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
integrity of this order/judgment.
RSA-2614-1995 (O&M)
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.
integrity of this order/judgment.
RSA-2614-1995 (O&M)
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
integrity of this order/judgment.
RSA-2614-1995 (O&M)
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
integrity of this order/judgment.
