IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3940 of 2002 (O&M) Date of Decision : 21.11.2007 Darshan Singh & Anr. ..........Appellants Versus Gurdev Kaur & Ors. ......Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr.Amit Rawal, Advocate for the appellants. Mr.G.S. Punia, Advocate for the respondents. **** VINOD K. SHARMA, J. This regular second appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Ludhiana decreeing the suit filed by the plaintiff respondents for possession of land measuring 26K-4Ms situated at village Burmi, Tehsil Raikot. The respondent plaintiffs filed a suit on the plea that Kartar Singh and Ralla Singh were brothers. Ralla Singh had no issue whereas Kartar Singh had three sons namely Darshan Singh, Gulzar Singh and Dalbara Singh. Dalbara Singh was adopted by Ralla Singh vide adoption deed dated 21.11.1945. Dalbara Singh died in the year 1970. A suit was filed by Ralla Singh which was dismissed by the learned Court of Sub Judge Ist Class, Jagraon on 3.2.1976 in which Ralla Singh had claimed a declaration to the effect that he was owner in possession of land measuring 36K-4M i.e. the disputed land. It was claimed that the defendants had no concern or connection with or in the said suit land. Thereafter, Ralla Singh filed an appeal before the District Court against the judgment and decree dated 3.2.1976 passed by the learned Court of Sub Judge Ist Class, Jagraon. The said appeal was accepted by the learned District Judge, Ludhiana vide its judgment and decree dated 3.11.1977. Thereafter, the plaintiffs filed regular second appeal No. 80 of 1978 in this Court, which was accepted on 27.2.1987 by the Hon'ble Single Judge of this Court by setting aside the judgment and decree passed by the learned Addl. District Judge, Ludhiana and restoring that of the Sub Judge Ist Class, Jagraon. Ralla Singh by taking undue advantage of the judgment and decree passed by the learned Addl. District Judge, Ludhiana, by ignoring that of Sub Judge Ist Class, Jagraon, which was decided in favour of plaintiff Nos. 2 & 3, who were minors, took possession of the suit land during the pendency of the appeal before the Hon'ble High Court. Darshan Singh and Gulzara Singh executed a paper transaction of sale and Will in their favour in respect of the suit land during the pendency of the said appeal before the High Court. It was claimed that both the sale deeds and alleged Will, being against the rights of the plaintiffs, was void and illegal as the parties were bound by the order passed by the High Court because S.L.P. against the judgment and decree of the High Court was also dismissed by the Hon'ble Supreme Court on 27.11.1991. It was claimed that the mutation of the suit land during the pendency of the appeal sanctioned in favour of the defendants was illegal and liable to be ignored as per the orders of the Hon'ble High Court dated 27.2.1987 because the intention of Darshan Singh and Gulzara Singh was to deprive the plaintiffs of the property by influencing overwhelming or having any other exercise over the mind of Ralla Singh to deprive Darshan Singh and his sons and his representatives even of property which he would have got in the natural succession. Darbara Singh was the son of Kartar Singh out of whose property he would have got 1/3rd share by natural succession but because of his adoption by Ralla Singh he has been deprived of natural succession as well as succession to his adopted father. It was also the case of the plaintiffs that after the death of Darbara Singh, Kartar Singh and Ralla Singh made an attempt to become guardian of plaintiffs No. 2 & 3 as they were minors at that time against plaintiff No.1, who was their natural guardian. An appeal was also filed to show that Kartar Singh and Ralla Singh were in possession of land left behind by Dalbara Singh but a receiver was appointed to auction the land during the year 1976-77 by virtue of which plaintiffs were entitled to get the possession of the suit land in view of the judgment and decree passed by this Court on 27.2.1987. An application under Section 144 C.P.C. for restoration of possession was filed by the plaintiffs which was ultimately found not to be maintainable and, therefore, the present suit for possession was filed. The claim was also made for correction of revenue record as per the findings of this Court. The notice of the suit was given to the defendants, who contested the case by raising preliminary objection that the plaintiffs have no right,title or interest in the property in dispute and that they cannot claim possession of the suit property. It was claimed that Ralla Singh deceased was owner in possession of the property in dispute, who had become owner of the property by way of adverse possession by virtue of which, plaintiffs have lost their rights and remedies if any in respect of the property in dispute. It was claimed that defendants being purchasers from Ralla Singh, since deceased, have continued in possession of the property in dispute as owner in pursuance to the purchase vide two sale deeds dated 24.6.1981 in pursuance of which possession of the suit property was delivered to the purchasers at the spot and since then they are in possession of the property in dispute as owners openly, adversely and hostile to the knowledge of the whole world. The plaintiffs are estopped by their act and conduct to file the present suit which was not properly valued for the purposes of Court fee and jurisdiction. On merits, it was claimed that Dalbara Singh, who died in the year 1970 was adopted by Ralla Singh. The suit filed by Ralla Singh was dismissed by the learned Sub Judge Ist Class, Jagraon whereas the appeal filed by him was accepted by the learned Addl. District Judge, Ludhiana. Gurmukh Singh and Lakhbir Singh said to have filed a civil Suit No. 229/252 which was dismissed on 17.12.1979. In the said suit for injunction it was held that the plaintiffs were not in possession of the land when they filed said suit and they did not enter into possession of the land even thereafter whereas defendant Ralla Singh was found to be in possession of the land in dispute. Similarly, Ralla Singh also filed a civil suit No. 63 of 1979 against Gurdev Kaur and others which was decreed in respect of the property in dispute in which it was held that Ralla Singh was proved to be in possession of the property as owner by virtue of which the suit of the plaintiffs was held to be barred. Mutation was entered in favour of Ralla Singh after the decision by the learned Addl. District Judge, Ludhiana and Khasra Girdawari and Jamabandi also indicate the said fact and thereafter, the defendants on the basis of registered sale deeds dated 24.6.1981 were in possession as owners of the property in dispute. The sale deeds were executed by Ralla Singh bona fide for consideration. The defendants have become the owners by adverse possession as they have been actually, physically, openly and hostile to the whole world including the plaintiffs and adversely in possession as owner and their possession can be easily tacked with possession of Ralla Singh, the predecessor in interest of the defendants because the possession was never surrendered to Dalbara Singh by Ralla Singh, who executed registered sale deeds for consideration in favour of the defendants. High Court did not decide the adverse possession of Ralla Singh viz-a-viz adverse possession of the defendants. There was no question of depriving the plaintiffs of any property as the plaintiffs had no right, title or interest in the property in dispute as Dalbara Singh was not natural son of Kartar Singh, who was never deprived of any share by Ralla Singh. Guardian Court has to appoint a receiver but the possession of the property was taken from Ralla Singh by receiver and not by Dalbara Singh or any of his legal heir and the possession from receiver was taken by Ralla Singh. From the pleadings of the parties, following issues were framed by the learned trial Court :- 1. Whether the sale deeds No. 6156 and 6157 are liable to be set aside as alleged ? OPP 2. Whether mutation No. 4958 dated 19.12.1977 is liable to be set aside as alleged ? OPP 3. Whether the plaintiff is entitled to possession of the suit land ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the possession of the defendant over the suit land is adverse possession to the plaintiff ? OPD 6. Whether the suit is barred by time ? OPD 7. Whether the plaintiffs are estopped by their acts and conduct from filing the suit ? OPD 8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ? OPD 8(a) Whether the suit is barred by Order 2 Rule 2 C.P.C. ?OPD 9. Relief. Issue No.6 framed to the effect “whether the suit is barred by time ? was amended by the learned Addl. Civil Judge (Sr.Divn.), Jagraon vide order dated 12.3.1997 in the following manner on an application moved by the defendants. “6. Whether the suit is within limitation ? OPP Issues No.1 to 6 were taken together by the learned trial Court and were decided against the plaintiffs. On issue No. 7, it was held that the plaintiffs are estopped by their acts and conduct from filing the suit. Issue No.8 was decided in favour of the plaintiffs and consequently the suit filed by the plaintiffs was ordered to be dismissed. The plaintiff respondents filed an appeal against the judgment and decree passed by the learned trial Court. The learned Addl. District Judge, Ludhiana was pleased to allow the appeal and consequently the suit filed by the plaintiff respondents for possession was ordered to be decreed. The learned lower appellate Court was pleased to observe as under :- “That suit had been dismissed by Sh. S.K. Garg. But a perusal of his judgment goes to show that he had heavily relied upon judgment of Sh. Amarbir Singh, the then Additional District Judge, Ludhiana holding Ralla Singh to be owner in possession of land while dismissing the suit filed by Gurmukh Singh, Lakhbir Singh etc. Since judgment and decree of Sh. Amarbir Singh Gill, have been set aside in regular second appeal, the very basis of this judgment goes and this does not help the defendants in any way. X.D.4 is decree sheet in that suit. Defendants are further placing reliance upon judgment Ex.D5 delivered in civil suit No. 63 of 1979 filed on 17.4.1979 decided on 8.11.1979 by Sh.M.S. Walia, the then Subordinate Judge Second Class, Jagraon, a suit for grant of permanent injunction filed by Ralla Singh against Gurdev Kaur, Ajaib Singh etc. in that suit Sh. Walia held that Ralla Singh was owner in possession of suit land. He gave a very strange finding rather he indulged in over doing. In a suit for injunction, question of title is not to be decided. It is difficult to understand as to how Sh. Walia embarked upon path of declaring Ralla Singh to be owner of land when he had not sought such a declaration. Further more this judgment cannot over ride judgment of Hon'ble High Court in Regular Second appeal vide which Ralla Singh was not held to be owner in possession of suit land and his suit was dismissed. Judgment of Sh. Walia is least convincing and does not show proper application of mind. Ex.D6 is decree sheet in that suit. After winning the battle upto Hon'ble Supreme Court, the present plaintiffs have filed an application u/s 144 Cr.P.C. for restitution of possession contending that since decree of Additional District Judge, Ludhiana dated 3.11.1977 had been set aside in regular second appeal and Ralla Singh had come into forcible possession of suit land on strength of that decree, therefore, possession be got restored to them. Sh. K.S. Bhullar, then Sub Judge Ist Class, Jagraon vide his order dated 2.6.1992 had directed issuance of warrant of possession but on an appeal having been preferred, Sh. A.S. Sodhi, the then Additional District Judge, Ludhiana, vide his judgment dated 11.9.93 copy Ex.D7 accepted the appeal and set aside order of Sh. K.S. Bhullar observing that since Ralla Singh had not obtained possession under order of the court and had got into possession unlawfully application for restitution was not maintainable and remedy of applicants was only by way of independent suit. This judgment was challenged by present appellants by way of filing appeal in Hon'ble High Court. Mr. Justice N.K. Kapoor, Hon'ble High Court of Punjab & Haryana while dismissing their appeal on 7.10.1994 observed that application u/s 144 C.P.C. filed by plaintiffs was misconceived. Then they filed suit for possession which was registered as civil suit No. 59 of 13.2.95, which suit was vehemently resisted by defendants, contending that suit was time barred. A very interesting situation has arisen. After getting a verdict in their favour by present plaintiffs from Hon'ble High Court which has been affirmed by Apex Court, the plaintiffs, who had been dispossessed by defendants having no right or concern with the suit land sought possession of that land filing application u/s 144 CPC which although was allowed by trial Court but declined by first appellate Court and second appellate Court. There the plea of present defendants, to which the appellate Court agreed was that the proper remedy for plaintiffs was to file suit for possession and when the plaintiffs filed suit for possession, then defendants came up with objections that suit was time barred. It is a classic case of “Heads I win, tail you lose”. The defendants are trying to create 'no win' situation for the plaintiffs. Plaintiffs being legal representatives of Dalbara Singh, owner of suit land, are being denied possession of that land on one ground or the other. And unfortunately, the trial Court was swayed away by the arguments put forward on behalf of defendants and trial Court did not go deep into the matter and applied its mind properly to the facts and circumstances of the case, completely mis- appraising the evidence and rather mis-interpreted the law. In para No.8 of the judgment, a reference has been made to some admission on part of attorney of plaintiff while facing cross examination that Ralla Singh, deceased had come into possession of suit land in the year 1970. The statement of witness is to be seen in whole, one or two lines cannot be picked up and interpreted in isolation so as to give meaning favourable to particular party. Gurdev Singh in his examination-in-chief stated that Ralla Singh forcibly took possession of disputed land though at that time case was pending in the Hon'ble High Court. This contention can simply be not washed away. He further stated that date of birth of Lakhbir Singh, plaintiff is 30.5.69 and that of Gurmukh Singh 30.5.67. Copies of their school certificates being Ex.P1 and Ex.P.2 Ralla Singh and defendants taking advantage of minority of plaintiff Gurmukh Singh and Lakhbir Singh and Gurdev Kaur being widow, taking forcible possession, the courts are not to put seal of approval on such illegal acts of Ralla Singh and defendants. When Hon'ble High Court in regular second appeal had observed that Ralla Singh was not owner in possession of suit land, the trial Court fell in gross error in relying upon any alleged admission of attorney of Gurdev Kaur etc. so as to come to conclusion that Ralla Singh were in possession of suit land since year 1970. The revenue record proved in evidence on behalf of plaintiffs show that till the year 1971-72 Dalbara Singh has shown to be owner in possession of suit land. Justice N.K. Kapoor has observed that application filed u/s 144 CPC was misconceived and he has no where observed that plaintiffs were not entitled to possession of suit land. As regards the arguments that plaintiffs should have filed the suit immediately when Ralla Singh had taken possession from them is fallacious. When matter had been pending before Hon'ble High Court in Regular Second Appeal between the parties, there was no necessity of plaintiffs filing a separate suit at that time. There is no question of defendants having become owners by way of adverse possession in terms of section 27 of Limitation Act and title of plaintiffs coming to an end. I wonder when Hon'ble High Court in judgment delivered on 27.2.1987 observed that Ralla Singh was not owner in possession of suit land, how the trial Court is coming to contrary conclusion stating that title of plaintiffs in the suit land stood extinguished and limitation once started cannot be stopped. As a matter of fact cause of action to recover possession had arisen to plaintiffs when the regular second appeal had been decided by Hon'ble High Court on 27.2.1987. The suit filed is within 12 years thereof and cannot be held to be time barred. The plaintiffs are running from pillar to post to seek possession of land belonging to them and defendants are retaining possession of land to which they have no right. Counsel for appellants had referred to various authorities i.e., KARUNAKARAN NAIR Vs. MEHTA (P) LTD.' 1998 (3) CCC page 167 wherein Hon'ble High Court of Kerala had observed that it is not necessary to get the benefit of S.144 that the possession should have been lost through a process of execution. If a person dispossessed under the colour of the decree and that decree is subsequently reversed, then he is entitled to restitution. He further referred to “MRS. KAVITA TREHAN AND ANOTHER VS. BALSALA HYGIENCE PRODUCTS LTD., AIR 1995 Supreme Court page 441, wherein it was observed that the law of restitution encompasses all claims founded upon the principle of unjust and enrichment. Restitutionary claims are to be found in equity as well as at law and that section 144 CPC incorporates only a part of the general law of restitution and is not exhaustive and further in case not falling within ambit of section 144 restitution can be made under inherent powers. He further referred to “GURDIT SINGH (DEAD) THROUGH L.Rs. Vs. NIRMAL SINGH,” 2001 (1) S.L.J. 362 by Hon'ble Supreme Court of India, “THE ASSISTANT EXECUTIVE ENGINEER VS. B.K.NAGARAJU”, 1998 (1) CCC 217 by Hon'ble High Court of Karnataka in that regard. Counsel for appellants had argued that the appellants are entitled to get the period for which they had been prosecuting application u/s 144 CPC excluded from the period of limitation. To press home this point, he referred to “GHASI RAM AND ORS. Vs. CHAIT RAM SAINI & ORS.' 1998 (2) Apex Court Journal 361(S.C.) wherein it had been observed that to get benefit of S. 14, the party seeking its benefit must fulfill the four conditions- (1) The plaintiff who filed the suit had been prosecuting another civil proceedings with due diligence; (2) The earlier proceeding resorted by the plaintiff was based on the same cause of action (3) The former proceeding was prosecuted by the plaintiff in good faith in a Court;(4) The court, due to the defect of jurisdiction or other cause of a like nature, was unable to entertain such proceeding. In support of his contention that defendants have failed to show as to which date their possession had become adverse the suit is not time barred Sh. Singal relied upon “Parwatabai Vs. Sonabai & Ors.”, 1997 (1) S.L.J. 276, wherein Hon'ble Supreme Court of India had observed that suit for possession has to be filed within 12 years and it is for appellant to prove as to on which date his prosecution became adverse to respondent title. Sh. Singal further placed reliance upon “UJAGAR SINGH Vs. SHIVRAJ SINGH”, 1997 (1) CCC PAGE 313, wherein Mr. Justice R.L. Anand of Hon'ble High Court of Punjab and Haryana had observed that plea of adverse possession is destructive as the defendants themselves claimed to be the owners of property by virtue of conveyance deeds. He further referred to “NAHAN FOUNDRY LIMITED, NAHAN DISTRICT SIRMUR VS. JOGINDER SINGH AND OTHERS.” 1996 (1) S.KL.J. PAGE 325, WHEREIN MR. Justice N.K. Kapoor of Hon'ble High Court of Punjab and Haryana had observed that a person claiming possession on the basis of title can institute a suit for possession within a period of twelve years when the possession of such a person become adverse to that of plaintiff. The onus is upon a person, who sets up the hostile title. He further referred to “GURCHARAN SINGH VS. GRAM PANCHAYAT, GAJRAL “ 2001 (1) S.L.J. 587 wherein justice Swatanter Kumar of Hon'ble High Court of Punjab and Haryana had observed that the pre-requisite of claiming adverse possession is admitted ownership of another person. He furthe placed reliance upon “Babu Khan & Ors. Vs. Nazim Khan (dead) by L.Rs. And others,: 2001 SAR (CIVIL) 430 BY THE Apex Court in support of his argument that suit of appellant is within limitation . He further referred to “”MARWARI KUMAR & ORS. Vs. BHAGWANPURI GURU GANESHPURI & ANR.”, 2000(2) Apex Court, 66 (S.C.) wherein it was observed that when there is no proof as to date time and manner in which possession as Pujari got converted into open, hostile and adverse, the claim for adverse possession is untenable. As regards the plea that suit is not barred under Order 2 Rule 2 CPC Sh. Singh relied upon “ASHOKA BUILDERS AND PROMOTORS VS. EDWARD KEVENTER (SUCCESSORS) P. LTD.”, 1994 (1) CCC page 351 and “S.H.TARALAGATTI VS. UNION OF INDIA & OTHERS', 1982 (2) CCC page 260, by Hon'ble High Court of Karnatka. On the other hand, counsel for respondent referred to “RAJINDER SINGH AND OTHERS VS. SANTA SINGH AND OTHERS” AIR 1973 Supreme Court page 2537, wherein it has been observed by Apex Court that when there had been adverse possession of defendants for over 12 years, the pendency of earlier suit by defendants, which was finally dismissed by High Court would not arrest the running of period of limitation during pendency of that suit. This authority if not applicable due to different facts. Here the defendants have failed to show that they or their predecessor Ralla Singh had been in open, notorious hostile continues possession of suit land to the knowledge of plaintiffs and their possession has matured into ownership. They are not clear regarding the date when their adverse possession started. The allegation in that regard are very vague and of general type which do not make any sense. Similarly, the second authority referred to by Sh. Garg “THIMALAH VS. MADEGOWDA”, AIR 1989 KARNATAKA page 83 is not applicable. Regarding the next authority “P.K. KUTTY ANUJA RAJA VS. STATE OF KERALA” 1996 (1) Apex Court Journal 346 (S.C.) by Hon'ble Supreme Court of India wherein it had been observed that once the limitation starts running it runs its full course until the running of the limitation is intradicted by an order of the Court. There is no dispute with the proposition of law laid down in this authority but here the suit filed by plaintiffs has been found to be within period of limitation. As regards the next authority “RAO NARAIN SINGH Vs. DURGA DEVI;, 1998 (1) CCC PAGE 645 BY Mr. Justice V.K. Jhanji of Hon'ble High Court of Punjab and Haryana Under Order 2 Rule 2 CPC when plaintiff had filed a suit for injunction when a right to suit for specific performance had accrued but that relief had not been claimed and suit was found to be hit by Order 2 Rule 2 CPC. Here the facts are entirely different. The suit of plaintiff is definitely not hit by order 2