In a second appeal regarding a suit for possession of agricultural land, the court dismissed the appeal in limine, holding the suit barred by limitation and noting no substantial question of law arose for determination.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No. 3150 of 2007 Date of Decision : August 11, 2009
Renuka
....Appellant Versus Aditya
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Sandeep Punchhi, Advocate
T.P.S. MANN, J.
Suit filed by the appellant for possession under Sections 5 and 6 of the Specific Relief Act directing the respondent to deliver the possession of agricultural land measuring 5 Kanals 10 Marlas situated in village Azimgarh, Tehsil Abohar was dismissed by the learned Additional Civil Judge (Senior Division), Abohar on May 13, 2005, which judgment and decree was upheld by learned District Judge, Ferozepur on May 24, 2007 in the first appeal filed by the appellant. Aggrieved of the same, the appellant is now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure.
According to the plaintiff-appellant, she was owner of the suit land besides two rooms and one Varandah already constructed on
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the side of water course of the suit land. Previously the land was owned by her aunt and it was being looked after by her father. The defendantrespondent was cousin of the plaintiff. Out of jealousy that the aunt, had gifted her property to the plaintiff, the defendant forcibly occupied the land on 2.11.2000. This was done before the inspection, which was carried out by the Naib Tehsildar. Though the defendant was declared to be in possession but as he could not establish as to under what document of law he was in possession, he was described as the one in forcible possession. The defendant had no right to retain the possession and bound to deliver the same to the plaintiff. Hence, the suit.
The suit was opposed by the defendant by filing his written statement stating therein that he was in possession of the suit land since the year 1990-92 and since then none else had any concern with the same. He had filed an application for the correction of Khasra Girdawari, which application was accepted and the Khasra Girdawari from pre-sawani 1997 onwards corrected showing him to be in possession of the suit property. Prior to 1997, the CRO could not correct the entries on account of the preparation of the Jamabandi. The plaintiff did not challenge the order passed by Assistant Collector IInd Grade on 3.11.2000 vide which the Khasra Girdawari entries were ordered to be corrected. As that order had become final, the plaintiff was debarred from filing the suit.
The dispute between the parties centered around issue No.1,
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R.S.A. No. 3150 of 2007
framed by the learned trial Court, which reads as under :-
“Whether plaintiff is entitled to the relief of possession of the suit land alongwith the house built therein? OPP.”
After hearing learned counsel for the parties and going through the evidence on the file, learned trial Court held that the plaintiff had not been able to establish her case that she was entitled to the possession of the suit land. Consequently, the suit was dismissed and the first appeal filed by the plaintiff, thereafter, also met the same fate.
Vide order Ex.P.2 passed by the Naib Tehsildar, the plaintiff was recorded as Gair Marusi Najaiz Kabaz in Khasra Girdawari . In Jambandi Ex.P.3, mutation No. 18332 had been recorded regarding the execution of gift deed Ex.P.5 by Smt. Shinder Devi in respect of the land measuring 23 Kanals 10 Marlas in favour of the plaintiff-appellant. As against this, vide order dated 26.6.2001 Exs.D4 and D5, learned Collector, Abohar disposed of the appeal filed by Smt. Shinder Devi against the plaintiff-appellant by observing that Smt. Shinder Devi had not issued any direction for the execution of gift deed in respect of the suit land nor she consented to it and Vidya Sagar Ahuja was not competent to execute gift deed on behalf of Smt. Shinder Devi. There was also no clause in the power of attorney executed by Smt. Shinder Devi in favour of Vidya Sagar Ahuja on the basis of which
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the latter could execute the gift deed of the property belonging to Smt. Shinder Devi in favour of the plaintiff-appellant. Consequently, the appeal against mutation No. 18332 was allowed.
It is not in dispute that the defendant-respondent is in possession of the suit property since the year 1997. Any suit for recovering the possession could be filed within six months of dispossession. However, the suit was filed on 14.2.2001. As such the suit for possession under Sections 5 and 6 of the Act was not maintainable, being barred by limitation.
The concurrent findings of facts, arrived at by the learned Courts below in non-suiting the plaintiff-appellant, cannot be upset in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The findings of the learned Courts below do not suffer from any perversity, illegality or infirmity. None of the substantial questions of law as framed by the plaintiff-appellant, arises for determination.
Resultantly, there is no merit in the appeal and the same is, accordingly, dismissed in limine.
(T.P.S.MANN) JUDGE
August 11, 2009 satish
2 issues framed by the court
Whether the suit for possession is barred by limitation given the date of dispossession and filing.
Whether the findings of the courts below on the substantial question of law warrant interference in a second appeal.
2 provisions across 2 enactments
Renuka
Aditya
T.P.S. MANN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
