R.S.A.No. 1886 of 2010 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1886 of 2010 Date of decision: 15.2.2011 Chatar Singh and others ......Appellants Versus Ram Kishan and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.K.Sharma, Advocate, for the appellants. **** SABINA, J. Plaintiffs had filed a suit for declaration that they were owners in possession of the suit land on the basis of adverse possession. The case of the plaintiffs, in brief, was that they were cultivating the suit land for the last more than 100 years without payment of rent to any individual. There possession was open and hostile to the whole world. In the year 1951, Sardara filed a suit for ejectment against the plaintiffs and their predecessor-in-interest. The said suit was dismissed on 7.12.1954. No appeal or revision had R.S.A.No. 1886 of 2010 2 been filed against the said order. Hence, the plaintiffs had become owner of the suit land by way of adverse possession. The defendants, in their written statement, averred that the suit land had been cultivated by the plaintiffs as tenants. The plaintiffs had remained out of possession from time to time and their possession was not continuous or hostile. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners and in possession of the suit land as alleged in the plaint? OPP. 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether this Court has no jurisdiction to try the suit? OPD 4.Whether the plaintiffs have no locus standi to file the present suit ? OPD 5. Whether the plaintiffs are estopped by their own act and conduct from filing the suit? OPD 6. Whether the plaintiffs have no cause of action to file the present suit ? OPD 7. Whether the suit is barred by principle of resjudicata ? OPD 8. Whether the suit is bad for non-joinder and mis- joinder of necessary parties ? OPD 9. Relief.” The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 18.3.2008. Appeal filed by the plaintiffs R.S.A.No. 1886 of 2010 3 was also dismissed vide judgment and decree dated 17.9.2009 passed by Additional District Judge, Rohtak. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the suit filed by the plaintiffs was maintainable. Plaintiffs had been successful in establishing that their adverse possession had matured into ownership. In support of his arguments, learned counsel for the appellants has placed reliance on Partap Kaur vs. Ismail Mohd. PLR Vol.CXL VII-(2007-3) 556, wherein, in para 12, it was held as under:- “In this case, it has been proved through the evidence that the respondent-plaintiff was in possession of this suit land to the knowledge of public and to the owner. Moreover, in the present case, no evidence in rebuttal to the assertion made by the respondent-plaintiff had been led and, as such, all these cases would not apply to the facts and circumstances of the present case. All the cases referred were decided on the basis of evidence on record in the respective cases. Here there is no evidence in rebuttal to the evidence given by the respondent- plaintiff.” Learned counsel has further placed reliance on Kirpa and others vs. Dharma and others PLR Vol.CXLIV-(2006-3),613 wherein, it was held as under:- “In the present case, there exists convincing evidence to show ouster, from the land in dispute, of appellants No.2 to 5/their fore-fathers. It is clearly established on record R.S.A.No. 1886 of 2010 4 that they had abandoned their rights and on account of that, their ownership in the property had extinguished and respondents No.1 and 2 along with their brothers have become owners in equal shares in the property, subject matter of dispute, by way of adverse possession.” Learned counsel has also placed reliance on Bhupinder Nath (D) by LR and another vs. Surasti (D) by LRs AIR 2005 P&H 222, wherein, in para 26, it was held as under:- “Thus, in pursuance of the above discussion, it is concluded that the plaintiff became owner by adverse possession and the findings recorded by both the Courts below do not suffer from any illegality or infirmity and are hereby affirmed. The substantial questions of law as framed and claimed by the appellants are, therefore, answered in favour of the plaintiff and against the appellants.” Learned counsel has next placed reliance on Des Raj and others vs. Bhagat Ram (D) by LRs and others,(2007)9 SCC 641, wherein, in para 22, it was held as under:- “Mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendants-appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendants-appellants claimed themselves to be co- R.S.A.No. 1886 of 2010 5 owners of the plaintiff. A bare perusal of the judgments of the courts below clearly demonstrates that the plaintiff had even therein asserted hostile title claiming ownership in himself. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants. They allowed the first suit to be dismissed in the year 1977. Another suit was filed in the year 1978 which again was dismissed in the year 1984. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action therefor would be continuous one. But, it is equally well- settled that pendency of a suit does not stop running of 'limitation'. The very fact that the defendants despite the purported entry made in the revenue settlement record of rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly go to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.” Learned counsel has further placed reliance on Krishnamurthy S.Setlur dead by LRs vs. Q.V.Narasimha Setty and others PLR Vol.CXLVI (2007-2),800 wherein, it was held as under:- “In the plaint, the plaintiff who claims to be owner by adverse possession has to plead actual possession. He R.S.A.No. 1886 of 2010 6 has to plead the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title. He has to communicate his hostility to the real owner. None of these aspects have been considered by the High Court in its impugned judgment. As stated above, the impugned judgment is under section 96 CPC, it is not a judgment under section 100 CPC. As stated above, adverse possession or ouster is an inference to be drawn from the facts proved that work is of the first appellate court. “ After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The plaintiffs had filed a suit for declaration that they had become owners of the suit land on the basis of adverse possession. In Bhim Singh and others vs. Zile Singh and others 2006 (3) RCR (Civil) 97, it was held as under:- “10. At this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows : Description of suit Period of limitation Time from which period begins to run Article 64 R.S.A.No. 1886 of 2010 7 For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession. Article 65 For possession of immovable or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff. Explanation - For the purpose of this Article - (a) Where the suit is by a remainder-man, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainder-man, reversioner or devisee, as the case may be, falls into possession; R.S.A.No. 1886 of 2010 8 (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. 11. Under Article 64 of the Limitation Act, a suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the R.S.A.No. 1886 of 2010 9 defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned "when the possession of the defendant becomes adverse to the plaintiff". Thus, a perusal of the aforesaid Article 65 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. 12. I am supported by a judgment of Delhi High Court in 1993(3) Punjab Law Reporter (Delhi Section) 70 (Prem Nath Wadhawan v. Inder Rai Wadhawan). 13. The following observations made in the Prem Nath Wadhawan's case (supra) may be noticed : "I have given my thoughtful consideration to the submissions made by the learned counsel for the R.S.A.No. 1886 of 2010 10 parties and have also perused the record. I do not find any merit in the contention of the learned counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession." 14. At this stage, it may also be relevant to notice the relevant portion of paras 134 and 135 of the 3rd report of Law Commission of India as follows : If the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non- suiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example : If A, B and C are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, though the last trespasser C was not in possession except for a R.S.A.No. 1886 of 2010 11 short period." "In our opinion, article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff's prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner's entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 R.S.A.No. 1886 of 2010 12 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession." 15. Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title.” In the judgments relied upon by learned counsel for the appellants, although the plaintiffs had filed suit basing their claim on adverse possession but the point was not in specific issue as to whether the suit basing claim on adverse possession was maintainable or not. In Bhim Singh’s case (supra) the point in issue specifically was as to whether the plaintiff could base his claim on the plea of adverse possession or whether the plea of adverse possession could merely be taken in defence. In these R.S.A.No. 1886 of 2010 13 circumstances, the judgments relied upon by learned counsel for the appellants fails to advance the case of the appellants. In view of the decision in Bhim Singh’s case (supra), the suit of the plaintiffs had been rightly dismissed by the Courts below. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 15, 2011 anita