RSA No.2384 of 2008 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2384 of 2008 (O&M) Date of decision: February 8, 2010. Hardyal Singh & Ors. ...Appellant(s) v. Tar Kaur & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri C.B. Goel & Shri Manoj Sharma, Advocates, for the appellant(s). Shri Atul Gaur, Advocate, for the respondents. Rakesh Kumar Garg, J. (Oral): This is defendants' appeal challenging the judgment and decrees of the courts below, whereby suit of the plaintiff-respondent for declaration that she was owner in possession of the property in dispute on the basis of adverse possession with consequential relief of permanent injunction restraining the appellants from dispossessing her forcibly, was decreed. The defendants contested the suit submitting that possession of the plaintiff-respondent was permissive. It is a matter of record that while disputing the stand of the plaintiff-respondents, defendants-appellants had also sought possession of the suit land by filing counter claim. RSA No.2384 of 2008 -: 2 :- Both the courts below decreed the suit of the plaintiff- respondents on the ground that she was owner in possession of the suit property due to adverse possession and her possession had ripened into ownership. The plea of permissive possession was declined. Consequently, the counter claim of the appellants to seek possession was declined. The appeal was admitted by this Court vide order dated 1.8.2008 on the following substantial questions of law, as raised by learned counsel appellants:- “1. Whether a decree of adverse possession can be granted regarding the permissive possession in the revenue entries shown as gair maroosi? 2. Whether a suit for declaration to declare the plaintiff owner by way of adverse possession is maintainable?” Vide order dated 21.10.2008, keeping in view the issue arising in the appeal, i.e., as to “whether the plea of adverse possession can be taken by the plaintiff to claim title of the property?”, the appeal was directed to be listed for hearing. I have heard learned counsel for the parties. Learned counsel for the appellants has vehemently argued that suit filed by the plaintiff-respondents on the plea of adverse possession itself was not maintainable in view of the judgments of this Court in Bhim Singh & Ors. v. Zile Singh & Ors., 2006(3) RCR (Civil) 97 and Devki & Ors. v. Dayawanti & Ors., 2006(3) RCR (Civil) 75 and, therefore, second substantial question of law as raised is to be answered in favour of the appellant. Learned counsel has given up the first substantial question of law RSA No.2384 of 2008 -: 3 :- as raised and has not pressed any argument on the said issue. It was also argued that on the basis of the aforesaid judgments of this Court, the suit of the plaintiff-respondent was liable to be dismissed and since the plea of adverse possession raised by the plaintiffs is to be negatived, the appellants are also liable for the grant of a decree of possession, as claimed by them in the counter claim. Shri Atul Gaur, learned counsel appearing on behalf of plaintiff-respondents has vehemently opposed the case of the appellant. However, he could not dispute the well settled proposition of law as enunciated in Bhim Singh and Dewaki's cases (supra). In view of the aforesaid, the second question is answered in favour of the appellant and it is held that suit for declaration on behalf of the plaintiff-respondents that she has become owner by way of adverse possession is not maintainable. It is also not in dispute that by taking the plea of possession in fact the plaintiff-respondents had admitted the ownership of the defendant- appellants of the property in dispute. This view of mine is fortified by the judgments of this Court in Banarsi Dass v. Neel Kanth & Ors., 2007(2) RCR (Civil) 126, Jagat Singh v. Sri Kishan Dass, 2008(2) RCR (Civil) 106 and Murti Shri Durga Bhawani (Hetuwali) Trust v. Harbhajan Singh & Anr., 1987 PLJ 555. Once that is so, the appellants are entitled to the decree of possession as claimed by them in the counter claim. Thus, the substantial question of law is answered in favour of the appellants and against the respondents. Resultantly, this appeal is allowed; impugned judgment and RSA No.2384 of 2008 -: 4 :- decrees are set aside; suit of the plaintiff-respondents is dismissed and the counter claim filed by the defendant-appellants is ordered to be decreed. However, no order as to costs. February 8, 2010. [ Rakesh Kumar Garg ] kadyan Judge