[CASE NUMBER] #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 23.1.2012 [CASE NUMBER] [ENTITY] and others Appellants Versus [ENTITY] and others Respondents
[CASE NUMBER] [ENTITY] and others Appellants Versus [ENTITY] and others Respondents CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellants. [ENTITY], J This order shall dispose of two afore mentioned appeals bearing [CASE NUMBER] and [CASE NUMBER] wherein identical facts and common questions of law are involved. Brief facts are being taken from [CASE NUMBER].
Plaintiff-appellants have filed the present appeal for setting aside the impugned judgment and decree dated 20.10.2011 passed by the learned Additional District Judge, Sonepat whereby an appeal filed [CASE NUMBER] #2# by them against the judgment and decree dated 24.3.2009 passed by learned Additional Civil Judge (Sr. Division), Sonepat dismissing their suit has also been dismissed.
Brief facts of the case are that the plaintiffs-appellants filed a suit for declaration with consequential relief of permanent injunction that they are owners in possession of the dispute as described in the head note of the plaint measuring 13 kanal 15 marla by way of adverse possession but the same was opposed by the defendants-respondent Nos.1 to 3. It is necessary to mention here that during the pendency of the suit, defendant-respondent Nos.1 to 3 sold the suit land to defendant No.4 by way of registered sale deed and thereafter defendant-respondent No.4 was also impleaded as a party and he also filed written statement opposing the suit on the ground that he is bonafide purchaser for valuable consideration for Rs.1,48,91,250/- and has taken the possession thereof from his vendors i.e defendant- respondent Nos.1 to 3. After hearing both the sides, learned trial Court dismissed the suit. On an appeal having been filed, the same has also been dismissed by the learned Appellate Court, hence the present second appeal.
Learned counsel for the appellants argues that the plaintiffs- appellants have become owners by way of adverse possession and as such both the courts have seriously erred while dismissing the suit of the plaintiffs-appellants on the basis of judgment of this Court titled as [PRECEDENT].
[CASE NUMBER] #3# After hearing learned counsel for the appellant and perusing the paper book, this court does not find any merit in the present appeal and the same deserves dismissal.
It is the case of the plaintiffs-appellants that [ENTITY] (since deceased)-the father of the plaintiffs/appellants was the real brother of [ENTITY] (since deceased)-father of defendant/respondent Nos.1 to 3. It is alleged that [ENTITY] entered into a family settlement with said [ENTITY] in the year 1986 and accordingly, the suit land as detailed in para No.1 of the plaint owned by said [ENTITY], had fallen to the share of [ENTITY] whereas the share of land and other properties owned by said [ENTITY] situated in village Holambi Khurd Delhi State had fallen to the share of said [ENTITY]. It is further alleged that later on the exchange was repudiated by the parties but [ENTITY] (since deceased) started cultivating the suit land under the said settlement and he remained in possession with the suit land by way of adverse possession during his life time till his death i.e 7.6.2005. It is further pleaded that possession of said [ENTITY] remained open, hostile, continuous to the knowledge of said [ENTITY] during his life time as said [ENTITY] had also died in April 2001. Thus, their possession has ripened into full ownership by prescription.
The only basis for coming into possession of the land in dispute by the predecessor in interest of the plaintiffs is the family settlement in the year 1986. It has come on record that during the life [CASE NUMBER] #4# time of said [ENTITY] (since deceased) he had filed an application for correction of [ENTITY] of suit land against said [ENTITY] in the court of A.C Iind Grade, Sonepat but the same was dismissed vide order dated 26.10.1990 and in an appeal, the said order was set aside by the learned Collector, Sonepat and the case was remanded back to A.C IInd Grade, Sonepat for fresh decision vide order dated 11.6.1991. Thereafter, again the application was dismissed by the learned A.C IInd Grade vide order dated 27.11.1991 and that order has become final between the parties. In these circumstances, it cannot be inferred that the possession of plaintiffs-appellants is adverse to the respondents-defendants or his predecessors. When [ENTITY] himself had been pursuing his remedy under law for correction of [ENTITY] but the same was initially dismissed vide order dated 26.10.1990 then there was no question to allege that the possession of the plaintiffs-appellants against said [ENTITY] is open, hostile and continuous.
However, the application of said [ENTITY] has been dismissed but it cannot be construed that he was sleeping over his rights and no inference can be drawn for raising the plea of adverse possession against him. Moreover, said [ENTITY] and [ENTITY] were real brothers and only on account of a family settlement of the year 1986, it was claimed that said [ENTITY] entered into the possession of the land in dispute, thus, it is very strange that the adverse possession has been claimed by the real brother in a joint [CASE NUMBER] #5# family property while getting the entry of possession in the column of the [ENTITY] by the Revenue Officials. Even admittedly said family settlement was repudiated by both the parties. Although in the revenue record, said [ENTITY] has been shown as gair marusi tenant and even on that count also both the courts below, in my opinion, have rightly held on the principle that once a person is inducted as a tenant, he shall always remain a tenant and he cannot claim his possession as adverse to the real owners.
Keeping in view the facts and circumstances of the present case, I find that the plaintiffs-appellants have miserably failed to prove that their possession has remained adverse to the defendants- respondents.
Even otherwise, this Court has held in [PRECEDENT]'s case (supra) that a plea of adverse possession is only available to a defendant and no declaration can be sought by the plaintiff with regard to his ownership on the basis of adverse possession. Relevant part of this judgment reads as under:
"Thus, a perusal of the aforesaid [SECTION] shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession."
Even in the latest judgment of Hon'ble Supreme Court [CASE NUMBER] #6# reported as [PRECEDENT], Hon'ble Supreme Court has taken a very serious view of the matter seeking relief of declaration on the basis of adverse possession by State of Haryana through the Superintendent of Police, Gurgaon wherein the Hon'ble Supreme while observing that the Parliament must seriously consider at least to abolish "bad faith"
adverse possession, i.e adverse possession achieved through intentional tres-passing has held as under:
"In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law."
Taking into account the facts and circumstances discussed hereinabove, this Court does not find any substantial question of law involved in the present appeal.
Dismissed.
January 23, 2012 ( [ENTITY] ) manoj JUDGE [CASE NUMBER] #7#