RSA No.4376 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4376 of 2010 Date of Decision: 03.02.2011 Gurbachan Singh and others ……Appellants Versus Vas Dev and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for the appellants. L.N. MITTAL, J (ORAL) Plaintiffs, having remained unsuccessful in both the Courts below, have filed the instant second appeal. Plaintiffs alleged that they are owners in possession of the suit land measuring 26 kanals 10 marlas by adverse possession. Defendants filed petition against the plaintiffs under Section 14-A of the Punjab Security of Land Tenures Act, 1953 (in short, the Tenures Act) alleging themselves (defendants herein) to be owners and alleging the plaintiffs herein to be tenants. The said eviction petition was dismissed by Assistant Collector vide order dated 03.05.2001 holding the plaintiffs herein to be owners in possession of the suit land. Relationship of landlord and tenant between the parties was not proved in that case. Defendants have no right, title or interest in the suit property. However, defendants herein claiming themselves to be mortgagees of the suit land filed suit against one Mangu Ram and against general public. The said suit was decreed ex parte by RSA No.4376 of 2010 - 2 - Civil Court vide judgment and decree dated 04.05.2001 declaring the defendants herein to be owners of the suit land and on its basis mutation No.1775 has been entered in their favour. The said judgment and decree and the mutation have been challenged by the plaintiffs in the suit being illegal, null and void as plaintiffs are owners in possession of the suit land by adverse possession. Accordingly, the plaintiffs sought declaration that plaintiffs are owners in possession of the suit land by adverse possession and that judgment and decree dated 04.05.2001 in civil suit No.24 of 1997 in respect of the suit land in favour of defendants herein and the consequent mutation are illegal, null and void and not binding on the plaintiffs. Permanent injunction restraining the defendants from alienating the suit land and from dispossessing the plaintiffs therefrom forcibly and illegally was also sought. Defendants broadly denied the plaint allegations and pleaded that defendants are owners of the suit property. In ejectment petition under the Tenures Act, it was not held that plaintiffs herein are owners of the suit land. Judgment and decree dated 04.05.2001 declaring defendants herein to be owners of the suit land and consequent mutation are legal and valid and binding on the plaintiffs. Defendants also made counter-claim for possession of the suit land alleging themselves to be owners thereof. It was alleged that in eviction petition filed by defendants against the plaintiffs under the Tenures Act, plaintiffs denied the title of the defendants and also denied the tenancy and consequently, the plaintiffs are trespassers over the suit land. Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 26.08.2009 dismissed the plaintiffs’ suit and decreed the counter-claim of the defendants. First appeal preferred by plaintiffs has been dismissed by learned District Judge, Kurukshetra vide RSA No.4376 of 2010 - 3 - judgment and decree dated 27.08.2010. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Insofar as claim of the plaintiffs that they have become owners of the suit land by adverse possession is concerned, the same cannot be accepted. Firstly, the plaintiffs have failed to prove that they are in adverse possession of the suit land or that their possession was for more than 12 years prior to the filing of the suit. On the contrary, they were recorded to be tenant over the suit land in the revenue record. Thus their possession was not adverse. However, since in ejectment petition under the Tenures Act, the plaintiffs denied the tenancy and also denied the title of the defendants, thereupon the plaintiffs have become trespassers on the suit land. The ejectment petition was dismissed vide order dated 03.05.2001 and instant suit was filed on 22.09.2003. Consequently, it cannot be said that plaintiffs have become owners of the suit land by adverse possession. Concurrent finding of fact recorded by both the Courts below against the plaintiffs in this behalf is fully justified by the evidence on record and is supported by detailed reasons and does not require interference in second appeal. Secondly, plaintiffs cannot claim title by adverse possession by filing suit. Adverse possession could be set up only as defence. Declaration that plaintiffs have become owners of the suit land by adverse possession, cannot be claimed and suit to claim the said relief is not maintainable. I am supported in this view by two judgments of this Court in the case of Bhim Singh and others versus Zile Singh and others, 2006 (3) Civil Court Cases 479 and Dewaki and others versus Dayawanti and others, 2006(3) Civil Court Cases 615. Even otherwise as per documents on record, plaintiff’s possession is found recorded in jamabandi for 1996-1997 at the earliest and, therefore, even possession of the RSA No.4376 of 2010 - 4 - plaintiffs’ over the suit land for more than 12 years prior to the filing of the suit is not proved. Learned counsel for the appellants vehemently contended that the appellants are aggrieved by the decree of the counter-claim of defendants by the Courts below. It was contended that since plaintiffs were tenants over the suit land, decree for possession could not be passed by the Civil Court. The contention is devoid of merit and is in fact frivolous and inspired by dishonesty and malafide claim of the appellants. Defendants had filed eviction petition under the Tenures Act against the plaintiffs claiming the plaintiffs to be tenants over the suit land. However, plaintiffs themselves denied the tenancy in the said proceedings and consequently, the said eviction petition was dismissed by the Revenue Court as relationship of landlord and tenant between the parties was not proved. Consequently, the plaintiffs cannot now turn around and claim themselves to be tenants over the suit land. The plaintiffs cannot be permitted to blow hot and cold in the same breath. The plaintiffs want to have best of both the worlds. In the ejectment petition under the Tenures Act, the plaintiffs denied their tenancy. However, now they want to claim their tenancy over the suit land to deny the benefit of decree for possession of the suit land passed by the Courts below. Even otherwise, the plaintiffs in the plaint claimed their adverse possession over the suit land. Consequently, plaintiffs cannot raise the plea of their tenancy over the suit being diagonally opposite to their pleadings. There is no infirmity much less illegality or perversity in the findings of the Courts below so as to call for interference in second appeal. The entire claim of the plaintiffs in the suit as well as in reply to the counter claim is completely frivolous and meritless and is result of dishonesty. The plaintiffs have no right, title or interest in the suit land. They are rank trespassers after denying their tenancy over the suit land. Consequently, RSA No.4376 of 2010 - 5 - counter claim of the defendants has been rightly decreed. Plaintiffs have right or locus standi to challenge decree dated 04.05.2001 whereby defendants herein were declared to be owners of the suit land. For the reasons aforesaid, I have no hesitation in concluding that the instant second appeal is completely frivolous and meritless. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 03.02.2011 A.kaundal