesaid acts that he is tethering cattle and storing manure etc. in the suitland.

Learned counsel for the appellant next contended thatdefendants have failed to prove that the suit land was allotted topredecessor of defendant Nos.1 to 3 and has been sold by defendantNos.1 to 3 to defendant Nos.4 and 5. It was also pointed out thatlearned lower appellate Court erroneously observed that defendant Nos.4 and 5 are admittedly true owners of the suit land and theplaintiff appellant cannot seek injunction against them and earlierdefendant Nos.1 to 3 were true owners. It was contended thatfinding of the trial Court on this aspect to the contrary has beenreversed by lower appellate Court without recording any reasons.Relying on judgment of Hon'ble Apex Court in M/s NopanyInvestment (P) Ltd. versus Santokh singh (HUF), 2008(2) CivilCourt Cases 300 (S.C.), learned counsel for the appellant contendedthat first appellate Court ought to give reasons for reversing thefinding of the trial Court. The entire contention is misconceived anddevoid of merit. Irrespective of whether defendants or any of themare owners of the suit property or not, the plaintiff cannot succeedunless he proves his own possession over the suit property.However, the plaintiff has failed to prove his possession over the suitproperty and, therefore, he has been rightly non-suited by the Courtsbelow. There is concurrent finding by both the Courts below holdingthat plaintiff is not proved to be in possession of the suit property.The said finding is based on proper appreciation of evidence and issupported by cogent reasons. The said finding does not warrantinterference in second appeal. No question of law, much lesssubstantial question of law, arises for determination in the instantsecond appeal. The appeal is found to be without any merit and isaccordingly dismissed.

10.11.2010.A. Kaundal

( L. N. MITTAL )JUDGE