Punjab-Haryana High Court
(O&M) Sadhu Ram vs Rakhi on 29 April, 2024
Author: Alka Sarin
Bench: Alka Sarin
RSA No.2134 of 1989 -1- 2024:PHHC:057521
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
132 RSA No.2134 of 1989 (O&M)
Reserved on : 02.04.2024
Date of Decision : 29.04.2024
Sadhu Ram (deceased) through LRs ....Appellants
VERSUS
Smt. Ram Rakhi and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Manuj Chadha, Advocate for the appellants.
Mr. M.L. Saini, Advocate for respondent No.1.
Mr. Ajay Ghangas, Advocate for respondent Nos.2 to 5.
ALKA SARIN, J.
1. The present appeal has been preferred by defendant No.1-
appellant challenging the findings passed by the First Appellate Court vide
judgment and decree dated 16.05.1989 reversing the judgment and decree
dated 23.04.1987 passed by the Trial Court.
2. The brief facts relevant to the present lis are that the plaintiff-
respondents herein filed a suit for separate possession by way of partition of
three properties fully described in the head-note of the plaint. It was averred
that the plaintiff-respondents and defendant-appellants were co-sharers in
the suit property having inherited the same from a common ancestor i.e.
Ishar Singh. It was further pleaded that the defendant No.1-appellant was
threatening that he would sell the entire suit property and hence the suit. On
notice defendant No.2 did not put in appearance and the suit was contested
integrity of this order/judgment
RSA No.2134 of 1989 -2- 2024:PHHC:057521
only by defendant No.1-appellant. Preliminary objections were raised
regarding court fees, jurisdiction, maintainability and estoppel. On merits it
was denied that the plaintiff-respondent No.5, namely, Surinder Singh was
the General Power of Attorney of plaintiff-respondent Nos.1 to 4. It was
averred that the said Surinder Singh had no right to file the suit. It was also
denied that the suit properties were joint. The stand taken by defendant
No.1-appellant was that the possession of the defendant No.1-appellant in
property No.A bearing Municipal No.1320 had matured into ownership on
account of efflux of time. It was further the case that property No.B bears
No.1306 and the defendant No.1-appellant was in possession from the
inception and was also paying house-tax to the Municipal Committee. It was
pleaded that the property originally was an old one and the defendant No.1-
appellant had incurred heavy expenses to renovate the same and make it fit
for habitation. Qua property No.C it was alleged that originally the property
was mortgaged by Ishar Singh, the father of the defendant No.1-appellant,
on 03.03.1938 with Brij Lal and the defendant No.1-appellant got it
redeemed on 16.09.1941. Thereafter, improvements were made and hence it
was averred that the defendant No.1-appellant had become the owner of the
suit property. Replication was filed controverting the averments made in the
written statement and reiterating those made in the plaint.
3. From the pleadings of the parties the following issues were
framed by the Trial Court :
1. Whether Surinder Singh plaintiff No.5 is
authorized to file the suit on behalf of plaintiffs No.1 to
4 ? OPP
integrity of this order/judgment
RSA No.2134 of 1989 -3- 2024:PHHC:057521
2. Whether the plaintiffs are in joint possession and
owner to the extent of 1/2 share of the suit property ?
OPP
3. Whether the suit in the present form is not
maintainable ? OPD
4. Whether the plaintiff is entitled to the partition of
the suit property as prayed in the plaint ? OPP
5. Whether the suit has been properly valued for the
purposes of court fee and jurisdiction ? OPD
6. Whether the plaintiffs are barred by their act and
conduct to file the present suit ? OPD
7. Whether the suit is bad for non-joining of
necessary parties ? OPD
8. Whether the plaint is signed by Hardev Sigh, if not,
its effect ? OPD
9. Whether the defendants have made improvements
on the suit property ? If so, its effect ? OPD
10. Whether the defendant has become the owner of
the suit property as alleged in the written statement ?
OPP
11. Whether the site plan produced by the plaintiff is
incorrect ? OPD
12. Relief.
4. On issue No. 1 it was held that the plaintiff-respondent No.5 -
Surinder Singh - was a duly appointed attorney of the plaintiff-respondent
Nos.1 to 4. On issue Nos.2 and 10 i.e. the issue "whether the plaintiffs were
integrity of this order/judgment
RSA No.2134 of 1989 -4- 2024:PHHC:057521
in joint possession and ownership to the extent of half share" and "whether
the defendants have become owner of the suit property as alleged in the
written statement" it was held by the Trial Court that the plaintiff-
respondents and the defendants were owners to the extent of 1/2 share each.
It was held that there was no evidence qua adverse possession and that in the
year 1983 the defendant No.1-appellant herein had filed a suit qua property
Nos.A and B. The said suit was for declaration and the stand taken by the
defendant No.1-appellant himself was that the plaintiffs and the defendants
were co-owners. Certified copy of the said judgment and decree are Ex.P7
and Ex.P8 on the record. Hence, qua the plea regarding property Nos.A and
B it was held that the defendant No.1-appellant had not become owner by
way of adverse possession. Regarding property No.C it was held that even
though the property may have been redeemed, however, after redemption the
property would have reverted only to Ishar Singh and on his death to the
plaintiffs and the defendants. Accordingly, the issues were disposed off. It
was, however, held by the Trial Court that the plaintiff-respondents were not
in possession of their shares in the suit property and hence they should have
filed the suit for possession and were not entitled to suit for partition. The
suit was accordingly dismissed. Aggrieved by the judgment and decree
passed by the Trial Court an appeal was preferred by the plaintiff-
respondents and cross-objections were preferred by the defendant No.1-
appellant herein. The First Appellate Court held that qua property Nos.A and
B the plaintiff-respondents and the defendant No.1-appellant were co-
owners as there was no evidence led by the defendant No.1-appellant herein
qua adverse possession. It was further held that ouster was not proved and
reliance was placed on the law laid down by the Full Bench of this Court in
integrity of this order/judgment
RSA No.2134 of 1989 -5- 2024:PHHC:057521
the case of Bhartu vs. Ram Sarup [1981 PLJ 204] wherein it was held that
the possession of a joint property by one co-owner in the eyes of law is the
possession of all. As regards property No.C, the findings of the Trial Court
were affirmed. The First Appellate Court thereafter held that the suit had
wrongly been dismissed by the Trial Court having once held that the
plaintiffs and the defendants were co-owners to the extent of 50% each and
that the defendant No.1-appellant had not become owner of the entire
property by way of adverse possession. The suit for partition was
maintainable. Accordingly, the cross-objections were dismissed and the
appeal was allowed vide the impugned judgment and decree dated
16.05.1989. Hence, the present regular second appeal by the defendant No.1-
appellant.
5. Learned counsel appearing on behalf of the defendant No.1-
appellant would contend that the defendant No.1-appellant had become
owner by way of adverse possession of property Nos. A and B. It is further
the contention that in the evidence of the plaintiff-respondents it had been
deposed that he had never visited the place after his father's death and
therefore it proves adverse possession. Qua property No.C it was contended
that once the property has been redeemed by the defendant No.1-appellant
he became owner of the same by efflux of time.
6. Per contra learned counsel for the plaintiff-respondents would
contend that the defendant No.1-appellant had failed to prove that he had
become owner of the property Nos.A and B by way of adverse possession. It
is further the contention that qua property No.C both the Courts had
concurrently held that once the property was redeemed it would be deemed
to be redeemed in favour of Ishar Singh and on his death the plaintiff-
integrity of this order/judgment
RSA No.2134 of 1989 -6- 2024:PHHC:057521
respondents and defendant No.1-appellant would have become co-owners of
the same.
7. I have heard the learned counsel for the parties.
8. In the present case both the Courts concurrently found that
while property Nos.A and B were concerned the defendant No.1-appellant
had failed to prove that he had become owner of the suit properties by way
of adverse possession. Ex.P7 is a copy of the judgment and decree dated
27.02.1985 passed in a suit filed by the defendant No.1-appellant himself
stating therein that he and the plaintiff-respondents were co-owners of the
suit property. Having taken that stand in the year 1985 and the judgment and
decree having been passed in the said case on 27.02.1985, the argument of
learned counsel for the defendant No.1-appellant that the defendant No.1-
appellant has become owner by way of adverse possession cannot be
accepted. In any case none of the ingredients of adverse possession have
been proved by the defendant No.1-appellant. He has not been able to show
ouster of the plaintiff-respondents from the suit property. Qua property No.C
the learned counsel for the defendant No.1-appellant has not been able to
convince this Court that the defendant No.1-appellant had become owner of
the suit property by merely redeeming the mortgage. The property was
mortgaged by Ishar Singh. It is not the case of the defendant No.1-appellant
that he had purchased the mortgagee rights from the mortgagee. It is a
specific case that he had redeemed the property. The First Appellate Court
had held that principle of subrogation would apply and the defendant No.1-
appellant could retain its possession till he is paid the share of the mortgage
amount. However, he does not become the exclusive owner of the property
to the exclusion of the plaintiff-respondents and defendant No.2. Learned
integrity of this order/judgment
RSA No.2134 of 1989 -7- 2024:PHHC:057521
counsel for the defendant No.1-appellant has not been able to show any law
to show that defendant No.1-appellant on redeeming the property would
become the owner to the exclusion of the other co-owners. No other
argument has been raised.
9. In view of the above, no question of law much less any
substantial question of law arises in the present case. The present appeal
being devoid of any merit is accordingly dismissed. Pending applications, if
any, stand disposed off.
( ALKA SARIN )
JUDGE
29.04.2024
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment
