(O&M) Jetha Nand And Ors vs Balbir And Ors
2022 Latest Caselaw 7537 P&H

R.S.A.No.386 of 1989(O&M)                                   -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH


                                                 R.S.A.No.386 of 1989(O&M)
                                                  Date of decision: 22.07.2022

Jetha Nand and others
                                                                    ..Appellants

                                     Versus

 Balbir Singh (since deceased) through LRs and others

                                                                  ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. C.B.Goel, Advocate, and Mr. Rajinder Goel, Advocate for the appellants.

Mr. Ajay Jain, Advocate for the respondents.

ANIL KSHETARPAL, J(Oral)

After having heard the learned counsel representing the parties

at length, this court is of the opinion that the matter is required to be remitted

back to the First Appellate Court to decide the plea of the appellants having

perfected their title by way of adverse possession. Hence, detailed facts are

not required to be noticed. However, to complete the narration of facts,

some skeleton facts are being noted.

The plaintiffs while filing the suit for possession claim that the

defendants were inducted as tenants on payment of 1/3rd share of the crop,

however, they have stopped paying the rent from the Kharif Crop 1978. It

is claimed that the relationship of landlord and tenant has come to an end

and therefore, the plaintiffs are entitled to possession.

The defendants, while contesting the suit, claim that they were

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never inducted as tenants and in fact, they purchased the land as well as the

house through an oral sale on payment of Rs.11,000/- in the year 1964. In

the alternative, it was asserted that the defendants have perfected their title

by adverse possession because they are openely proclaiming themselves to

be owners of the suit land since 1964.

When one of the plaintiffs appeared in the evidence as PW6 in

1983, he admitted that their family shifted out of the village 40-50 years ago

and settled in the State of Rajasthan. It may be noted here that there were

some proceedings for correction of the revenue record before the revenue

authorities in which, on inspection of the land, an entry was made in favour

of the defendants that they are in possession of the property. The plaintiffs

filed an application for recall thereof which was dismissed by relegating the

parties to the Civil Court.

The trial court dismissed the suit whereas the First Appellate

Court has reversed the judgment and decree passed by the trial Court. It

may be noted here that both the courts have concurrently found that the

plaintiffs have failed to prove their case with regard to any relationship of

landlord and tenant between the plaintiffs and the defendants. The trial

court held that the defendants have purchased the property through an oral

sale, however, the First Appellate Court has reversed the finding.

It is well settled that immovable property worth more than

Rs.100/- cannot be transferred without registered sale deed in terms of

Section 54 of the Transfer of Property Act, 1882 read with section 17 of the

Registration Act, 1908. However, there is one important issue which needs

deeper consideration. The First Appellate Court, on the one hand, has

recorded a finding that there was no oral sale, however, at the same time, has

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declined to examine the acquisition of the ownership by way of adverse

possession on the ground that the possession of the defendants is permissive

on account of oral sale. The First Appellate Court was required to return a

definite finding on that fact. The court could have observed that there was

an oral sale which was not permissible while proceeding with the case or

the court could have observed that there was no oral sale and then the nature

of possession of the defendants should have been examined. This has to be

considered in the context that the plaintiffs have admitted that their family

shifted out of the village somewhere in 1940's.

Keeping in view the aforesaid facts, the matter is remitted back

to the First Appellate Court to decide the matter afresh.

Needless to observe that the First Appellate Court will

independently decide the appeal without being influenced by the

observations made by this Court.

The parties are directed to appear before the court of learned

District and Sessions Judge, Rewari, on 08.08.2022.

All the pending miscellaneous applications, if any, are also

disposed of.

July 22th, 2022                                       (ANIL KSHETARPAL)
nt                                                          JUDGE

Whether speaking/reasoned               :       Yes/No
Whether reportable                      :       Yes/No




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