Gurdwara Sahib v. State Of Punjab And Others

Rakesh Kumar Garg, J.

1. This is plaintiffs second appeal challenging the judgment and decrees of the Courts below whereby, his suit for declaration to the effect that plaintiff is owner in possession of the suit land and that the defendants have no right, title or interest in the same and the record of rights are wrong and are liable to be corrected with consequential relief for permanent injunction restraining the defendants from dispossessing the appellant forcibly or otherwise interfering in any manner in his peaceful possession over the suit land, was dismissed.

2. The case of the plaintiff/appellant in brief is that the suit land was granted to the plaintiff by Maharaja Sahib of Erstwhile Kalsia State in the year 1934 and it was mutated in its name. Consequently, the entries were also made in the Jamabandi for the year 1934-35. It was further averred that plaintiff was in continuous possession of the suit land as owner and in the revenue record there were wrong entries to the effect that Sarkar Daulat Madar Kalsia Bahadur is the owner of suit land. These entries are wrong and illegal. The plaintiff is in continuous, peaceful and hostile possession of the suit land for more than 60 years. Thus, the plaintiff also claimed ownership of the suit property on the alternative plea by way of adverse possession.

3. In the written statement the defendants contested the claim of the appellant. All the averments made in the plaint were denied and controverted inter alia pleading that the suit property was owned by the Punjab Government and appellant is in unauthorized possession. It was denied that the suit property was granted to the plaintiff or the plaintiff had become owner of the same by way of adverse possession.

4. The Trial Court after hearing the Counsel for the parties and perusing the evidence on record returned findings on all the issues against the plaintiff and dismissed the suit.

5. Not satisfied with the judgment and decree of the trial Court, the plaintiff filed an appeal. In appeal, the appellant did not press the findings of the trial Court on issue No. 1 and pressed his findings only on issue No. 2 and argued that the continuous possession of the plaintiff over the suit property has ripened into title and therefore the plaintiff has become the owner in possession of the suit property by way of adverse possession. The Lower Appellate Court while dismissing the appeal filed by the plaintiff held that the plaintiff has utterly failed to prove its title by way of adverse possession.

6. Still not satisfied, the present appeal has been filed by the plaintiff in this Court challenging the judgment and decrees of the Courts below.

7. Counsel for the appellant has vehemently argued that there was sufficient evidence on record to prove the ownership and possession of the plaintiff on the record as the entries about the ownership and possession of the plaintiff/appellant found mention in the jamabandi for the year 1934-35 and the entries in the ownership column were rejected by the Courts below without any reason. Learned Counsel for the appellant also argued mat the continuous, peaceful and hostile possession of the appellant for the last over 60 years has been proved on record and, therefore, the Courts below have erred at law while holding that he possession of the appellant has not ripened into ownership by way of adverse possession. On the basis of these arguments, learned Counsel for the appellant has argued that the following substantial questions of law arise in this appeal for the kind consideration of this Court.

1. Whether trial Court was justified in ignoring Ex.P-12 i.e. Jamabandi for the year 1934-35 because its translation has not been placed on file in vernacular as the said jamabandi is in Urdu language

2. Whether the trial Court as well as 1st Appellate Court is justified in declining the plea of adverse possession over the land in dispute when the defendants themselves admit the possession of the plaintiff/appellant over the suit land since 1934-35

8. Lastly, the learned Counsel has prayed that the appeal be accepted and the judgment and decrees of the Courts below be set aside and the suit of the plaintiff-appellant be decreed with costs.

9. However, on the other hand, Mr. Rajesh Garg, Additional Advocate, Punjab has vehemently argued that the appellant has not raised the first argument before the Lower Appellate Court and therefore in the second appeal he cannot raise this argument in this Court. It was further argued by the learned Counsel for the respondents that both the Courts below have recorded a finding of fact that the adverse possession of the appellant has not ripened into his ownership and moreover the plea of adverse possession being the plea to be taken in the defence, cannot be taken up by the plaintiff while filing this suit and thus the present appeal has no merit and is liable to be dismissed.

10. I have heard learned Counsel for the parties and perused the record of the appeal. I find force in the contentions raised by learned Counsel for the respondents. In Bachhaj Nahar v. Nillima Mandal and Anr. J.T. 2008 (13) S.C. 255 the Honble Supreme Court has authoritatively laid down that if an argument has been given up or has not been raised, same cannot be taken up in the Regular Second Appeal. It is also relevant to mention here that in Bhim Singh and Ors. v. Zile Singh and Ors. , this Court has held that no declaration can be sought by a plaintiff with regard to ownership on the basis of adverse possession as such plea is available only to a defendant against the plaintiff. Similarly, in R.S.A. No. 3909 of 2008 titled as State of Haryana v. Mukesh Kumar and Ors. (2009) 154 P.L.R. 753, decided on 17.03.2009 this Court has also taken the same view as aforesaid in Bhim Singhs case (supra).

Thus, I find no merit in this case.

No substantial question of law arises.

Dismissed.