IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3941 of 2006 Decided on : 26.10.2009 Smt. Swaran Kaur ... Appellant versus Mukhtiar Singh & another ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. S.S.Dinarpur, Advocate for the appellant. Mr. Arvind Singh, Advocate for respondent No.2. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) This order shall dispose of RSA Nos.3941 & 4103 of 2006 as common questions of facts and law are involved. This appeal has been filed against the concurrent judgments of the courts below dismissing the suit of the appellant-plaintiff that they had become owners of the property in dispute by way of adverse possession. The following questions have been proposed: i) Whether the judgments passed by both the courts below are illegal, unjust, arbitrary, against the evidence and the same are liable to be modified? ii)Whether the possession of the appellant over the suit land since the year 1975 is illegal, unauthorised and hostile and she has perfected her title by way of adverse possession in view of Ex-P8 nd Ex-P13? iii)Whether the findings of both the courts below holding the appellant to have entered upon the land as tenant is against the evidence especially in view Ex.P-23 & Ex.P-24 and the order dt. 14.12.1999 vide which the amendment had been allowed? iv)Whether the sale deed Ex.P1 is a fictitious document and the same is devoid of any sanctity? v)Whether grave and manifest injustice has been occasioned to the appellant? The main question was question No.(ii). With regard to this question, Courts below have held that a suit claiming ownership on the basis of adverse possession does not lie. To this learned counsel for the appellant has argued that issue No. (iv) was with regard to the maintainability of the suit and the same was specifically given up by the respondent. He relied upon the decision of this court in the case of Haryana State Agricultural Marketing Board & another vs. Harish Chander & others, reported as 2006(3)RCR (Civil) page 699, particularly on para 10 which is as follows: “Sh. S. P. Singh, learned counsel for the appellants further contended that the suit was barred by limitation as the possession of the land in question was being sought after long lapse of time. However, I do not find any merit in this contention. A perusal of the record shows that even though, the plea of limitation has been raised, yet the appellants had given up the same and had not pressed it before the courts below. In view of this, when the objection had been voluntarily abdicated by the appellants, it does not lie in their mouth to raise the plea of limitation in the second appeal. Even otherwise, the suit was not only for declaration, but was also for injunction and the respondents were well within their right to file the suit as their possession over the suit land by way of interference by the appellants was being threatened.” There are three reasons why this judgment is distinguishable. Firstly, it is well known that the plea of limitation can be waived. However, a legal infirmity in a suit (for instance, the question of its maintainability) is a question of law which can be raised at any time. Apart from that in the cited case, the appeal was dismissed not only on the ground of giving up of plea but also on the ground that the respondents had made out a case of grant of injunction. Thirdly, question No.(ii) and question No.(iv) overlap. Thus, once the respondents had made out a case regarding non-maintainability under question No.(ii), the fact that they had given up question No.(iv) would not be material. In this view of the matter, question No.(ii) has to be answered against the appellant. Once the main question No.(ii) is answered against the appellant, the peripheral questions do not arise. Consequently, this appeal is dismissed. October 26, 2009 (AJAY TEWARI) sonia JUDGE