Punjab-Haryana High Court
Prem Parkash And Ors vs Ram Nath And Ors on 18 March, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
RSA No.1525 of 1987 (O&M) oa 2024:PHHC:038853
155 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1525 of 1987 (O&M)
Date of decision : 18.03.2024
Prem Parkash& ors, hee Appellants
versus
Ram Nath (since deceased) & ors, saws Respondents
CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
KK
Present :- Mr. Rajinder Goel, Advocate
for the appellants.
Mr. Vikram Singh, Advocate and
Mr. Abhinav Sood, Advocate
for defendant No.2-respondent No.1.
ae 3 2
PANKAJ JAIN, J. (ORAL)
1 Present appeal is directed against judgment and decree
passed by Lower Appellate Court whereby judgment & decree passed by
the trial Court was reversed and suit of the plaintiff-appellant seeking
possession of the suit land was dismissed.
2 The dispute primarily is between two branches of the
common ancestors Devi Parshan @ Devi Parsan. He had two sons Jati
and Kundan. Plaintiff No.1, 2, 3 & 4 are the successors in interest of
Jati and the defendants i.e. Ram Nath is son of Kundan. Plaintiff sought
possession of the suit land which has been described in the plaint as
agricultural land measuring 31 kanal 12 marlas comprising Rect. No.166
killa No.25/2 Rect. No.185 Killa No.4,5,6/2,7 Khasra. No.1085 entered
at Khewat No.718/672 as per Jamabandi for the year 1970-1971 Ex. P-1.
The appellants propounded mortgage deeds dated 13.04.1936 which are
RSA No.1525 of 1987 (O&M) 2h 2024:PHHC:038853
unregistered documents brought on record as Exhibit P-2 & P-3. It was
claimed by the appellants/plaintiffs that Kundan mortgagor having failed
to redeem the mortgages, the plaintiffs are absolute owners in
possession of the land in question.
3 Defendants in written statement denied the claim of the
plaintiffs-appellant. Only contesting party i.e. respondent No.1-Ram
Nath claimed the mortgage deeds as sham transactions and further
claimed that he was in possession of the whole suit land being tenant
under co-sharers on a payment of rent @ Rs.100/- per annum. He
further asserted to have become owner of the entire land claiming that
his possession was adverse. Trial Court on the basis of pleadings
framed the following issues :-
I) Whether Kundan son of Devi Parsan @ Ghasitu resident of
Fatehpur, mortgaged with possession the land measuring 9
bighas 4 biswas in favour of plaintiff No.1 and father of plaintiff
No.2 to 4 as alleged in para No.1 of the plaint? OPP
2) Whether during the consolidation of holdings land measuring 31
kls 12 mls as alleged in para No.2 of the plaint has been allotted
to the plaintiffs and defendants No.6 & 7 jointly? OPP
3) Whether defendants No.1 to 5 are the successor-in-interest of
Kundan Lal mortgagor and have succeeded his estate? OPP
4) Whether the mortgagor and defendant No.1 to 5 have failed to
redeem the mortgage in question within the prescribed time as
alleged in para No.4 of the plaint, if so its effect? OPP
5) Whether the defendant No.7 has never been a mortgagee as
alleged in para 6 of the plaint? OPP
6) Whether the plaintiffs have become the owners of the four shares
belonging to defendants No.1 to 5 by way of prescription, if so to
what extent? OPP
7) Whether the suit is not maintainable? OPD
8) Whether the suit of the plaintiff is a malafide one? OPD
9) Whether the plaintiffs are estopped to file the present suit for
POOJA SHARMA
2024.04.01 18:06
RSA No.1525 of 1987 (O&M) 3n 2024:PHHC:038853
their own act and conduct? OPD
10) Whether the suit is time barred as alleged in para No.4 & 5 of
the additional pleas taken in the written statement filed on behalf
of defendant No.2? OPD
11)Whether defendants No.1 to 5 have become owners of the suit
property by way of adverse possession? OPD.
12) Relief:
4 Holding that the limitation to redeem the mortgages had
expired, by efflux of time, the plaintiffs have become owner, the trial
5 In appeal preferred by defendant No.2, lower Appellate
Court found that the mortgage deeds were infact never acted upon. It
was held that defendant No.2 was able to prove that his tenancy over
both parcels of the suit lands on payment of batai (rent @ Rs.100/- per
6 Learned counsel for the appellants while assailing the
judgment & decree passed by the Appellate Court very fairly admits that
so far as the findings recorded by the trial Court with respect to the
plaintiffs having become the owner by efflux of time being mortgagee in
possession is concerned, the same cannot be sustained in view of law
laid down by Supreme Court in Singh Ram (D) through LRs Vs. Sheo
Ram & ors. 2014 AIR (Supreme Court) 3447. However claims that
the ownership of the suit land is not in dispute. The defendant No.2 has
taken mutually distinctive pleas of tenancy as well as adverse possession
in the same breath, thus suit for possession ought to have been decreed.
He claims that the finding recorded by the appellate Court that defendant
No.2 had been able to prove his tenancy is demolished by his plea of
adverse possession and the finding cannot be sustained.
POOJA SHARMA
RSA No.1525 of 1987 (O&M) 4s: 2024:PHHC:038853
7 Learned counsel for defendant-respondent No.1, however,
claims that it is a well reasoned judgment based upon documents. As
per the Revenue record, the defendant No.2 had been recorded as tenant
in possession of his co-sharer on a payment of annual rent of Rs.100/-.
He thus submits that the present appeal deserves to be dismissed as the
appellants being plaintiffs were to discharge initial onus which they
8 Having heard rival contentions of the parties and after
going through records of the case, this Court is of the considered
opinion that so far as the finding recorded by the trial Court relying
mortgage deeds, the same cannot be sustained in the light of dictum of
law laid down by Supreme Court in Singh Ram's case supra. However,
in order to assert possession, the plaintiffs were required to prove legal
right vested in them to claim it. In the present case, the plaintiffs being
co-sharers is admitted by the defendant. Thus the right vested in
plaintiff has gone un-rebutted.
9 Coming onto the next issue as to whether the defendant-
respondent No.1 can foreclose the right of the plaintiffs claiming
tenancy, this Court find that once the defendant asserted his claim over
the suit property on the basis of adverse possession his plea of tenancy
gets defeated. He cannot approbate and reprobate in the same breath. So
far as the finding of the lower appellate Court is concerned, the same is
based upon jamabandi which is on record. Presumption of truth which
attached to record of rights is rebuttable. In the present case it stands
rebutted by admission made by the defendant when he asserted adverse
RSA No.1525 of 1987 (O&M) 5n 2024:PHHC:038853
possession over the suit land claiming that it was hostile and not
permissive. So far as plea of adverse possession is concerned, the same
is also half baked. In the written statement filed by the defendant, there
is no plea as to when the possession of the defendant became adverse or
hostile to the rights of the plaintiffs.
10 In view of above aforesaid discussions, this Court finds that
the impugned judgment/decree passed by the lower appellate Court
cannot be sustained. The same is hereby set aside.
11 Suit of the plaintiffs is decreed and judgment and decree
passed by the trial Court is restored but for different reasons as stated in
aforegoing paras.
12 Appeal stands allowed.
(PANKAJ JAIN )
JUDGE
18.03.2024
Pooja sharma-I
Whether speaking/reasoned Yes
Whether Reportable : No
