Judgment:
Rs.No.3582 of 2012(O&M) #1# IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Rs.No.3582 of 2012(O&M) Date of Decision:-23.07.2013 Gurmit Singh & Ors ......Appellants.
Versus Sadhu Ram & Ors ......Respondents.
CORAM:- HON'BLE Mr.JUSTICE JASWANT SINGH Present:- Mr.Saurabh Bajaj, Advocate for the appellants.
*** JASWANT SINGH, J.(ORAL) CM No.9560-C of 2012 has been filed seeking condonation of 15 days delay in filing the present appeal.
For the reasons stated in the application, duly supported by affidavit of clerk of the counsel for the appellants, the same is allowed and delay of 15 days in filing the present appeal is condoned.
Rs.No.3582 of 2012 Defendants/appellants are in second appeal against the concurrent findings returned by both the courts below, whereby the suit filed by the respondent nos.1 to 4/plaintiffs for separation of possession by way of partition and perpetual injunction was decreed by the learned Civil Judge(Jr.
Divn.) Kurukshetra vide judgment dated 6.12.2010 and the findings thereof have been affirmed by the learned Additional District Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh Rs.No.3582 of 2012(O&M) #2# Judge, Kurukshetra vide its judgment and decree dated 10.4.2012.
In brief, facts of the case are that the plaintiffs/respondent nos.1 to 4 stated that they along with the defendants are the owners of Gair Mumkin Bara measuring 2 Kanals 6 Marlas situated at village Shamshipur, Tehsil Thanesar, District Kurukshetra.
As per the case set out by the plaintiffs, the land in question is not fetching any profits to the plaintiffs, therefore, they are not interested any longer to keep the suit property joint and claimed its possession vide the present suit by way of decree of partition.
The suit was contested only by defendant nos.7 to 10 and defendant nos.1 to 6 were proceeded against ex-parte.
In their written statement, defendant nos.7 to 10 submitted that the plaintiffs are not the owners of the property and it is the defendants who are in possession of the entire property to the exclusion of the plaintiffs for the last more than 50 years and thus, claimed adveRs.possession over the property in question.
Hence prayer was made for dismissal of the suit.
From the pleadings of the parties issues were framed.
Both sides led evidence and after appreciating their evidence, learned trial Court decreed the suit of the plaintiffs and the findings thereof were affirmed by the learned lower Appellate Court.
Hence the present second appeal.
I have heard learned Counsel for the appellants and have gone through the case file carefully with his able assistance.
Learned Counsel for the appellants has argued that the learned Courts below have failed to appreciate the fact that their possession is very old i.e.for the last more than 50 yeaRs.as it is proved on record that earlier their forefathers were in possession of the suit land and not they are in Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh Rs.No.3582 of 2012(O&M) #3# possession of the same after constructing pucca houses.
It was further argued that during the entire integrum, they were never stopped by the plaintiffs from raising construction and possession of the defendants continued throughout.
In support of his claim, the counsel for the appellants referred to statement of Gurmeet Singh, one of the defendant who appeared as DW-1 and also the statement of one Kashmir Singh, who he claimed to be an independent witness.
It was further argued by learned Counsel for the appellant that no issue regarding adveRs.possession was framed by the learned Trial Court, although a specific plea in this regard was raised and thus, the findings recorded by both the courts below are vitiated on this point itself.
It was argued that since no issue was framed regarding adveRs.possession, learned lower Appellate Court or even this Court should frame a specific issue and either record the evidence here or should send the matter back to the trial Court for recording evidence on this aspect according to law.
To support his argument, learned Counsel for the appellant has referred to a judgment titled as Ganesha & ORS.versus GhaRs.Ram & ORS.2000(2) PLR 23.
After hearing learned Counsel for the appellants and perusing the record carefully, this Court is of the considered view that the present second appeal is devoid of any merit and the same deserves to be dismissed.
No doubt, an issue of adveRs.possession has not been framed by the learned trial Court but a perusal of the evidence led by both the parties would show that both the parties knew regarding the said stand of each other and accordingly led evidence to prove their ownership as well as plea of adveRs.possession.
Thus, once both the parties were aware of a particular issue and led evidence, then mere not framing of an issue would not vitiate Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh Rs.No.3582 of 2012(O&M) #4# the findings of courts below.
A perusal of the entire evidence led by both the parties would show that defendant nos.7 to 10 have only 15th Sahres in the entire land and they are claiming that they have raised construction over the whole land to the knowledge of the plaintiffs/respondents.
However, in order to show adveRs.possession it has to be proved by the parties that from a specific date he has been in adveRs.possession of the property and it was in the due and valid knowledge of the other party who has been outsted.
However, in the present case, there is no such evidence which would prove that there was a specific date from which the plaintiffs/respondent nos.1 to 4 were ousted and the defendants became owner of the property after fulfilling the conditions as required under Section 65 of the Limitation Act.
Before concluding, this Court deems it appropriate to deal with the judgment that has been referred to by the learned Counsel for the appellant.
In the referred judgment, the facts of the case were entirely different whereby no evidence was lead by plaintiff to counter the plea of adveRs.possession raised by defendant.
However, in the present case as stated earlier, the evidence was led by both the parties, especially the appellants to prove their adveRs.possession, which they have miserably failed to prove in the case in hand.
In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE July 23, 2013 Vinay Mahajan Vinay 2013.08.03 14:19 I attest to the accuracy and integrity of this document at Chandigarh