Mahender Singh Yadav & Others vs Lachhmi Devi & Others on 28 October, 2009

[Cites 1, Cited by 3]

Punjab-Haryana High Court

Mahender Singh Yadav & Others vs Lachhmi Devi & Others on 28 October, 2009

Bench: Ajay Tewari

CM No.2151-C of 2006
RSA No.884 of 2006                                          -1-


   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                 CHANDIGARH

                                    CM No.2151-C of 2006
                                    RSA No.884 of 2006
                                    Decided on : 28.10.2009


Mahender Singh Yadav & others                          ... Appellants

                            versus

Lachhmi Devi & others                                  ...Respondents


CORAM : HON'BLE MR. JUSTICE AJAY TEWARI

Present : Mr. Ashish Aggarwal, Advocate
          for the appellants.

           Mr. C.B.Goel, Advocate
           with Mr. Himanshu Aggarwal, Advocate
           for the respondents.

                                   ****

1.Whether Reporters of local newspapers may be allowed to see
  the judgment?
2.To be referred to the reporters or not?
3.Whether the judgment should be reported in the Digest?


AJAY TEWARI, J. (ORAL)

This appeal has been filed against the order of the ld. Lower Appellate Court reversing that of the Trial Court and thereby decreeing the suit of the respondent-plaintiff for possession over land shown as IJDE in the site plan Exhibit P2. The primary reason why the Ld. Appellate Court decreed the suit was the categoric stand taken in the counter claim in which the appellant had unequivocally stated that he had constructed the disputed wall in Khasra Nos.15/2, 11/1 & 11/2 in the year 1980 CM No.2151-C of 2006 RSA No.884 of 2006 -2- with the knowledge of the respondent-plaintiff and that since then his possession was continuously hostile and adverse possession. On the basis of this averment the ld. Appellate Court held that the title of the respondent could not now be disputed. Lower Appellate Court further found that the appellant failed to prove adverse possession holding that even though there may be some default on the part of the respondent yet the element of hostility required to bring the case within the ambit of the adverse possession was not existing. The following questions have been proposed:

i) Whether adverse inference is liable to be raised against the plaintiff due to her non-appearance as a witness in view of the law laid down by the Hon'ble Supreme Court in Vidhyadhar vs. Mankikrao, AIR 1999 SC 1441 especially when the attorney of the plaintiff as PW2 has been unable to answer material questions relating to the suit land?

ii)Whether the alleged encroachment has been proved on the record by merely an ex parte demarcation report obtained by the plaintiff during the pendency of the suit without the permission of the Trial Court and especially when the specific application for appointment of local commissioner filed by the plaintiff before the Trial Court was pending and not pressed by her?

CM No.2151-C of 2006 RSA No.884 of 2006 -3-

iii)Whether the lower appellate court has erred in not deciding the application for appointment of local commissioner filed by the plaintiff-respondent No.1 which would have gone a long way to prove any encroachment over the suit land?

iv)Whether in any case the appellants have become owners of the suit land by way of adverse possession as admittedly the boundary wall of the Rice Mill stands constructed on the suit land since the year 1980 and the present suit has been filed in the year 1998?

v)Whether the material evidence on the record has been ignored by the lower appellate court and no finding on the merits of the controversy pertaining to encroachment has been returned by it?

vi)Whether grave and manifest injustice has been caused to the appellants in the matter?

Questions No.(i) to (iii) & (v) are pure questions of fact. Learned counsel for the appellant has not been able to persuade me that the findings recorded are either based on no evidence or on such mis-reading of evidence which renders them so perverse as to be liable for interference under Section 100 CPC. With regard to question No.(iv) learned counsel for the appellant has not been able to convince me regarding the absence of necessary element of hostility which was pointed out CM No.2151-C of 2006 RSA No.884 of 2006 -4- by the ld. Lower Appellate Court.

Consequently, this appeal and application for stay are dismissed.

October 28, 2009                            (AJAY TEWARI)
sonia                                           JUDGE

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