(O&M) Sher Singh Etc vs Roshan

Punjab-Haryana High Court

(O&M) Sher Singh Etc vs Roshan on 7 May, 2024

Author: Alka Sarin

Bench: Alka Sarin

                            RSA-2614-1995 (O&M)
                                                                                                      1
                            211
                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                                                                        RSA-2614-1995 (O&M)
                                                                        Date of decision : 07.05.2024


                            Sher Singh and Others                                        ... Appellant(s)

                                                              Versus

                            Roshan                                                     ... Respondent(s)



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                            Present :   Mr. Harsh Aggarwal, Advocate for the appellants.

                                        Mr. Sanjay Vij, Advocate for the respondent.



                            ALKA SARIN, J. (ORAL)

1. The present appeal has been preferred by the defendant- appellants challenging the judgment and decree dated 17.10.1995 passed by the First Appellate Court whereby the judgment and decree dated 23.11.1991 passed by the Trial Court has been reversed.

2. Brief facts relevant to the present case are that the plaintiff- respondent filed a suit simpliciter for permanent injunction seeking to restrain the defendant-appellants from interfering in the possession of the plaintiff-respondent over the suit property comprised in Khewat No.59, Khata No.83, Rect. No.24, Killa No.16(8-0), Khata No.84, Rect. No.23, Killa No.20(8-0), measuring 16 kanals situated within the revenue estate of Yogesh Sharma 2024.05.08 09:52 I attest to the accuracy and integrity of this order/judgment.

RSA-2614-1995 (O&M) 2 Village Khawaspur, District Gurgaon. It was averred in the plaint that the defendant-appellants claimed themselves to be owners in possession by way of an exchange on the basis of wrong and illegal entries in the revenue record. On notice, the suit was contested by the defendant-appellants who pleaded that the plaintiff-respondent had no concern with the suit land and they were in possession of the suit land by way of an exchange.

3. On the basis of the pleadings of the parties, the following issues were framed by the Trial Court :

1. Whether the plaintiff is in possession of the suit land as owner on the basis of exchange ? OPP

2. If issue No.1 is not proved in affirmative whether the plaintiff has become the owner of the suit land by adverse possession ? OPP

3. Whether the plaintiff has no locus standi to file this suit ? OPD

4. Whether the suit is not maintainable in the present form ? OPD

5. Whether the suit is time barred ? OPD

6. Relief.

4. The Trial Court dismissed the suit vide judgment and decree dated 23.11.1991. Aggrieved by the same, an appeal was preferred by the plaintiff-respondent which appeal was allowed vide judgment and decree dated 17.10.1995. Hence, the present regular second appeal by the defendant-appellants.

Yogesh Sharma 2024.05.08 09:52 I attest to the accuracy and integrity of this order/judgment.

RSA-2614-1995 (O&M) 3

5. Learned counsel for the defendant-appellants would contend that the defendant-appellants were shown to be owners in possession of the suit land and that there was a change in the entries in the khasra girdawaris and at the time of preparation of the Demarcation Report (Ex.D4) the plaintiff-respondent was present. It is further the contention of the learned counsel that the First Appellate Court has gone totally beyond the pleadings of the parties inasmuch as the plaintiff-respondent who had sought permanent injunction had been held to be owner of the suit land by way of adverse possession.

6. Per contra, the learned counsel for the plaintiff-respondent would contend that in the jamabandis for the years 1956-57 (Ex.P2); 1963- 64 (Ex.P4), 1968-69 (Ex.P3), 1973-74 (Ex.P5); 1978-79 (Ex.P6) and 1983- 84 (Ex.P1) and khasra girdawari from kharif 1984 to rabi 1986 (Ex.P13), the plaintiff-respondent was shown to be in possession, though the ownership is that of the defendant-appellants. It is further the contention of the learned counsel that change in the entries was on the basis of the report No.51, however, the said report was not produced on the record.

7. I have heard the learned counsel for the parties.

8. In the present case, revenue records i.e. jamabandis for the years 1956-57 (Ex.P2); 1963-64 (Ex.P4), 1968-69 (Ex.P3), 1973-74 (Ex.P5); 1978-79 (Ex.P6) and 1983-84 (Ex.P1) and khasra girdawari from kharif 1984 to Rabi 1986 (Ex.P13) clearly reveal that the plaintiff-respondent was in possession of the suit land. The entries for the first time in kharif 1986 in favour of the defendant-appellants was made on the basis of a report No.51 Yogesh Sharma 2024.05.08 09:52 I attest to the accuracy and integrity of this order/judgment.

RSA-2614-1995 (O&M) 4 which was not produced on the record. The First Appellate Court found that there was nothing on the record to show that any notice was given to the plaintiff-respondent before changing the entries in the khasra girdawaris. Even before this Court, no document has been shown that any notice was given to the plaintiff-respondent before the change in the khasra girdawaris. In view thereof, the finding of the First Appellate Court, as far as the possession of the plaintiff-respondent is concerned, cannot be faulted with. However, the finding of the First Appellate Court that the plaintiff- respondent had become owner of the suit land by way of adverse possession is not sustainable in law in view of the fact that this was not even the pleaded case of the parties. The First Appellate Court has gone totally beyond the pleadings while decreeing the suit by declaring the plaintiff- respondent as owner of the suit land by way of adverse possession. In view thereof, the said finding is set aside.

9. In view of the above, the present appeal is partly allowed to the extent that the plaintiff-respondent is held to be in possession of the suit property and the suit is decreed to the extent that the plaintiff-respondent shall not be dispossessed from the suit land except in due course of law. The finding recorded by the First Appellate Court declaring the plaintiff- respondent as owner of the suit land by way of adverse possession is set aside. Pending applications, if any, also stand disposed off.

                            07.05.2024                                       ( ALKA SARIN )
                            Yogesh Sharma                                         JUDGE

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO Yogesh Sharma 2024.05.08 09:52 I attest to the accuracy and integrity of this order/judgment.