Rajesh Bindal, J.
1. The plaintiff-appellant having remained concurrently unsuccessful before the Courts below in his plea seeking declaration to be the owner of the suit land, approached this Court through the present regular second appeal.
2. The plaintiff filed a suit for declaration to the effect that he is owner in possession of the land measuring 5 kanals 4 marlas comprised in khewat No. 45 khatauni No. 139 khasra Nos. 17M/16/1/1 (2-16) 16/1/2 (2-12) amended vide order dated 20.4.1981 vide jamabandi 1973-74 situated in the area of village Lokhe Kalan, Tehsil Zira with a consequential relief that the defendants be restrained from asserting their right or interest and interfering in his peaceful possession.
3. The claim of the plaintiff was contested by the defendants on the grounds that the plaintiff-appellant is not the owner of the suit land and that on 11 June, 1951 the defendants-respondents in 1/4 share, Suba Singh in 1/2 share and Darshan Singh plaintiff in 1/2 share and Balbir Singh in 1/2 share purchased the land measuring 138 Kanals 2 Marlas through a registered sale deed from Bhola Singh and Sawan Singh son of Thakar Singh, that on 28.10.1953 Suba Singh and Darshan Singh plaintiff sold Land measuring 21 Kanals 9 Marlas bearing Khasra No. 2519/1581 (8-3), 1605 (13-6) and land measuring 3 Kanals 18 Marlas being 1/2 share of 7 Kanals 16 Marlas bearing Khasra No. 5224/1585 total area 25 kanals 7 marlas by a registered deed in favour of defendants and that mutation No. 1225 was sanctioned and possession was taken by the vendees, that consolidation of holdings took place in the village and Khatoni Istemal was prepared according to the above mentioned sale deed and defendants-respondents and Sardara Singh owned some other land and Naksha Haqdarwar of plaintiff-appellant Suba Singh and Sardara Singh were separately prepared but Naksha Haqdarwar of defendants-respondents was prepared separately that the land measuring 25 Kanals 7 Marlas purchased from Suba Singh and Darshan Singh vide registered sale deed dated 28.10.1953 in favour of Sardara Singh 1/2 share and Kartar Singh.
4. Darbara Singh in 1/2 share was not included in their Naksha Haqdarwar but this land was included in the Naksha Haqdarwar of Darshan Singh, plaintiff-appellant and Suba Singh who got land in lieu of the land sold by them in consolidation of holdings i.e. Darshan Singh and Suba Singh were allotted more land equivalent to 25 kanals 7 marlas then they are entitled to and the action was taken under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragment) Act, 1949 for making necessary entries in the Revenue Records and the Director vide his memo No. PA/1813 Camp dated 21.8.1979 advised to treat applications of defendants-respondents as a petition under Section 42 of the said Act, and the plaintiff and Suba Singh were given notice and they appeared before the Additional Director of Consolidation Holdings of Punjab, Jullundur, and it was held that the defendants-respondents stood allottees in their claim less to the extent of 13 kanals 6 marlas ordinary and that this was an omission on the part of the consolidation authorities and the Additional Director after making full inquiry vide order dated 18.1.1980 remanded the case to the Consolidation Officer and for further investigation to the claim of the parties and supplying the deficiency to the defendants-respondents and Sardara Singh after hearing the necessary parties. The consolidation Officer summoned the plaintiff and Suba Singh and allotted 6 kanals 12 marlas bearing Khasra No. 4 M/12 East (6-0) 13/1 (0-12) out of the land of Suba Singh and 5 kanals 8 marlas bearing Khasra Nos. 17 M/16/1/1 (2-16), 16/1/2 (North) (2-12) out of the land Darshan Singh to the defendant and Sardara Singh jointly vide order dated 26.2.1980 and the consolidation Officer was desired to deliver the possession of the suit land to the defendants-respondents and Sardara Singh in due course of law. That Khasra No. 6 M/12 (8-0) is in possession of Sardara Singh and that the plaintiff-appellant has no right in Khasra Nos. 17 M/16/1 (202) and 16/1/2 (1-10) that they have concealed the true facts from the court and therefore, they are not entitled to relief of permanent injunction and that the defendants-respondents and Sardara Singh would take possession of the land allotted to them in due course of law and that the suit of the plaintiff-appellant be dismissed with costs.
5. The learned trial Court framed the following issues in the suit:
1. Whether Sardara Singh is necessary party? OPD.
2. Whether this Court has no jurisdiction to try this case? OPD
3. Whether plaintiff is owner of the suit land, and is in possession in what capacity? OPD.
3A. Whether the plaintiff has become owner by way of adverse possession? OPP.
4. Relief.
6. While rejecting the plea of the plaintiff, seeking a direction to the effect that the plaintiff-appellant has become owner of the suit land by way of adverse possession, ordered that since the plaintiff-appellant was found to be in possession of the suit land, the defendants-respondents were restrained from forcibly dispossessing the plaintiff-appellant.
7. Having failed, as above, the plaintiff filed an appeal before the First Appellate Court. There also the plaintiff failed and findings recorded by the trial Court were upheld, the plaintiff thereafter, filed the present regular second appeal before this Court.
8. I have heard Sh. S.C. Khungar, Advocate for the appellant and Sh. Gaurav Chopra, Advocate for the respondents and with their assistance have gone through the relevant pleadings and documents on record.
9. The appellant at the time of hearing of appeal on 27.4.2005, submitted the following substantial questions of law arising in the present appeal:
i) Whether the judgments and decrees passed by both the courts below are perverse?
ii) Whether the Jamabandies Ex. P-2, P-3 and P-9 and Khasra Girdawaries Ex. P-4 to P-7 in respect of the land in dispute were not considered in right perspective wherein the ownership and possession of the appellant was established?
iii) Whether the order vide which the appellant got the land in dispute redeemed establishes that the appellant is the owner of the said land?
iv) Whether the order passed by the Additional Director Consolidation Punjab dated 18.1.1980 (Ex. D-2) is a nullity in the eyes of law?
10. While addressing the arguments, the counsel for the appellant could not point out any error in the judgments of both the Courts below, which could lead to the conclusion that the finding recorded by the Courts below on the issue of ownership of the land in dispute was in any way perverse. The learned lower appellate Court while upholding the judgment and decree of the trial Court on issue No. 3-A recorded its findings to the following effect:
9. On behalf of the appellant the learned Counsel for the appellant vehemently assailed the findings of the learned lower court on issue No. 3-A. The learned Counsel submitted that the plaintiff-appellant has been in continuous possession of the suit land since 1956-57 and is so entered in the copy of the jamabandi for the year 1956-57 which is Ex. P1 and Ex. P.9 wherein Darshan Singh, appellant is entered as owner as mortgagor while Ajaib Singh, Sardara Singh sons of Ghulla Singh are entered as mortgagees and the mortgagees are also entered to be impossession of that land. The copy of the jamabandi for the year 1961-62, which is Ex. P2 reveals that the said mortgage was redeemed by the present appellant vide mutation No. 1833 and copy of that mutation is Ex. P10 then in the copy of jamabandi for the year 1973-74 which is Ex. P3. Darshan Singh is entered to be the owner of the suit land a Khudkashat. In the copies of Khasra girdawaries Ex. P4 to Ex. 8 Darshan Singh is entered to be in possession of the suit land as owner. The last khasra girdawari is for the year 1978-79. It is worth mentioning that even in the impugned judgment, the learned trial court held that the plaintiff-appellant is still in possession of the suit land on the basis of these entries, the learned Counsel for the appellant submitted that Darshan Singh appellant has been in possession of the suit land as owner since 1956-57 and that the order dated 26.2.1980 copy of which is Ex. D3 passed on the basis of the order copy of which is Ex. D2 remained in papers but it was never implemented by way of dispossession of the appellant. So, the learned Counsel for the appellant submitted that Darshan Singh appellant is established on record to be in continuous possession of the suit land since 1956-57 so even if the appellant is to be considered not to be the owner of the suit land, then he was in adverse possession and such adverse possession mature into title. The contention of the learned Counsel is devoid of force as there is no allegation in the plaint nor there is any cogent evidence that the present appellant had trespassed into the suit land and that he continued to be in possession of the suit land as a trespasser to the notice of the true owners for a continuous period of more than 12 years. The mere possession of the appellant which was obviously based on a wrong order of the consolidation authorities allotting the suit land to the present appellant, does not mean that he was in possession of the suit land as a trespasser. In fact the plaintiff-appellant came into possession of the suit land on account of an omission on the part of the consolidation authorities, whereby the present defendants-respondents were deprived of their legal right. The mere possession of the appellant under the peculiar circumstances of the case, do not mean that the appellant is in adverse possession of the suit land so as to mature his title. The possession to be adverse must satisfy the fundamental ingredients of continuity, publicity and extent to the knowledge of the true owners. In the instant case, the suit land which actually belongs to the respondents was comprised in the naksha Haq-Dar-war of the appellant by omission or mistake on the part of the consolidation authorities, so the present appellant cannot be said to have entered into the possession of the suit land as a trespasser nor he could be said to have continued to be in adverse possession of the suit land. I do not find any error of informity in the findings recorded by the learned lower court on issue No. 3-A. Those findings are also affirmed.
11. The appellant has failed to satisfy the Court as to in what manner the jamabandies and Khasra girdwaries referred to above were not considered in their right perspective. The only effort made by the appellant was to challenge the concurrent findings of fact recorded by both the Courts below by trying to re-read the evidence and seek indulgence of this Court to re-appreciate the same, which in the opinion of the Court is not permissible in second appeal. The counsel for the appellant though took pains to address arguments to show that the conclusion reached by the Courts below on the issue of ownership of the land in question could not possibly be reached at on the basis of the pleadings and evidence on record, but he miserably failed in his efforts. Even if a second opinion is possible on the facts and evidence on record, this Court would not like to substitute its opinion on the same unless the opinion expressed by the Courts below was patently absurd. Question at Serial No. (iv) projected by t! e appellant was not even an issue before the Courts below, hence, could not possibly be raised by the appellant before this Court.
12. In my considered opinion no question of law, much less substantial questions of law, as are sought to be projected by the appellant in the appeal, arise for consideration by this Court.
13. Faced with this situation, the counsel for the appellant relying upon a judgment of Delhi High Court in Prem Nah Wadhawan v. Inder Rai Wadhawan (1993-3) 105 P.L.R. 70 (Delhi), sought to take the plea that even if the findings on all the issues remain as such, since the plea of ownership on the basis of adverse possession could be taken by the appellant, the appellant be permitted to withdraw the suit and he be given liberty to take such plea in defence to any subsequent proceedings initiated by the respondents-defendants. This would automatically result in rendering the findings recorded by Courts below as infructuous. The counsel for the appellant did not cite any precedent, which could support his arguments to the effect that he can be permitted to withdraw the suit after suffering concurrent findings of fact against him in a hotly contested suit. The specific plea of the appellant was put to the counsel for the respondents, but he did not concede to such a plea of the appellant.
14. Counsel for the respondents has further referred to the judgments of the Hon'ble Supreme Court in the cases of Gangappa Gurupadappa Gugwad v. Rachawwa and Ors. : [1971]2SCR691 , Gulam Abbas and Ors. v. State of U.P. and Ors. : 1981CriLJ1835 , Gorie Gouri Naidu (Minor) and Anr. v. Thandrothu Bodemma and Ors. : AIR1997SC808 , Marwari Kumhar and Ors. v. Bhagwanpuri Guru Ganeshpuri and Anr. : AIR2000SC2629 , on the principles of res-judicata. There is no quarrel with the proposition of law laid down by the Hon'ble Apex Court on this principle of law.
15. As regards the plea of the appellant seeking permission to withdraw the suit is concerned, from a perusal of the judgments and decrees of both the courts below, it is evident that the plaintiff-appellant filed the suit, taking a specific plea and hotly contested the same. On the basis of pleadings of parties and the evidence on record, both the Courts below have returned a definite finding of fact that the appellant-plaintiff does not become owner of the suit land by way of adverse possession. It seems that the appellant continued with the present proceedings with an oblique intention to firstly await the result thereof and in case the appellant ultimately fails in this, then to make a request for withdrawal of the suit. In fact it is a clever device to negate the findings recorded against the appellant by both the Courts below, which ever, did not deserve any interference by this Court.
16. Order XXIII, Rule 1 of the Code of Civil Procedure gives unqualified right to the plaintiff to withdraw from a suit so long as suit is pending and no vested right had accrued in favour of the defendants. Once a suit is decided and decree passed, it conclusively determines the rights of the parties with regard to all the matters in controversy in the suit and therefore, at the stage of appeal, though it may be continuation of the suit, the plaintiff has no absolute right to withdraw from the suit.
17. The above view of mine is supported by judgment of this Court rendered in Bashir Ahmad v. Masjit Patti Niyamatpur and Ors. (1999-3) 123 P.L.R. 58 and Surinder Pal and Anr. v. Man Singh and Ors. (2005-2) 140 P.L.R. 478.
18. Now it is too late in the day to accept the plea of the appellant to permit him to withdraw the suit and indirectly set aside the findings of facts recorded against him, merely for the reasons that the appellant could not raise such a plea being a plaintiff and to permit the appellant to raise the same pleas in defence again in any subsequent litigation by the respondents. Hence, even this contention of the appellant deserves rejection and I hereby reject the same.
19. In view of the aforesaid discussion, I do not find any merit in present appeal and the same is dismissed with costs.