Shri Girdhari Lal vs Bhagwan Dass and Smt. Nirmla Devi

Surinder Singh, J.—Heard on the point of admission. Records of the Courts below have been received and gone through.

Respondent/Plaintiffs'' suit was for possession with respect to the suit land filed against the appellant herein on the premise that the suit land was owned by them. They were forcibly dispossessed in the month of March, 2004. Later in the year 2005, they got the land demarcated and the appellant, was found in possession to the extent of 0-06-32 Hectares. The appellant in the written statement took up various preliminary objections and particularly alleged adverse possession since the year 1971-72 and further averred that he had planted fruit trees and the land was developed by him.

In replication, the aforesaid averments were denied, as such on the pleadings of the parties various issues were framed and the additional issue with respect to the adverse possession was framed at a later stage. The parties led their evidence. Plaintiff Bhagwan Dass examined himself as PW3. According to him, the aforesaid land was allotted to his father as "War Jagir" as his brother was a martyr who died in 1972 war. Its possession was delivered to his father and it was being cultivated by him till his death and after his death, it was inherited by respondent No.1. The appellant has no concern with it and it is alleged that the suit land was encroached upon by the appellant.

Contra, DW1 Girdhari Lal asserted his own possession for the last about 35 years, since the time of his ancestors. He alleged that the plaintiffs had also tried to take the possession of the suit land from him to which he resisted. However, in cross-examination he admitted having granted the suit land as "War Jagir" to the plaintiffs'' father as aforesaid. The possession whereof was also delivered to him. He also admits about the demarcation having been conducted by the revenue authorities, but his specific case is that during the settlement he objected to the handing over the possession of this land to the plaintiffs. He further stated that there are fruit trees, the age of which is 25 years without specifying the year and by whom the fruit trees were planted, more specifically when the suit land is stated to have been in his possession since 1971-72. DW2 Milap Chand also stated similarly with respect to the possession and in cross-examination he stated that he did not know as to who had planted the fruit trees. Even he was unable to say that in the year 2004 the defendant had forcibly dispossessed the plaintiffs.

On the strength of the aforesaid evidence, the learned trial Court did not find that the issue of adverse possession was proved, as such the suit was decreed. In appeal before the learned lower appellate Court the said findings were reiterated and the appeal was dismissed, hence the present appeal. Shri Mehta, learned Counsel for the appellant vehemently argued that the substantial question of law is involved in the appeal, but I find that there are concurrent finding of facts and no question of law much less substantial question of law arises for determination. The evidence on record led by the defendant lacks legal ingredients of adverse possession i.e. nec vi, nec clam, nec precario. Therefore, the appeal is dismissed at the admission stage itself, so also the pending application, if any.