L.N.Mittal, J.

1 This is second appeal by legal representatives of Mehtab Singh defendant since deceased.

2 Chet Ram respondent filed suit alleging that he is owner in possession of the suit plot measuring 3 marlas shown by letters ABCD in the site plan being part of khasra No.353 measuring 1 kanal 9 marlas. Rampat previous owner thereof gifted the same being 10/96 share of Khasra no. 353 to the plaintiff vide registered gift deed dated 18.7.1990. The suit plot came to the share of the plaintiff in mutual partition with other share holders. The plaintiff Remained in possession of the suit plot since the date of gift deed till 31.12.1997. However, the defendant in January, 1998 unauthorisedly encroached upon the suit plot by constructing wall on southern side and has opened a gate therein. Accordingly, the plaintiff claimed relief of possession of the suit plot.

3 The defendant, interalia, pleaded that plaintiff is not owner of the suit plot nor it is part of khasra No.353. The plaintiff never became owner of the suit plot through registered gift deed nor ever came in possession thereof. The defendant is in possession of the suit plot since 21.5.1968 having purchased it from previous owner Rampat for Rs.800/- but later on Rampat avoided execution of registered sale deed. However, possession of the plot was given to defendant on 21.5.1968 and he continues to be in possession thereof since then. Alleged registered gift deed dated 18.7.1990 is fraudulent. Rampat had no right to execute the same. The suit is also barred by Order 2 Rule 2 of the Code of Civil Procedure ( in short, CPC) on account of dismissal of previous suit filed by the plaintiff.

4 Learned Additional Civil Judge (Senior Division), Rewari vide judgment and decree dated 29.11.2004 dismissed the suit of the plaintiff. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Rewari vide judgment and decree dated 25.1.2008, thereby decreeing the suit of the plaintiff-respondent for possession of the suit property by removal of wall and door. Feeling aggrieved, the legal representatives of the defendant have preferred the instant second appeal.

5 I have heard learned counsel for the patties and perused the case file.

6 Learned counsel for the appellants vehemently contended that suit plot is not proved to be part of khasra No.353 as no demarcation thereof was obtained. It was also contended that the plaintiff has not specified the date on which the defendant took possession of the suit land. It was pointed out that according to the plaint, the defendant took possession of the suit land in January, 1998, but in replication and evidence it was stated that possession was taken by the defendant during pendency of the previous suit which was decided on 17.12.1997. It was also contended that the instant suit is barred by res-judicata on account of dismissal of the previous suit instituted by the plaintiff. Learned counsel for the appellants also contended that gift deed is regarding gift of 10/96 share in khasra No.353 measuring 1 kanal 9 marlas and not regarding specific portion of khasra No.353 which is now claimed by the plaintiff. It was also argued that there is no evidence to prove that the plaintiff ever remained in possession of the suit plot.

7 I have carefully considered the aforesaid contentions but find no force therein. As regards proof of possession of the plaintiff over the suit plot, admittedly the suit plot was lying vacant and only wall had been constructed by the defendant. Vacant land is deemed to be in possession of the owner. In the instant case, the defendant is not owner of the suit land. The defendant claimed title on the basis of a writing dated 21.5.1968 in Bahi which is un-registered. The defendant claimed to have purchased the suit land from Rampat for Rs.800/-. However, admittedly no registered sale deed has been executed in favour of defendant regarding suit land. The alleged sale being for