Naveen Kumar vs Shashi Patni

L.N. Mittal, J.

C.M. No. 12815-C of 2010 :

Allowed as prayed for.

Main Appeal:

Defendant Naveen Kumar, who was successful in the trial court, but has been unsuccessful in the lower appellate court, is in second appeal.

Suit was filed by Respondent-Plaintiff Shashi Patni alleging that his father Shiv Charan Patni had purchased 03 acres 04 kanals land vide sale certificate dated 12.07.1956 and was delivered possession thereof. After the death of his father, the Plaintiff and his brother Surinder, as his legal heirs, inherited the aforesaid property. However, Defendant has illegally taken possession of suit property, which is part of khasra No. 3621, out of property purchased by Plaintiff''s father. The Plaintiff, therefore, sought possession of the suit property.

The Defendant inter alia pleaded that Punjab Wakf Board is owner of the suit property and Wakf Board has allotted the same to the Defendant vide allotment letter dated 26.06.1990 and since then, Defendant is in continuous possession thereof. The Defendant also claimed to have become owner by adverse possession. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Panipat, vide judgment and decree dated 28.11.2005, dismissed the Plaintiff''s suit. However, first appeal preferred by Plaintiff has been allowed by learned Additional District Judge (Fast Track Court), Panipat, vide judgment and decree dated 22.07.2010 and thereby, Plaintiff''s suit has been decreed. Feeling aggrieved, Defendant has preferred the instant second appeal.

I have heard learned Counsel for the Appellant and perused the case file.

Learned Counsel for the Appellant vehemently contended that the Plaintiff proved alleged sale certificate dated 12.07.1956 in secondary evidence by way of additional evidence in first appeal, but in fact, there is no record of the said sale certificate in the office of Tehsildar (Sales). The contention does not help the Appellant. In fact, it was also the case of the Plaintiff-Respondent that record of plot No. 16 comprising of 03 acres 04 kanals land including the suit land, which was sold by custodian to Plaintiff''s father vide sale certificate dated 12.07.1956, was not available in the office of Tehsildar (Sales) and precisely for this reason, permission was granted to the Plaintiff-Respondent by the lower appellate court to prove the said sale certificate by secondary evidence and accordingly, the Plaintiff proved the same. It is proved from the sale certificate that Plaintiff and his brother are owners of the suit land having inherited it from their father, who had purchased the same along with other land. Consequently, the Plaintiff''s suit has been rightly decreed by the lower appellate court.

Learned Counsel for the Appellant also contended that the Defendant is in possession of the suit property since the year 1990 and therefore, he had become its owner by adverse possession. The contention is completely misconceived and devoid of merit. The possession of the Defendant has been disputed since its inception. Initially there were proceedings u/s 145 of the Code of Criminal Procedure and thereafter, the instant suit was filed by the Plaintiff-Respondent. Consequently, possession of the Defendant cannot be said to have been adverse and unchallenged for requisite period of 12 years. In addition to it, the Defendant claimed his possession as lessee under the Wakf Board and for this added reason as well, the question of acquiring ownership by Defendant by adverse possession did not arise.

The matter does not rest here. Even allotment of the suit land to Defendant-Appellant by Punjab Wakf Board stands cancelled vide cancellation order dated 17.02.1995 Ex.DW-4/C and thereafter, the Defendant-Appellant is left with no right, title or interest in the suit land. There is also no cogent evidence to depict that Punjab Wakf Board is owner of the suit land. In jamabandis produced by the Defendant, Imambara has been mentioned to be owner of the suit land, but even these jamabandis, which are not documents of title, do not depict that Punjab Wakf Board is owner of the suit land. On the contrary, in earlier jamabandi for 1950-51, entry was also made on 17.07.1956 regarding sale of 03 acres 04 kanals land including the suit land to Plaintiff''s father vide sale certificate dated 12.07.1956. Consequently, it cannot be said that Punjab Wakf Board is owner of the suit land. However, any observation made in this judgment on this aspect will have no bearing against the Punjab Wakf Board, which is not party to the lis.

Lower appellate court has recorded very elaborate reasons to decree the suit of the Plaintiff-Respondent. The finding of the lower appellate court is fully justified by the evidence on record and is supported by elaborate reasons. The said finding is not shown to be perverse or illegal in any manner. On the contrary, even as per evidence of the Defendant-Appellant himself, he is left with no right, title or interest in the suit land. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine.