Bhupinder Singh and Others vs Malik Singh Mehar Singh

T.P.S. Mann, J.—Suit for permanent injunction filed by M/s Malik Singh Mehar Singh for restraining the defendants, namely Bhupinder

Singh, Gurvinder Singh and Maninder Singh and their employees, agents and assignees from interfering in any manner in its peaceful possession is

owner of the property, as described in the heading of the plaint and from raising any type of construction over any part of the vacant land of the

said property, was decreed by learned Additional Senior Sub-Judge, Pathankot vide its judgment dated 24.8.1995. The appeal filed by two out of

the three defendants against the said judgment and decree was dismissed by learned Additional District Judge, Gurdaspur vide its judgment dated

1.12.2000. Hence, the present second appeal.

The case of the plaintiff was that it had let out its shops situated on the suit property to various tenants. Some portion of the suit property was

lying vacant. Portion of the suit property marked by letters KFMN shown as red in the site plan, annexed with the plaint, was in occupation of

Public Health Department as tenant, but was recently vacated. The said portion had not been rented out by the plaintiff and thus, lying vacant.

Portion marked by letters EKLM shown red in the site plan comprising of double storey residential complex was in self occupation of the plaintiff

except for a portion of the ground floor, where Bhupinder Singh-defendant was living along with his family as licencee, being a close relative of the

partners of the plaintiff-firm. The plaintiff had left a portion on the southern side of the suit property as a passage for approach to their adjoining

property. However, the defendants were pressing the plaintiff to alienate one of its shops in their favour without any consideration. They had

started openly threatening to encroach upon vacant portions of the suit property and raise constructions. As they remain adamant in doing so, the

plaintiff firm filed the present civil suit.

The defendants opposed the suit of the plaintiff by filing their joint written statement, wherein they denied that the plaintiff was a firm or

registered with the Registrar of Firms. They also denied that the plaintiff was owner in possession of the suit property or that it had rented out the

shops to various tenants. The defendants asserted that Bhupinder Singh-defendant was owner in possession of the property byway of adverse

possession for more than 12 years before the filing of the suit. The adverse possession started in the year 1964 and had been hostile, notorious,

continuous and without payment of any rent, etc. Electricity connections and water connection were also in the name of the defendants. Earlier the

plaintiff had filed suit No. 96 of 1978 against Bhupinder Singh-defendant, wherein also said Bhupinder Singh had claimed ownership by adverse

possession. The same was sufficient notice to the plaintiff of the hostile title of defendant-Bhupinder Singh, who was living in the premises in dispute

along with other defendants, besides carrying on his business of selling ready made garments in shop constructed by him since 1983. Hence, it was

prayed that the suit be dismissed.

The learned trial Court framed nine issues on the pleadings of the parties. The controversy mainly related to Issue Nos. 2, 3 and 4, which were

found interconnected and inter linked and, thus, taken up together for discussion. The said issues are reproduced hereinbelow:

x x x x x x x x x x x x x x x x x x x x x x x x

Whether the plaintiff is owner of the entire property in dispute described in the plaint? OPP.

If issue No. 2 is proved whether the defendants have become owners of the property shown in red colour in their site plan mark A filed on

29.5.1991 by adverse possession? OPD

Whether the defendants are in possession of the suit property as licencees under the plaintiff as alleged? If so, its effect? OPD.

After perusing the evidence, learned trial Court came to a conclusion that the plaintiff firm was successful in proving its ownership over the suit

property, whereas the defendants failed to establish that they had become owners of the suit property as shown in the site plan mark A filed on

29.5.1991 by way of adverse possession. The possession of the defendants was only found to be permissive on the ground floor in the double

storey building as the plaintiff firm was also living on the first floor. Issues No. 2 and 4 were, accordingly, decided in favour of the plaintiff firm,

while issue No. 3 adjudged against the defendants,

The findings arrived at by the learned trial Court were upheld in appeal by learned lower Appellate Court when it dismissed the appeal of the

defendants on 1.12.2000.

I have heard learned Counsel for the parties and perused the judgments under appeal.

Though by filing CM. No. 1148-C of 2007, the appellants formulated the various substantial questions of law involved in the appeal yet as

observed earlier, the controversy would centre around the following only:

Whether both the courts below have misread the evidence on the file and by brushing aside the evidence illegally decreed the suit?

Whether the provisions of Section 69 of the Partnership Act are attracted in the present case of a property of individuals?

Whether the appellants have become owner in possession by way of adverse possession as the possession of appellants was open and hostile

and had ripened into ownership?

The suit property is clearly made out to be owned by the plaintiff firm. Bhupinder Singh-defendant, who appeared as DW4 is non-else than the

son-in-law of Mehar Singh since deceased. In his cross-examination, Bhupinder Singh admitted that the firm M/s Timber Private Limited was

business concern of the plaintiff firm and running timber business at Jammu as well as at Pathankot. It was also admitted by him that he was

brother-in-law of Tarlochan Singh and Harvinder Singh, partners of the plaintiff firm and employed in the previous concern/firm M/s Timber Private

Limited, which was also running saw mill in a part of the disputed property. It is the case of the plaintiff firm that Bhupinder Singh-defendant was

allowed to use a part of the property, being brother-in-law of its partner Tarlochan Singh. He was inducted only as a licencee. This fact has not

been controverted by said Bhupinder Singh as he could not explain as to how he was the owner of the property or how he had come in possession

of the same. Once it had been established that Bhupinder Singh was a licencee over the property in question, the mere fact that he had obtained

electricity connections and water connection in his name for the said facilities available in the property under his occupation is no ground to hold

that he had become its owner by way of adverse possession. He had examined Kewal Krishan, Clerk, Municipal Committee, Pathankot as DW1

to prove that under account No. 7459, a water connection had been issued in his name since 18.2.1980. He also examined Joginder Singh, Clerk

(Building) of Municipal Committee, Pathankot as DW2 to prove that Bhupinder Singh and his sons made an application on 14.12.1983 for

sanctioning the building plan, which sanction was accorded on 20.12.1983.

Similarly, two electricity connections in the name of Bhupinder Singh were proved from the testimony of Ashok Kumar, Clerk of Punjab State

Electricity Board, who was examined as DW3. Though, the plaintiff firm had filed the earlier suit on 25.4.1978, yet the aforementioned electricity

connections, water connection and building plan were sanctioned in favour of Bhupinder Singh-defendant in the year 1980 and onwards. It is, thus,

clear that the aforementioned connections and plan were got sanctioned by him with the sole purpose of opposing the claim of plaintiff firm. He

was given right to use the aforementioned connections and plan were got sanctioned by him with the sole purpose of opposing the claim of plaintiff

firm. He was given right to use the premises in question on the ground floor as he was brother-in-law of Tarlochan Singh, partner of the firm.

However, he had been creating evidence with a malafide intention so as to set up his case by claiming himself to be the owner.

Learned Counsel for the appellants also argued that the learned lower Courts has misread the evidence, besides ignoring the weight of pre-

pondering circumstances and also their judgments were influenced by inconsequential matters. Therefore, the plaintiff firm was not entitled to the

relief sought for and instead the defendants-appellants de-served to be declared the owners of the property in question by adverse possession.

In Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, , it was held that a finding of fact reached by the Court, even if it is against the

weight of evidence, would remain in the realm of appreciation of evidence s, and would not make out any question of law, much less any

substantial question of law, which could enable the High Court in second appeal to upset such a finding.

In view of the above, no case is made out for any interference in the impugned judgments passed by the learned lower Courts. No such

substantial question of law, as framed by learned Counsel for the appellants, arises in the present second appeal, which is hereby dismissed.

No order as to costs.