Punjab-Haryana High Court
Roop Chand vs Kirpal Singh Others on 15 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:039219
RSA No.2346 of 1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2346 of 1994 (O&M)
Reserved on:07.03.2024
Date of Order:15.03.2024
Roop Chand(Deceased) through LRs
.Appellant
Versus
Kirpal Singh and others ..Respondents
RSA No.2489 of 1994(O&M)
Kirpal Singh
.Appellant
Versus
Roop Chand(Deceased) through Lrs and others ..Respondents
RSA No.2396 of 1994(O&M)
Roop Chand(Deceased) through LRs
.Appellant
Versus
Kirpal Singh ..Respondent
Roop Chand(Deceased) through LRs
.Appellant
Versus
Kirpal Singh and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. S.S.Rangi, Advocate, for the appellant(s)
Mr. Gurmeet Singh Saini, Advocate, for
Mr. S.C.Chhabra, Advocate
for the appellant (in RSA-2489-1994)
for the respondent (in other cases)
ANIL KSHETARPAL, J
1. With the consent of the learned counsel representing the parties,
a batch of four connected regular second appeals filed against a common
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judgment passed by the First Appellate Court while deciding as many as five
connected appeals shall stand disposed of by this order.
2. RSA No.2346, 2774 and 2396 of 1994 have been filed by Sh.
Roop Chand, whereas RSA No.2489 of 1994 has been filed by Sh. Kirpal
Singh.
3. In order to comprehend the issues involved in these cases, the
relevant facts, in brief, are required to be noticed.
4. Sh. Kirpal Singh filed a suit against Sh. Shera Ram, Sh. Roop
Chand etc. for grant of decree of declaration that he has become owner of 61
kanals and 6 marlas by way of adverse possession as he took wrongful
possession of the property in the year 1950 and he has been in open,
continuous and hostile possession till date. It was asserted that Sh. Wasan
Singh, the Kirpal Singh's father, was allotted this land in lieu of the land left
by him in Pakistan and Sh. Kirpal Singh and his brother Sh. Dogar Singh
cultivated the land. Subsequently, Sh. Shera Ram was allotted the land but
he never came to India. Sh. Shera Ram died in Pakistan on 30.11.1986. Sh.
Dogar Singh, his brother, shifted to Karnal in the year 1960. He has been in
adverse in an open and hostile possession of the property measuring 61
kanals and 6 marlas along with share in the wells located in khasra
no.1M//26, 5M//27, 7M//26.
5. On the request of the plaintiff, the name of Sh. Shera Ram was
deleted from the array of parties vide order dated 22.12.1989. Sh. Kirpal
Singh while filing the written statement submitted that Sh. Shera Ram died
on 09.12.1988 and before his death he executed a Will dated 15.08.1988 in
his favour. Defendant no.4-Bikar Singh has purchased land measuring 46
kanals and 16 marlas from Sh. Shera Ram vide registered sale deed dated
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22.10.1981.
6. In the second suit, Sh. Bikkar Singh claimed decree for
possession with respect to land measuring 46 kanals and 14 marlas which he
has allegedly purchased from Sh. Shera Ram through Sh. Roop Chand. The
third suit was filed by Sh. Roop Chand against Sh. Kirpal Singh seeking
possession of 14 kanals and 2 marlas land.
7. Both the courts have held that in fact Sh. Shera Ram never
came to India from the area which now forms part of the Pakistan. In fact,
Sh. Roop Chand has been wrongly projecting that Sh. Shera Ram resides
with him and he has executed Will in his favour. The Courts have also held
that the sale deed in favour of Sh. Bikar Singh with respect to land
measuring 46 kanals and 14 marlas would not confer any right. Sh. Kirpal
Singh is not proved to have perfected his title by way of adverse possession
and he is in illegal possession.
8. However, the trial court held that Sh. Kirpal Singh is tenant in
possession of the property and he can be evicted in due course of law. The
court also declared that the property has escheated in favour of the State of
Punjab as Sh. Shera Ram died issueless in Pakistan on 30.11.1986.
9. As already noticed as many as five first appeals were filed. On
re-appreciation of the evidence, the First Appellate Court has held that Sh.
Kirpal Singh is not proved to be tenant and therefore, he is in illegal
possession. With the aforesaid modification, the First Appellate Court
affirmed the judgment of the trial Court.
10. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the digital scanned record of the courts below.
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11. The learned counsel representing Sh. Roop Chand contends that
the suit filed by Sh. Kirpal Singh was bad for non-joinder of parties because
the name of Sh. Shera Ram was deleted from the array of parties vide order
dated 22.12.1989. For claiming declaration on the basis of adverse
possession, the person is required to admit ownership of the true owner. Sh.
Kirpal Singh denies the allotment in favour of Sh. Shera Ram. He submits
that Sh. Kirpal Singh is not entitled to decree of declaration that he has
become owner by way of adverse possession. He has also contended that
the certificate of death showing that Sh. Shera Ram died in Pakistan on
30.11.1986 has not been proved and Sh. Kirpal Singh has no locus to
challenge the correctness of Will particularly when two attesting witnesses
have already been examined to prove the will in accordance with Section 68
of the Indian Evidence Act, 1872.
12. Per contra, the learned counsel representing Sh. Kirpal Singh
has submitted that Sh. Kirpal Singh has become owner by adverse
possession because he is in possession of the property from the year 1950
and he has been in open and hostile possession till date.
13. This court has considered the submissions of the learned
counsel representing the parties, analysed and evaluated the arguments of the
learned counsel representing the parties.
14. From careful reading of the record, it is evident that Sh. Roop
Chand entered into two agreements to sell, first in favour of Sh. Kashmir
Singh and Sh. Amrik Singh and the second in favour of Sh. Shabeek Singh,
brother of Sh. Kirpal Singh. Subsequently, Sh. Roop Chand promised to
produce Sh. Shera Ram for execution of the sale deeds, however, he failed.
Hence, two suits were filed for recovery of the earnest money against Sh.
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Roop Chand. Sub Judge Ist Class held that Sh. Roop Chand fabricated the
Power of Attorney allegedly executed by Sh. Shera Ram. Sh. Assa Singh
has wrongfully misrepresented himself as Sh. Shera Ram. These facts were
asserted by the plaintiff-Kirpal Singh while filing the suit. The defendant
while replying stated that Sh. Shera Ram was not party to the aforesaid suit,
hence, the aforesaid finding is not binding upon Sh. Shera Ram. However, it
may be noted here that Sh.Roop Chand was party to the aforesaid suit,
hence, it is binding on him. Moreover, Sh. Roop Chand filed the first
appeal. During the pendency of the first appeal, he agreed to refund the
amount hence a consent order was passed which is Ex.D13 on the trial court
record. Thus the finding of the Sub Judge Sh. N.S.Mudra, was never
reversed. Moreover, it is also the case of Sh. Kirpal Singh that Sh. Assa
Singh while misrepresenting himself as Sh. Shera Ram filed a petition under
Section 14-A (ii) of the Punjab Security of Land Tenures Act, seeking
eviction of Sh. Kirpal Singh from land measuring 14 kanals. On
31.12.1978, the Assistant Collector Ist Grade dismissed the application on
the ground that Sh. Shera Ram never filed this application and that Sh. Assa
Singh has wrongfully misrepresented himself as Sh. Shera Ram. The appeal
as well as revision petition filed against the order of the Assistant Collector
were dismissed. This fact is also not disputed by Sh. Roop Chand while
filing the written statement.
15. In view of the aforesaid position, it is evident that Sh. Shera
Ram was impleaded as party, however, his name was deleted as he never
came to India from the area of Pakistan. He died in Pakistan on 30.11.1986.
This fact is established from Ex.D14 which reveals that in the jamabandi
which was received by the Rehabilitation Department, Jalandhar, from
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Pakistan shows that Sh. Shera Ram son of Sh. Ghashitu, caste Scheduled
Caste was owner of the property. The certificate of his death attested by the
High Commission of India in Pakistan has been produced which proves that
Sh. Shera Ram died on 30.11.1986, at the age of 90. Still further, it has
come on record that originally Sh. Kirpal Singh entered into possession as
tenant and he has been paying Batai to Sh. Roop Chand. Hence, he cannot
claim adverse possession. He has been in litigation for quite some time.
16. The next argument of the learned counsel has no substance
because the certificate Ex.P6, has been issued, attested and counter signed
by the High Commission of India in Pakistan. Sh. Roop Chand has not led
any evidence to controvert that fact. Sh. Roop Chand has claimed the
property left behind by Sh. Shera Ram on the basis of Will. Both the courts
have recorded the following reasons to discard the Will.
(1) Sh. Roop Chand used to attend the proceedings of the
Court in this suit, however, he did not step into the
witness box to stand cross-examination on vital points.
Hence, adverse inference was drawn.
(2) Though, Sh. Roop Chand claims that Sh. Shera Ram was
residing with him. But Sh. Roop Chand has failed to
produce on record any ration card or voter list to show
that Sh. Shera Ram was residing with him.
(3) Sh. Roop Chand claims that Sh. Shera Ram died in
December, 1986, whereas the death certificate was issued
on 01.06.1986. Thus, the court found it suspicious.
(4) Both the courts have also held that Sh. Roop Chand was a
Brahmin and Sh. Shera Ram was a Scheduled Caste.
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There is no evidence that from 1947, he resided with the
family of Sh. Roop Chand. Moreover, there was finding
by the civil court as well as the revenue authority to prove
that Sh. Shera Ram never came to India and it was Sh.
Roop Chand, who was manipulating the things.
17. The learned counsel representing Sh. Roop Chand is not correct
in contending that Sh. Kirpal Singh has no right to contest the Will. It may
be noted here that in the facts and circumstances of the present case, the
court was required to examine whether an attempt is being made to usurp the
property.
18. Keeping in view the aforesaid discussion, all the four appeals
are dismissed with observation that the property has escheated in favour of
the State of Punjab. A copy of the judgment be forwarded to the Chief
Secretary, Punjab, who is expected to take steps to get the possession of the
property from unauthorised occupants.
19. With these observations, all the appeals are dismissed.
20. All the pending miscellaneous applications, if any, are also
disposed of.
15th March, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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