R.S.A.No. 4928 of 2010(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4928 of 2010(O&M) Date of decision: 2.6.2011 Ram Sarup ......Appellant Versus Kailash Chand and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.P.R.Yadav, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for declaration. The case of the plaintiff, in brief, was that he was in possession of the suit property since the year 1962-63 without any obstruction and had, thus, become owner of the suit property by way of adverse possession. Defendants No. 1,3,4, 5, 10 and 11 filed their written statement but their defence was struck off. Remaining defendants were proceeded ex parte. The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 9.11.2009. Appeal filed by the plaintiff R.S.A.No. 4928 of 2010(O&M) 2 against the said judgment and decree was also dismissed vide judgment and decree dated 31.3.2010 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that both the Courts below had dismissed the suit of the plaintiff on the ground that the suit filed by the plaintiff basing his claim on adverse possession was not maintainable. In fact, the suit filed by the plaintiff was maintainable. In support of his arguments, learned counsel has placed reliance on Karnataka Board of Wakf vs. Government of India and others 2004 (3) Civ.C.C.326. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. 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 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 R.S.A.No. 4928 of 2010(O&M) 3 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; (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; R.S.A.No. 4928 of 2010(O&M) 4 (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 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 R.S.A.No. 4928 of 2010(O&M) 5 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 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 R.S.A.No. 4928 of 2010(O&M) 6 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 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 R.S.A.No. 4928 of 2010(O&M) 7 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 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 R.S.A.No. 4928 of 2010(O&M) 8 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.” I have gone through the judgment relied upon by learned counsel for the appellant. In the said case, the point in controversy was not specifically in issue before the Apex Court as to whether a suit could be filed on the basis of adverse possession, whereas, in Bhim Singh's case (supra) , the point in controversy was specifically in issue as to whether the suit basing claim on adverse possession was maintainable. It has been held in Bhim Singh's case (supra) that a suit cannot be filed by a person basing claim on adverse possession and the plea of adverse possession can only be taken in defence. In these circumstances, the Courts below had R.S.A.No. 4928 of 2010(O&M) 9 rightly dismissed the suit of the plaintiff. The judgment relied upon by learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. 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 June 02, 2011 anita