Paras Ram And Another v. Zile Singh (Deceased) Through Lrs

Date of decision : 24.07.2025 Paras Ram & anr.

...... Appellants versus Zile Singh (deceased) thr. His LRs.

..... Respondent CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN *** Present :- Mr. Satbir Rathore, Advocate and Mr. Vinod Pundir, Advocate for the appellants.

Appellant Paras Ram-present in person.

Mr. Kulvir Narwal, Advocate for the LRs of the respondent.

*** PANKAJ JAIN, J. (ORAL) Defendants are in second appeal. For convenience, parties hereinafter are referred to by their original position before the Court of the First Instance i.e. appellants as defendants and respondents as plaintiffs. LRs of plaintiff filed suit for mandatory injunction and for recovery of Rs.5,000/- as damages for use and occupation of the house in question from 15th August, 2008 to 15th September, 2008. Plaintiff Zile Singh pleaded that he is owner in possession of the house in question having purchased the same vide sale deed dated 11.03.1982. Defendant No.1 Paras Ram is his brother-in-law and defendant No.2 is wife of defendant No.1. On their request possession of the house was given to defendants to perform marriage of their daughter. Despite repeated requests defendants having failed to hand over the vacant

possession of the house, the plaintiff is thus entitled for decree of mandatory injunction. Suit was contested by the defendants. Defendants claimed that in fact the suit is result of impersonation as Zile Singh has not signed the vakalatnama or the plaint. On merits, defendants claimed to be owner in possession of house in question since 03.01.1993 and claimed to have become owner by way of adverse possession. Defendants claimed to be residing in the house since 03.01.1993. Defendants further claimed that a commercial plot was transferred by defendant No.1 in favour of plaintiffZile Singh vide sale deed dated 07.12.1992 bearing document No.5369 without any consideration.

On the strength of the pleadings following issues were framed :-

1. Whether the plaintiff is entitled for vacant possession of house in question? OPP

2. Whether defendants have become owners in possession of house in question by way of adverse possession? OPD

3. Whether the plaintiff bank is entitled for recovery of damages as prayed for? OPP

4. Whether the suit of the plaintiff is not maintainable in the present form? 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 filed 6. the present suit? OPD"

While deciding issues No.1 to 3, Court of the First Instance found that defendant No.1 Paras Ram himself admitted in his crossexamination that Zile Singh is owner of the house in question and further

that he is residing in the house in question with the consent of Zile Singh. Relying upon further admission made by defendant No.1 that the rate of rent of the similar property in the vicinity is Rs.3,000/- per month, plaintiffs were held entitled to mesne profits @Rs.3,000/- per month. Deciding issues No.4 to 6 the Court of the First Instance referred to testimony of PW-3 Samunder Singh to hold that even a suggestion was not put to him regarding the original plaint not bearing thumb impression of Zile Singh. The Trial Court accordingly decreed the suit filed by the plaintiff. The counter claim filed by the defendants whereby they claimed declaration to the effect that they are owners in possession of the house was ordered to be dismissed. The findings stand affirmed by the Lower Appellate Court.

Counsel for the appellants has assailed the findings recorded by the Courts below. It has been proved on record that a commercial plot was transferred by the defendants in favour of the plaintiff vide sale deed dated 07.12.1992. The said fact has been totally ignored by the Courts below. It has been submitted that once defendants proved sale deed in the month of December, 1992 in favour of the plaintiff and the possession of the defendants over the house in question stands established since 1993, the only inference that can be drawn is that the properties were exchanged. The time gap between sale deed and the handing over of the possession is merely of 25 days. He further submits that expert witness was examined by the defendants to prove that the plaint does not bear thumb impressions of Zile Singh yet the same has been ignored.

Appellant-Paras Ram has also appeared in person. He submits that after filing of the suit he went to meet Zile Singh who told him that the plaint does not bear his signatures.

Counsel for the appellants relies upon Rule 31 CPC to content that the judgment passed by the Lower Appellate Court is in teeth of the bare provision. The provision mandates the Appellate Court being last Court of fact to cull out the points of determination and to record findings on each and every issue.

Reliance is being placed upon Malluru Mallappa (D) Thr. LRs Vs. Kuruvathappa & ors. 2020(2) RCR (Civil) 94, Manjula & ors. Vs. Shyamsundar & ors., 2021(1) RCR (Civil) 866, B.V.Nagesh & anr. Vs. H.V.Sreenivasa Murthy, 2010(13) SCC 530, H.Siddiqui (D) by LRs. Vs. A.Ramalingam, 2011(4) SCC 240 and judgment passed by this Court in Baldev Singh Vs. Malkiat Singh, 2001(4) RCR (Civil) 332. Per contra counsel for the respondent submits that pure findings of facts have been recorded by the Courts below. Defendant No.1 himself appeared in the witness box and admitted ownership of Zile Singh over the suit property and also admitted that defendants are in possession of the suit property with the permission of Zile Singh.

He thus submits that the possession of the appellant-defendants over the suit property belonging to Zile Singh being permissive in nature, the Courts below have rightly held the respondents entitled to decree of mandatory injunction. Mr.Kulvir Narwal, Advocate refers to findings recoded by the Lower Appellate Court and submits that the issues No.4 to 6 were not pressed by the appellants before the Lower Court and thus no finding on it was recorded whereas on issues No.1 to 3 categorical findings have been recorded after discussing the evidence on record. Mr.

were required to prefer two separate appeals, one against decree of the suit and the other against dismissal of counter claim. He having filed only one appeal, the findings recorded in the counter claim shall operate as resjudicata. Reliance is being placed upon ratio of law laid down by Division Bench in Shri Ramesh Chand Vs. Om Raj & ors., in Regular Second Appeal No.57 of 2017 decided by Himachal Pradesh High Court on 17.05.2022. I have heard learned counsel for the petitioner and have gone through records of the case.

Contention raised by Mr.

Narwal questioning the maintainability of single appeal against judgment and decree deciding plaint and counter claim sans merit and is rejected. Whole of the law related to filing of separate appeals has been crystallized by Supreme Court in the case of Sri Gangai Vinayagar Temple V. Meenakshi Ammal (2015) 3 SCC 624. The Supreme Court after discussing the whole series of binding precedents starting from Full Bench of Lahore High Court in the case of Mussammat Lachhmi Vs. Mussammat Bhulli, 1927 SCC OnLine Lah 256 observed as under :-

In the present case the counter claim as well as the suit were decided by a common judgment and a common decree sheet was drawn thus defendants were not required to file separate appeals in the absence of any decree that remained unchallenged. 11.

Coming to merits, from the written statement, it is discernible that the defendants-appellants claimed to be owners in possession of the suit property on the strength of adverse possession. Defendant-Paras Ram while appearing as DW-1 admitted that he entered into possession of the suit property with the permission of Zile Singh. Trite it is that mere long possession does not graduate into ownership being adverse possession until and unless the party claiming to be in adverse passion is able to show the date on which his possession became hostile in light of Article 65 of the Limitation Act, 1963. Once Paras Ram admitted to be in permissive possession and there is no date on which the possession became hostile no

fault can be found with the findings recoded by Courts below rejecting the plea rejecting the plea of adverse possession raised by the defendants. Though the plea of oral exchange has not been raised as such in the written statement, however, defendants in the written statement specifically pleaded that they transferred commercial property in favour of Zile Singh on 07.12.1992 and the sale was without consideration. The said plea is against the recitals and contents of document. Sale deed in question is a registered document. In order to rebut the presumption attached to recitals and statutory endorsement of the same, the appellants-defendants were required to lead positive evidence.

None of the attesting witnesses was examined to prove that the sale deed was executed in favour of the plaintiffZile Singh by the defendants without any consideration in lieu of the house in question. Once the parties appeared before Sub-Registrar for registration of sale deed, what stopped them from executing exchange deed if the properties were being exchanged. This remained unanswered. Pure findings of fact have been recorded by the Courts below which is based upon proper appreciation of the evidence. Finding no merits in the present appeal, the same is ordered to be dismissed. Pending miscellaneous application, if any, also stands disposed off.

( PANKAJ JAIN ) 24.07.2025 JUDGE Pooja Sharma-I Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No