R.S.A. No.876 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.876 of 2009 (O&M) Decided on :10-02-2010 Jaswinder Singh .... Appellant VERSUS Dalip Singh & others .... Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER. Present:- Mr. Padam Jain, Advocate, for the appellant. Ms. R.K. Thind, Advocate, for respondent Nos.1 & 2. Ms. Madhu Dayal, Addl. A.G., Punjab, for respondent Nos.3 & 4. MAHESH GROVER, J (Oral). The plaintiff/appellant is in Regular Second Appeal against the judgments and decrees dated 22.11.2007 and 21.10.2008 passed respectively by the Additional Civil Judge (Senior Division), Sultanpur Lodhi (referred to hereinafter as `the trial Court') and the District Judge, Kapurthala (described as `the first appellate Court'), whereby the suit and the appeal of the plaintiff-appellant have been dismissed. The plaintiff/appellant has filed a suit for declaration to the effect that he is owner of the suit land and has also sought permanent injunction seeking to restrain the respondents from R.S.A. No.876 of 2009 (O&M) -2- interfering in his peaceful possession. He has pleaded that he is in possession of the suit land. Earlier, the land was possessed by Sohan Mal S/o Sh. Faggu Mal and thereafter by the appellant since 1974. He has alleged that the land was occupied forcibly and this fact was in the knowledge of the respondent Nos.1 & 2, who are claiming some right in their favour on the basis of allotment in favour of respondent Nos.3 & 4. He thus contended that he was in possession of the suit property since 1974, which is open and hostile to the respondents and therefore, he has become owner by way of adverse possession. Respondent Nos.1 & 2 pleaded that the allotment was made in their favour by respondent Nos.3 & 4 in the year 2003 and therefore, pleaded ownership and right to possession. Both the Courts returned the finding that the appellant is not the owner of the suit property, but the factum of possession was established in his favour. Learned Trial Court observed that in view of the factum of possession, the appellant could not be dispossessed except in due process of law. In appeal, the findings were affirmed. Hence, this Regular Second Appeal. Learned counsel for the appellant has contended that the findings recorded by both the Courts below are perverse and liable to be set aside. On the other hand, learned counsel for the respondents has contended that respondent Nos.1 & 2 are the true owner and R.S.A. No.876 of 2009 (O&M) -3- no suit could be filed by the appellant seeking a declaration that he has become owner by way of adverse possession. After hearing learned counsel for the parties, I am of the opinion that there is no infirmity in the findings recorded by the Courts below. The appellant was clearly barred from filing a suit for declaration seeking adverse possession because such a plea can be taken in defence. In any eventuality, the plea has been negatived by the Courts below and he has been merely held to be in possession. In such eventuality the findings that he should be dispossessed only in accordance with law, cannot be termed as erroneous. The respondents shall be at liberty to take possession of the suit property in accordance with law and in such eventuality, if the proceedings are initiated by them, the findings which have been held against the appellant, shall also be considered in the subsequent proceedings and operate against him on the principles of res judicata. Dismissed. All the miscellaneous applications are also dismissed in view of the above. 10th February, 2010. (MAHESH GROVER) Monika JUDGE