RSA No. 1368 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1368 of 1987 Date of Decision: 25.03.2011. Shamboo Dayal .......Appellant Vs. Mangat and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Amit Jain, Advocate for the appellant. Mr. Amit Jain, Advocate for the respondents. ..... SABINA, J. Plaintiff had filed a suit for declaration and permanent injunction alleging that he was owner in possession of the suit property. The pedigree table, as reproduced in Para No.1 of the plaint, is as under:- Thana Udai Ram Ram Sukh Sadasukh Ram Gopal Bhagwana Shambaksh Zanqi Singh (Died childless) Sheo Narain Ghasitoo (Died childless) Shambhu Dayal (Plaintiff) RSA No. 1368 of 1987 -2- Ghasitoo died issueless. 2/3rd share of deceased Ghasitoo had come to the share of Zanqi Singh and sons of Udai Ram. By mistake, 1/3rd share was mutated in the name of Tota. Tota was not collateral of Ghasitoo and never took the possession of 1/3rd share of the suit property. The descendants of Sada Sukh, Ram Baksh and Udai Ram were in exclusive possession of the suit property. Ram Dhan s/o Tota died about 26 years ago and Kanhiya s/o Tota was missing for the last about 40 years. Defendants had no concern with the suit property. Defendants, in their written statement, denied the contentions in the plaint. It was averred that Ghasitoo had died and Tota was one of the heirs of Ghasitoo. Jangi and Udai Ram were not entitled to inherit the property of Ghasitoo. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owners of the suit land detailed in para No.1 of the plaint? OPP 2. Whether Tota son of Moti was an heir of Ghasita? OPD 3. Whether the defendants have got a share in the suit land and by virtue of that they become a co- sharer as alleged? OPD 4. If issue No.2 and 3 are proved, whether the Tota Ram son of Moti and defendants have lost their rights in the suit land by their long abandonment and adverse possession of the plaintiff? OPD 5. Whether the plaintiff is estopped from filing the suit land from his act and conduct? OPD RSA No. 1368 of 1987 -3- 6. Whether the suit is barred by limitation? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Relief.” Vide judgment and decree dated 27.3.1985, Sub Judge Ist Class dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed by District Judge vide judgment and decree dated 26.11.1986. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the plaintiff had become owner of the suit property by way of adverse possession. Defendants had never been in possession of the suit property. In support of his arguments, learned counsel for the appellant has placed reliance on Des Raj & Others versus Bhagat Ram (Dead) by Lrs. and others 2007(2) RCR (Civil) 581, wherein it was held has under:- “Express denial of title was made by the plaintiff- respondent in the said suit in his written statements. The courts, therefore, in the suits filed by defendants-appellants, were required to determine the issue as to whether the plaintiff-respondent had successfully ousted the defendants-appellants so as to claim title himself by ouster of his co-owners.” Learned counsel for the respondents has submitted that the plea of adverse possession was available only as a defence and a suit could not be filed by a person, claiming that he had become owner of the suit property by way of adverse RSA No. 1368 of 1987 -4- possession. In support of his arguments, learned counsel for the respondents has placed reliance on Jeet Singh (since deceased) through L.Rs versus Molu Ram (since deceased) through L.Rs, 2010(2) RCR (Civil) 650, wherein it was held as under:- “In the light of the above discussion and the law laid down in the above mentioned judgments, the question of law which arise for determination in this appeal are as under:- 1. Whether the plea of adverse possession can be raised by filing a suit for declaration by a person, who pleads uninterrupted possession? 2. Whether the mere non-payment of rent would put to an end to the relationship of landlord and tenant so as to assert hostile possession in favour of a person, who claims adverse possession? 3. Whether the plea of adverse possession can be accepted in the absence of the particulars regarding the possession becoming upon and hostile to the true owner or not? For the reasons which have been stated in the foregoing paragraphs, I hold that the plea of adverse possession is available only as a defence and in the absence of particulars regarding it becoming hostile and open, such a plea cannot be answered and RSA No. 1368 of 1987 -5- further the plea of ownership and adverse possession cannot co-exist with each other and further that the mere non-payment of rent will not put an end to the relationship of landlord and tenant so as to declare the possession to be open and hostile to the true owner.” Similar view was taken in Smt. Mohinder Kaur and another versus Teja Singh and others, 2010(2) R.C.R. (Civil) 779. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. In Bhim Singh and others vs. Zile Singh and others 2006 (3) RCR (Civil) 97, it was held as under:- “10. At this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows : Description of suit Period of limitation Time from which period begins to run Article 64 For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession. RSA No. 1368 of 1987 -6- Article 65 For possession of immovable or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff. Explanation - For the purpose of this Article - (a) Where the suit is by a remainder-man, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainder-man, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; RSA No. 1368 of 1987 -7- (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. 11. Under Article 64 of the Limitation Act, a suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of RSA No. 1368 of 1987 -8- adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned "when the possession of the defendant becomes adverse to the plaintiff". Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession. 12. I am supported by a judgment of Delhi High Court in 1993(3) Punjab Law Reporter (Delhi Section) 70 (Prem Nath Wadhawan v. Inder Rai Wadhawan). 13. The following observations made in the Prem Nath Wadhawan's case (supra) may be noticed : "I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. I do not find any merit in the contention of the learned counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief for RSA No. 1368 of 1987 -9- declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession." 14. At this stage, it may also be relevant to notice the relevant portion of paras 134 and 135 of the 3rd report of Law Commission of India as follows : If the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example : If A, B and C are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, though the last trespasser C was not in possession except for a short period." "In our opinion, article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover RSA No. 1368 of 1987 -10- possession from another trespasser. The plaintiff's prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner's entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession." RSA No. 1368 of 1987 -11- 15. Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title.” In the judgment relied upon by learned counsel for the appellant in Des Raj's case (supra), the point in controversy was not specifically in issue as to whether the plaintiff could file the suit basing claim on adverse possession, whereas the point that whether a suit can be filed basing claim on adverse possession was specifically in issue in Bhim Singh's case (supra) and the judgment relied upon by learned counsel for the respondents, wherein it has been specifically held that a person cannot file a suit basing claim on adverse possession and the plea of adverse possession can only be taken in defence. Before the learned first appellate court also, the only point urged was that the plaintiff had become owner of the suit property, by way RSA No. 1368 of 1987 -12- of adverse possession. Since, the plaintiff could not maintain a suit claiming ownership by way of adverse possession, the courts below had rightly dismissed the suit of the plaintiff. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE March 25, 2011 Gurpreet