IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- R.S.A. No. 1210 of 2003 Date of decision: 28.1.2008 Avtar Singh --- Appellant Versus State of Haryana and another --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Ashwani Talwar, Advocate for the appellant. Mr. Sidharath Sarup, Deputy Advocate General, Haryana for respondent no.1. Mr. G.S. Bhatia, Advocate for respondent no.2. --- AJAY KUMAR MITTAL, J. This order will dispose of two appeals, RSA Nos. 1210 and 1211 of 2003, preferred by appellant-Avtar Singh, which have arisen out of a common judgment dated 18.11.2002 rendered in two appeals, by the first appellate court. RSA No. 1210 of 2003 To know the background, a few facts of the case deserve to be mentioned:- The plaintiff filed a suit for declaration to the effect that he is exclusive owner in possession of the suit property including the construction raised thereon, comprising of Khasra No. 1054-min, situated at Panipat, and have been shown by letters ABCD in the site plan attached with the plaint. It was stated that the suit land was full of pits and it gave deserted look when the plaintiff and his father settled over it after migrating from Pakistan in the year 1948-49. The plaintiff set up a saw-mill therein in the year 1952 and also raised construction of shops, sheds and rooms over the suit property and even sales tax number of the saw mill was also taken by them in the year 1963. On the strength of the above facts, it was stated that the plaintiff had become owner of the suit property by adverse possession. It was also prayed that the respondents be also permanently restrained from interfering in the peaceful possession of the plaintiff over the suit property. Defendant no.1-Punjab Wakf Board in its written statement alleged that the Wakf Board is owner of the suit property and refuted the plea of the plaintiff that he had become owner of the suit property by adverse possession alleging that his possession over the suit property was merely four/five years old. On behalf of defendant No.2, however, it was stated that the suit land was an evacuee property and the same vested in it. The property in dispute was illegally occupied by 2 RSA No. 1210 of 2003 the fore-fathers of the plaintiff and the mutation sanctioned in favour of defendant No.1, Punjab Wakf Board was illegal and void. The trial court on appreciation of evidence, returned a finding that the plaintiff became owner of the suit property by adverse possession in the year 1975-76 itself. This finding was recorded in view of the fact that it stood proved on record by means of authenticated documentary evidence duly corroborated by oral evidence of the plaintiff and his witnesses that the plaintiff was in possession of the suit property since 1963. It was also held that the adverse possession of the plaintiff over the suit property since 1963 matured into ownership in the year 1975-76 i.e. much prior to the sanctioning of mutation no. 8631 dated 20.8.1987 in favour of defendant No.1. The suit was accordingly decreed with costs vide judgment and decree dated 7.9.1998 declaring the plaintiff to be owner of the suit land and permanently restraining the defendants from interfering in his peaceful possession over the said land. It is evident from the record that there were, in all, three parties viz., the plaintiff, the Punjab Wakf Board and the State of Haryana in the present litigation and all of them had been claiming ownership of the suit property. But as noticed above, the plaintiff filed a suit for declaration and his suit was decreed by the trial court. As a consequence thereof, the other two parties felt aggrieved and preferred two separate appeals before the District Judge. 3 RSA No. 1210 of 2003 Both appeals came to be decided by the first appellate court by a common judgment dated 18.11.2002 and this is how, the instant two appeals have arisen out of the said judgment. I have heard learned counsel for the parties and gone through the impugned judgment. It is apparent from the record that all the parties had been claiming ownership of the suit property. The plaintiff claimed ownership on the plea that he became owner by adverse possession. This plea was opposed by the Punjab Wakf Board on the ground that even if it be presumed that the plaintiff had been in possession thereof since 1948, on the basis of this wrong possession, he could not be granted a decree that he had become owner thereof. In support of plea of ownership, it was argued on behalf of the defendant-Board that it was owner of the suit property on the basis of mutation no. 8631 dated 20.8.1987 that had been sanctioned in its favour. On behalf of the State, however, it was argued that the suit property was an evacuee property and it belonged to the Union of India. It was stated that previously the fore-fathers of the plaintiff had made a request to the Financial Commissioner that the suit property be transferred in their name, but the said request was rejected and this matter was brought upto this Court and was ultimately decided against the fore-fathers of the plaintiff. The first appellate court, while accepting the submissions made on behalf of the defendants, set aside the finding of the trial court 4 RSA No. 1210 of 2003 regarding ownership of the plaintiff over the suit property in the following manner: “There is a merit in the contention of the Ld. counsel for the appellant and Ld. Govt. Pleader. Since, it is admitted by PW-2 that the Punjab Wakf Board is the owner of the suit property and the suit property is bearing Khasra No. 1054 and there is nothing on the file to show that he ever ousted the Punjab Wakf Board from the suit property, though his possession may be from 1947-48. When there is no ouster of a original owner from the suit property, the occupier of the same cannot claim title of the same by way of adverse possession. Since the Limitation Act is not applicable on the Wakf property because special statute has been made in Wakf Act under section 107 which clearly provide that the Limitation Act will not be applicable on the Wakf property. It means the Punjab Wakf Board is at liberty to file a suit for possession at any time despite of the fact that the possession of the plaintiff-respondent over the suit property may be old one. Since the plaintiff-respondent has miserably failed to show the ouster of the Punjab Wakf Board from the suit property, therefore, it cannot seek the declaration that he has become the owner of the same by way of adverse possession because in his cross- examination when he appeared as PW-2. he has stated that the suit property is owned by Punjab Wakf Board. 5 RSA No. 1210 of 2003 Therefore, the finding of the Ld. Lower Court on this issue is not sustainable. Hence, the same is hereby set aside and this issue is decided against the plaintiff-respondent and in favour of the appellant-defendants.” Learned first appellate court, however, on the basis of admission by the Wakf Board and the State of Haryana that the plaintiff was in possession over the suit property, modified the relief granted by the trial court and ordered that the appellant shall not be dispossessed from the suit property except in due course of law. Before this Court, learned counsel appearing for the appellant could not pin-point out any error of law or perversity in the findings of the first appellate court that may warrant interference by this Court in second appeal. Learned counsel for the appellant rather fairly conceded that the findings returned by the first appellate court regarding denial of relief of declaring the plaintiff as owner of the suit property was unassailable in view of the enunciations of this Court in Dewki and others v. Dayawanti and others, 2006(3) PLR 132, and Bhim Singh and others v. Zile Singh and others, 2006(3) PLR 158. In the latter judgment, it was held by a Single Judge of this Court that the plea of adverse possession could be taken by a defendant only who is in hostile, continuous and open possession to the knowledge of the true owner. In the light of this also, the finding of the first appellate court of the plaintiff having no right or title in the suit property cannot be assailed. 6 RSA No. 1210 of 2003 In view of the above, there is no merit in the appeals and the same are hereby dismissed. (AJAY KUMAR MITTAL) January 28, 2008 JUDGE *MALIK* 7