In this second appeal concerning a suit for possession of open land, the High Court held that no substantial question of law arose. The lower court found the plaintiff was not the owner of the vacant plot, and mere opening of windows was insufficient to prove possession.
The second appeal was dismissed with no costs awarded.
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.
R.S.A.No.663 of 2005
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A.No.663 of 2005
Date of Decision : 03.07.2009
Jaswant Singh
...Appellant
Versus
Basti Ram
...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. H.P.Verma, Advocate, for the appellant.
Mr. G.S.Gandhi, Advocate, for the respondent.
HEMANT GUPTA, J. (ORAL)
The plaintiff is in second appeal aggrieved against the judgment and decree passed by the First Appellate Court whereby the appeal filed by the defendant, the suit was dismissed.
The plaintiff claim to be the owner and in possession of the suit property comprising of Aahata No.31, House No.28 shown as red colour and marked as ABCDE in the site plan. It has been found by the learned First Appellate Court that the said site is the open land and that in case of open land, the possession would follow title. It has been found that the plaintiff is admittedly not the owner of Aahata No.31 plot No.28 of which ABCDE is the part. It was found that none of the items lying on the said area are belonging to the plaintiff.
The findings of fact recorded by the learned First Appellate Court are sought to be disputed by reappreciation of evidence. The findings recorded are based upon admission of the plaintiff that he is not
R.S.A.No.663 of 2005
2
the owner of the suit property. Therefore, it was held that in respect of vacant land, he cannot claim possession.
The argument of learned counsel for the appellant is that certain agricultural implements of the plaintiff are lying on portion ABCDE and opening of windows etc. over this plot shows the possession of the plaintiff over the said plot. The mere opening of windows etc. over the vacant plot ABCDE is not sufficient to hold the possession of the plaintiff over the said property, in the absence of any construction over the plot in dispute, if the windows open over the said plot, it would not be sufficient to return a finding that the plot ABCDE is deemed to be in possession of the plaintiff.
Findings of fact recorded alone are sought to be disputed in the present second appeal. Such findings are not shown to be returned either on misreading of evidence or by ignoring any material evidence.
In view of the above, I do not find that any substantial question of law arises for consideration by this Court.
Dismissed.
(HEMANT GUPTA) JUDGE
03.07.2009 Vimal
3 issues framed by the court
Whether the finding of the First Appellate Court that the plaintiff does not own the suit property can be disturbed on reappreciation of evidence in a second appeal.
Whether the opening of windows from an adjacent property over a vacant plot is sufficient to establish possession of that vacant plot.
Whether any substantial question of law arises to warrant setting aside the dismissal of the second appeal.
Jaswant Singh
Basti Ram
Hemant Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
