Punjab-Haryana High Court
Jita Etc vs Harsukh Etc on 19 February, 2025
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2025:PHHC:032925
RSA-2363
2363-1993 (O & M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
103 RSA-2363
2363-1993 (O & M)
Date of decision:
decision:19.02.2025
JITA & ORS. ...APPELLANTS
VS.
HAR SUKH &ANR.
& ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present: Mr. Manuj Chadha, Advocate &
Mr. Hari Pal, Advocate for the appellants.
Mr. M.L. Sarin, Sr. Advocate with
Ms. Hemani Sarin, Advocate &
Mr. Jagnoor Singh, Advocate for the respondents.
****
SUVIR SEHGAL,
SEHGAL J.
CM-4997
4997-C-2024
1. For the reasons given in the application, it is allowed.
2. Legal representatives of deceased
deceased-appellant No.2 are ordered to be
impleaded in place of the deceased, subject to all just exceptions.
3. Amended memo of parties is taken on record.
Main Case
4. Defendants are in second appeal before this Court assailing the
judgment and decree passed by the first apppellate court.
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RSA-2363
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5. Respondents/plaintiffs filed a suit for possession of land
measuring 10 kanals 12 marlas situated in the revenue estate of village
Andhop, Tehsil Hathin,
Hat in, District Faridabad. Their pleaded case is that the
land was under cultivation, which Smt. Gopali
Gopali, who inducted the defendants
as tenants in possession. Smt. Gopali died about three years ago without
leaving
ving any successor and her tenancy right
rights in respect to the property came
to an end.. Claiming
laiming that the defendants were in unauthorized possession of
the suit land, plaintiffs
plaintiff filed the suit.. Upon being served, defendants fi
filed
led a
joint written statement raising various preliminary objections. A stand was
taken that the defendants have become owners by way of adverse possession
as they have been in continuous and hoostile possession for more than 25
years. It was submitted that Smt. Gopali died in the year 1965 and the
defendants are her heirs being her husband
husband’s nephews and they are entitled
to succeed to the tenancy rights. Smt. Gopali left behind a daughter, who
executed a Will in favour of the defendants authorizing them to take
possession of the suit land.
land. By way of an amendment of the writtten
statement, which was
as allowed by the Trial Court vide order dated
22.01.1990, defendants took an additional plea that Smt. Gopali became the
22.01.1990,
absolute owner of the suit property during her life time as she acquiired
occupancy right under Sections 5 and 8 of the Punjab Tenancy Act
Act, 18
887
(for shortt “1887 Act”) read with Section 3 of the Punjab Occupancy
Tenants,, (Vesting
( of Proprietaryy Rights) Act, 1953 (for short “1953 Act”).
Act”) It
was stated that Smt.
mt. Gopali and her predecessor
predecessor-in-interest had been in
possession
ession of the suit land for more than 80 years and as per prevailing
custom, Smt. Gopali acquired the occupancy right
rights being a tenant. Plaintiffs
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filed a replication to the amended written statement. On the basis of the
pleadings of the parties,
par , Trial Court framed issues. After contest, suit was
dismissed by the Trial Court by judgment and decree dated 04.10.1991.
Plaintiffs succeeded in the first appeal, which was accepted by the learned
Additional District Judge, Faridabad vide judgment da
dated
ted 21.09.1993 and a
decree of possession of the suit land was passed in their favour. Defendaants
have filed the instant appeal in the above background.
6. Placing reliance upon Akhtar and others Vs. Isra
Israill and another
anothe
2012 (4) PLR 797,
797 the sole argument raised by counsel for the appellants is
that the civil court could not have passed
passed the decree for possession of the
suit land after
a it was found that the defenndants were tenants in possession of
the land.
7. Counsel for the respondennts has opposed the appeal and
a
supported
d the impugned judgment and ddecree passed by the first appelllate
court.
8. I have heard counsel for the parties and considered th
heir
submissio
on, besides examining the recordd with their able assistance.
9. Ann examination of the jamabandi
jamabandis, Ex.DA to Ex.DD shows that
the plaintiffs were the owners of the suiit land and its possession was with
Smt. Gopali as a tenant gair marusi through the defendants, who were the
sub-tenants
tenants under her. Appellants had set up a plea that they have become
owners by way of adverse possession, but since they have failed to establish
that their possession was open or hostile and to the knowledge of the
plaintiffs, the plea taken by them is rejected
rejected. Their possession over the suit
land has been held to be permissible. A
Appellants have not been ablee to
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establish that
t Smt. Gopali was recorded as an occupancy
cupancy tenant prior to the
commenccement of the 1953 Act and her rights do not get converted into
statutory ownership on the appointed da
date. The first appellate court found
that Smt. Gopali continued to be a tenant-
tenant-at-will and she nor her heirs co
ould
Will the tenancy rights in favour of the defendants. In Chuhar Singh
(Deceased) and others Vs. Jagat Singh and others 1986 PLJ 373,
373 a
coordinate
oordinate Bench of this Court has held that a tenant
tenant-at-will is not competent
to make any Will of his tenancy rights in favour of another person. Moreso,
when the tenant failed to establish himself to be the occupancy tenant or
obtained any declaration to this effect.
10. First appellate court has returrned a finding that the suit is within
the prescribed period of limitation. It is evident from the death certificate,
ertificate,
Ex.DJ, that Smt. Gopali died on 16.09.1964 and plaintiffs
laintiffs filed a suit for
possession on 20.08.1986, that is, within a period of 12 years from the date
of her death.
death Interpretting
ing Article 65 of the Limitation Act, 1963, in
Sopanrao
o and another Vs. Syed Mehmoood and others 2019 (4) PLR 614,
6
Supreme Court held that a suit for possession of immovable property or any
interest therein based on title has to be filed within a period of 12 years from
the date the possession of the land became adverse to the plaintiffs. Suiit is
therefore within limitation.
11. This Court will now consider the argument raised by counsel
for the appellants, who has urged that the Court cannot pass a decree for
possession The
possession. he maintainability of the suit for possession has been contested
by the defendants and a specific issue wass framed, but the defendants did not
lead any evidence nor addressed any argument
arguments on this issue before the Trial
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Court. Th
his issue was decided against the
them by the Trial Court and they
never filed any appeal or cross-objection
cro objection challenging the finding
finding.. They are,
therefore,, estopped from raising this plea in second appeal. The judgment
relied upon by the counsel for the appellants will not come to his aid. This
Court does not find any infirmity or illegality in the judgments passed by the
courts below, which are affirmed.
12. Appeal being devoid of merit
merit, is dismissed,, though with no
order as to costs.
13. Pending application(s), if anyy, is/are disposed off.
19.02.2025
.2025 (SUVIR SEHGAL)
sheetal JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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