SURINDER SINGH SIBIA Vs. INDERMOHAN SINGH

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity 'the Code') challenging concurrent findings of facts recorded by both the Courts below. Both the Courts have passed a decree in favour of the plaintiff-respondents by rejecting the counter claim made by the defendant-appellant holding that the plaintiff- respondents are entitled for permanent injunction restraining the defendant- appellant from interfering in their peaceful possession of the plot measuring 125'x275' - 146'x275'. The counter claim praying for decree of possession of the land specified in the site plan by demolishing the wall made by the defendant-appellant has been rejected.

(2.) THE trial Court recorded a firm finding on issue No. 1, 2, 3, 4, 5 and 6 holding that the defendant-appellant has failed to prove the ownership of the land in possession of the plaintiff-respondents by alleging that they have encroached upon the area more than what they had purchased in the year 1963. The trial Court also found that no document has been produced on record showing the total area, which is actually owned by the defendant-appellant. According to the trial Court, the best evidence with the defendant-appellant was to prove a demarcation report clearly showing how much area is encroached upon by the plaintiff-respondents and how much area actually belongs to him. No such demarcation was got effected. No evidence has been proved on record regarding ownership nor the defendant-appellant knows how much area the plaintiff-respondents have purchased vide sale deed dated 10.10.1963 from Siri Kaur.

(3.) THE learned Additional District Judge also rejected the argument of the defendant-appellant that once the plaintiff-respondents have taken the plea of adverse possession then the defendant-appellant should be deemed to be the owner on the ground that the property in dispute was owned by Maharaj Kumar Barjinder Singh from whom the plaintiff-respondents have taken the possession under an agreement to sell dated 10.1.1965. In these circumstances, the learned Additional District Judge held that the claim of possession could only be made by the owner and not by the defendant-appellant. Therefore, it was held that the plea of adverse possession would not result into admission on the part of the plaintiff-respondents that the defendant-appellant is the owner.