RSA No.4132 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4132 of 2010 Date of Decision: 03.12.2010. Kewal Singh and another .....Appellants Versus State of Punjab and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Satpreet Grewal Kapila, Advocate for the appellants. L. N. MITTAL, J (ORAL) Plaintiffs-Kewal Singh and Gurmail Singh both brothers, having failed in both the Courts below, have filed the instant second appeal. Plaintiffs alleged that they are owners of the suit land measuring 18 kanals 6 marlas including construction existing therein. Plaintiffs alleged that possession of plaintiffs and their forefathers over the suit land has been recorded for more than 100 years. Plaintiffs have been in adverse possession of the suit land and have perfected title thereon by adverse possession. Defendants (State of Punjab and its officers) filed ejectment petition against the plaintiffs under the Punjab Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Collector allowed the said application vide order dated 31.05.1983. Appeal preferred by the plaintiffs against the said order was dismissed by the Commissioner on 19.06.1984. When the officials of the defendants came to take possession of the suit land on the basis of said orders, the plaintiffs declared RSA No.4132 of 2010 -2- themselves to be owners in possession of the suit land. Defendants have no right, title or interest therein. Accordingly, the plaintiffs sought declaration that they are owners of the suit property on account of adverse possession. Plaintiffs also sought permanent injunction. Defendants did not contest the suit and were proceeded ex parte. Learned Additional Civil Judge (Senior Division), Phagwara vide judgment and decree dated 29.07.2009 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Kapurthala vide judgment and decree dated 06.09.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that the plaintiffs/appellants being in adverse possession of the suit land as depicted in Revenue record since 1978-79 produced in evidence have perfected their title over the suit property and become its owners. The contention cannot be accepted because possession of plaintiffs' father over the suit land was depicted to be as tenant in jamabandi for 1978-79 whereas Provincial Government has been recorded to be owner thereof. In next jamabandi for 1983-84, plaintiffs and their brothers were recorded to be in possession of the suit land as tenants whereas Provincial Government continued to be recorded as owner thereof. However, in jamabandi for 2003-04, Provincial Government is recorded to be owner as well as in RSA No.4132 of 2010 -3- possession of the suit land. Entry to the same effect exists in khasra girdawari since kharif 2004 to Rabi 2005. It would thus emerge that plaintiffs were not even in possession of the suit land at the time of filing of the suit. Last jamabandi and khasra girdawari, preceding the filing of the suit, depicted not only ownership, but also possession of defendant No.1 over the suit land. Consequently, the question of the plaintiffs becoming owners of the suit land by adverse possession did not arise. In addition to the aforesaid, possession of plaintiffs' father over the suit land was recorded to be as tenant. Consequently possession of plaintiffs being successors of their father cannot be termed to be adverse, but was permissive. There is no cogent evidence on record to depict as to when the possession of the plaintiffs turned adverse. Moreover, ejectment petition was filed against the plaintiffs and the same was allowed. For this reason as well, it cannot be said that plaintiffs' possession has ripened into title. Their possession did not remain unchallenged. It may also be added that limitation period for filing of suit by State of Punjab would be 30 years. Evidence on record depicts possession of the plaintiffs' father and subsequent thereto of the plaintiffs since 1978-79 only and the instant suit was filed on 17.04.2006 i.e before expiry of period of 30 years. For this reason also, the plaintiffs could not be said to have acquired ownership over the suit land by alleged adverse possession. Learned counsel for the appellants has relied on judgment of this Court in the case of Jagan Singh and others versus Chatin Kaur, 1986 PLJ 142. In that case, revenue entries RSA No.4132 of 2010 -4- depicted possession as Giar Marusi without payment of rent. On the basis of entire evidence on record in that case, possession of plaintiffs in that case was held to be adverse. In the instant case, however, evidence led by the plaintiffs does not depict their possession to be adverse. Reliance has also been placed on judgment of this Court in the case of Jai Singh versus Mehar Singh and others, 1995(3) PLR 349. It was held therein that mere non- payment of rent for a long period does not establish the complete ouster of the owner so as to constitute adverse possession of the tenant. This observation in the judgment would go against the appellants in the instant case. It was also observed in the case of Jai Singh (supra) that where the tenant has denied the title of the owner in the litigation long back and was not paying rent and no effort was made by the owner to enforce his right in the property, it would prove the factum of adverse possession. In the instant case, however, admittedly the defendants enforced their right in the suit property by filing eviction petition against the plaintiffs. Moreover, there is no evidence on record to depict as to when the plaintiffs denied the title of the defendants. Consequently, in the instant case, plaintiffs' possession could not be said to be adverse. Judgment in the case of Jai Singh (supra) is completely distinguishable on facts. Both the Courts below have arrived at concurrent finding against the appellants. The said finding is based on proper appreciation of evidence and is supported by cogent reasons. In addition to the aforesaid, suit seeking declaration that plaintiffs have become owners of the suit property by adverse possession, is not maintainable because plea of adverse possession can be used as RSA No.4132 of 2010 -5- shield in defence by the defendants and cannot be used as weapon of offence by the plaintiffs. In this view, I am supported by two judgments of this Court namely 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. According to law laid down in these judgments, plaintiff cannot seek declaration that he has become owner of the suit property by adverse possession. Consequently for this reason also, the appellants cannot succeed. For the reasons aforesaid, I find no merit in the instant second appeal. 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. 03.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE