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JAGAT SINGH & Anr v. SURJIT SINGH - RSA-2377-2005  RD-P&H 35 (6 January 2006)
R.S.A. No.2377 of 2005
Date of decision:12.8.2005
Jagat Singh and another
Present: Shri R.C. Dogra, Senior Advocate with Shri S.K. Bawa, Advocate for the appellants.
Shri G.S. Sandhawalia, Advocate for the caveator- respondent.
S.S. Saron, J.
This regular second appeal has been filed by the defendants- appellants against the judgment and decree dated 3.3.2005 passed by the learned Additional District Judge, Jalandhar whereby the appeal of the plaintiff-respondent against the judgment and decree dated 28.2.2002 has RSA No.2377/2005
The plaintiff-respondent Surjit Singh filed a suit for possession of property bearing No.235/12, Preet Nagar, Ladowali Road, Jalandhar City as detailed in the head note of the plaint on the allegations that the suit property was previously owned by his mother Smt. Chinti, who gifted the same to him vide registered gift deed dated 16.5.1941. In pursuance of the said gift deed, it is stated, that the plaintiff became owner of the suit property. He had been working at Ambala and in order to avoid the house being forcibly occupied, he had given the premises to Darshan Singh, his maternal uncle's son as a licensee. The said Darshan Singh lived in the house till the end of July 1991 and on the asking of the plaintiff, he left the house and thereafter house was lying locked. The defendants forcibly took possession of the house in the absence of the plaintiff and on coming to know this fact, the plaintiff came to Jalandhar in the second week of August and asked the defendants as to how they were in occupation. The plaintiff who was going to report the matter to the Police, however, Jagat Singh, defendant No.1 promised to vacate the house and hand over its possession to the plaintiff by 31.12.1991 but he did not do so and postponed the handing over the possession on one pretext or the other. It is contended that the defendants have no right to the suit property and they are trespassers thereof.
The case set-up by the defendants, who are husband and wife respectively is that defendant No.1 Jagat Singh inherited the property from his father Amar Singh who executed a registered Will dated 12.4.1978 with regard to the property in dispute in his favour and in favour of his brother Hardeep Singh. However, another brother of defendant No.1, namely, Surjit Singh and his wife Paramjit Kaur lived in the house and it is on that account that the name of Darshan Singh son of Mansa Singh, who is the maternal uncle's son of Surjit Singh, (plaintiff) might have been mentioned in the house tax record of the Municipal Corporation. It was submitted that the defendant and Manjit Singh, an adopted son of Jagat Singh are owners in possession of the house.
Hardeep Singh, the other brother of defendant No.1 had already died in
1982. It was stated that Smt. Chinti the mother of the plaintiff was married to one Amar Singh, who was not the son of Jawala Singh, the grand-father of the defendant No.1. She was in fact married to some other Amar Singh who died before 1956. After the death of her husband, Smt.
Chinti deserted the family of Amar Singh and she went away with some one else and died about 25 years ago. The plaintiff, who is son of Smt.
Chinti from said Amar Singh was brought up by his maternal uncles at Village Kot so question of Smt. Chinti having inherited the property or having been owner of it never arose. It is stated that even if the gift deed RSA No.2377/2005
is proved it is a forged document and Smt. Chinti had no interest in the property in dispute and she never came in possession of the suit property.
It is stated that the suit property is owned and possessed by the heirs of Amar Singh son of Jawala Singh and now by defendant No.1 and his brother Hardeep Singh. Surjit Singh, the other brother of defendant No.1 and Paramjit Kaur, wife of Surjit Singh lived in India till 1986 and thereafter they shifted to U.K. It is stated that there is another person, namely, Mansa Singh who had a son, namely, Darshan Singh and a daughter Paramjit Kaur. Said Paramjit Kaur is married to Surjit Singh, brother of defendant No.1. Darshan Singh lived in the house in question with the permission of his uncle Amar Singh. The possession has always remained with the family of the defendants. On the pleadings of the parties, the issues were framed by the trial Court on 8.4.1993 and were re- framed on 27.11.1997, which are as follows:-
1. " Whether the plaintiff is entitled to the possession of suit property fully detailed in the head note of the plaint? OPP.
2. Whether Smt. Chinti gifted the suit property to the plaintiff vide a registered gift deed dated 16.5.1941? OPP.
3. Whether the suit is within time? OPP.
4. Whether Amar son of Jawala Singh executed a registered Will dated 22.4.1978 in respect of the suit property in RSA No.2377/2005
favour of Mohinder Kaur and Hardeep Singh? OPD.
5. Whether the plaintiff has no cause of action to file the present suit? OPD.
6. Whether the plaintiff has no locus standi to file the present suit? OPD.
7. Whether the suit is bad for non-joinder of necessary parties? OPD.
8. Whether the gift deed is a forged and fabricated document? OPD.
9. Relief." The learned trial Court after considering the evidence and material on record dismissed the suit of the plaintiff. However, the learned lower appellate Court vide its impugned judgment and decree dated 3.3.2005 accepted the appeal of the plaintiff and decreed the suit which, as already noticed, is assailed by the defendants-appellants.
Shri R.C. Dogra, learned Senior Advocate appearing with Shri S.K. Bawa, Advocate submits that the plaintiff has no concern with the property in dispute and he taking advantage of the similarity of his name and his father's name with the brother of defendant-appellant No.1 has tried to grab the property by instituting the suit out of which this appeal arises. It is stated that Jawala Singh son of Kalu Singh was the RSA No.2377/2005
grand-father of defendant-appellant No.1. Father of defendant-appellant No.1 executed a Will in favour of defendant No.1 and the relation of defendant No.1 also lived in this house including one of the uncles and his son, i.e., Mansa Singh and his son Darshan Singh, who died issueless and all their assets came to the father of defendant-appellant No.1. It is stated that Smt. Chinti has no connection with the house and in any case she was married to one Amar Singh, who was not the father of the appellant and Amar Singh, the husband of Smt. Chinti having died, she went away with somebody else and has never been heard of and is presumed to have died.
It is contended that the plaintiff-respondent forged the document i.e. the registered gift deed to claim the ownership of the property having similar parentage to that of defendant-appellant No.1. It is also contended that the learned lower appellate Court has committed a grave illegality and irregularity in identifying the property to be the disputed property without any cogent and convincing evidence. Besides, it has erred in setting aside the well merited and considered judgment and decree of the trial Court.
In response, Shri G.S. Sandhawalia, Advocate learned counsel appearing for the caveator-respondent has submitted that the learned trial Court though had upheld the gift deed dated 16.5.1941 executed by Smt. Chinti in favour of the plaintiff, however, had erred in dismissing the suit of the plaintiff on the plea of adverse possession of the RSA No.2377/2005
defendants-appellants. It is contended that this error had rightly been corrected by the learned lower appellate Court. Besides, it is contended that the maternal uncle's daughter of plaintiff, namely, Paramjit Kaur is married to Surjit Singh, the brother of defendant No.1 and said Paramjit Kaur is the sister of Darshan Singh. The said Darshan Singh was the licensee in the premises and he vacated the house in the end of July 1991 and thus the defendant No.1 and his wife, defendant No.2 took possession of the house. Defendant No.1 is the brother of Surjit Singh, whose wife Paramjit Kaur is the sister of Darshan Singh. Therefore, it is contended that the defendants being in unlawful and forcible possession failed to establish their ownership by adverse possession and they have rightly been ordered to vacate the house.
After giving my thoughtful consideration to the contentions of the learned counsel appearing for the parties, it is appropriate to note that the learned trial Court decided issue No.2 with regard to the gift deed dated 16.5.1941 executed by Smt. Chinti in favour of plaintiff-respondent.
The defendants-appellants did not assail the said finding on issue No.2 either by way of appeal or cross-objections before the learned lower appellate Court. Accordingly, the learned lower appellate Court considered the case of the plaintiff-respondent on the premise that the gift deed had been accepted by the defendants-appellants. The finding of the RSA No.2377/2005
learned trial Court with regard to the defendants-appellants being in adverse possession was reversed by the learned lower appellate Court. It was held as a matter of fact that the defendants had claimed possession of the suit property from 1978. However, the documents placed on record go to show that they were in possession from 1992 onwards and, therefore, it was held that they had failed to prove/establish the adverse possession in respect of the suit property. It may also be noticed that the suit for possession was filed on 1.4.1992 when the defendants had, as per the allegations of the plaintiff, failed to hand over possession by the end of December 1991. Even the plea of the defendants that Amar Singh, the father of Jagat Singh, defendant No.1 had executed a Will in his favour was not accepted. The case set-up by the defendants was that Amar Singh son of Jawala Singh, father of defendant No.1 had executed a will dated 12.4.1978 Ex.DW-3/2. However, the learned Court below has found that said defendant had failed to show any connection of said Amar Singh with regard to the property in question. Rather, Jagat Singh, defendant No.1 appearing as DW-5 admitted in his cross-examination the ownership of Smt. Chinti, mother of the plaintiff. He also admitted that neither he himself nor his father Amar Singh had any document of title regarding the property in question. Besides, apart from the Will dated 12.4.1978 Ex.DW-3/2, there was no document to establish that Amar Singh, father of RSA No.2377/2005
defendant No.1 had any connection with the property in question. In the absence of title deed in favour of Amar Singh, it was held that Jagat Singh, defendant No.1 cannot become owner of the property on the basis of the aforesaid Will. The question that remained for consideration was on the basis of adverse possession, which as already noticed, was negatived. The gift deed executed by Smt. Chinti in favour of the plaintiff was accepted to be duly proved and established on the basis of other corroborative evidence. The findings of the learned trial Court regarding the execution of the gift deed in favour of the plaintiff were not challenged by the defendants-appellants before the learned lower appellate Court. The findings recorded by the learned lower appellate Court are factual in nature and no question of law arises for consideration in this regular second appeal.
Learned senior counsel for the appellants at this stage, however, submits that the appellants may be granted some time to vacate the premises in question. Learned counsel for the plaintiff-respondent, on instructions from respondent Surjit Singh, submits that he would not execute the decree for a period of three months from today provided that the defendants-appellants give an undertaking before the executing Court where the execution proceedings are pending that they will vacate the disputed premises within a period of three months from today. Learned RSA No.2377/2005
senior counsel for the appellants submits that he shall do the needful.
Consequently, there is no merit in this appeal and the same is accordingly dismissed. However, the execution of the decree shall remain in abeyance for a period of three months and the appellants shall file the necessary undertaking.
August 12, 2005. (S.S. Saron)
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