R.S.A. No. 3723 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3723 of 2008 (O&M) Date of Decision : 23.4.2009 Shri Bawa Ram .......... Appellant Versus Kuldip Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. R.P. Dhir, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 11060-C of 2008 This application under Section 151 of the Code of Civil Procedure has been moved for condoning the delay of 150 days, in re-filing the appeal. For the reasons stated in the application, C.M. is allowed, the delay of 150 days in re-filing is condoned. R.S.A. No. 3723 of 2008 This regular second appeal is directed against the judgment and decree dated 1.6.2007 passed by the learned Courts below vide which suit filed by the plaintiff / appellant seeking declaration that he was owner in possession, on the basis of adverse possession, has been ordered to be dismissed. R.S.A. No. 3723 of 2008 2 The plaintiff claimed declaration that he was owner of the property in dispute having been in its possession for the last 60 years, thus, he claimed to have perfected his title by way of adverse possession. The learned Courts below have non-suiting the plaintiff / appellant by holding that a plea of adverse possession is not a plea of assertion but only of defence. The suit filed by the plaintiff seeking declaration of title, having been perfected by way of adverse possession, was held to be not competent. The learned Courts below further held that plaintiff failed to prove, as to when he came in possession, and the date from which his possession became adverse to the true owner. The learned counsel for the appellant challenges the impugned judgment and decree by raising the following substantial question of law :- “Whether the judgment and decree passed by the learned Courts below holding that the suit was not competent for seeking declaration on the basis of adverse possession can be sustained in law ? The learned counsel for the appellant contends that the findings of the learned Courts below that the suit framed was not maintainable, cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors. 2008(4) Civil Court Cases 558 (S.C.), wherein the Hon'ble Supreme Court has been pleased to lay down as under :- “18. In Karnataka Board of Wakf v. Govt. of India, R.S.A. No. 3723 of 2008 3 2004(3) Civil Court Cases 326 (S.C.) : 2004(2) Apex Court Judgments 379 (S.C.):2004(10) SCC 779 at para 11, this court observed as under :- In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” However, it may be noticed that in the case of Hemaji Waghaji Jat Vs. Bhikhbhai Khengarbhai Harijan & Ors. (supra) the question as to, whether a suit on the basis of adverse possession is competent or not, has not been considered. This Court in the case of Kanak Ram and others Vs. Chanan Singh and others 2007(2) RCR (Civil) 213 has been pleased to lay down as under :- “3. After hearing the learned counsel for the parties at R.S.A. No. 3723 of 2008 4 some length and keeping in view the land law laid down by this Court in Bhim Singh and others v. Zile Singh and others, 2006(3) RCR (Civil) 97 (P&H), I am of the view that the suit filed by the plaintiffs claiming a declaration that they have become the owners of the suit land by way of adverse possession is not maintainable. In these circumstances the regular second appeal filed by the plaintiffs challenging the judgment and decree of the two Courts is also without any merit. 4. At this stage, it may be noticed that Sh. Arun Palli, learned counsel for the plaintiffs / appellants has contended that since the plaintiffs were shown to be in settled possession of the suit land for time immemorial, therefore, they had become the owners of the suit land by way of adverse possession.” In view of the pronouncements by this Court the substantial question of law framed is answered against the appellant / plaintiff and the appeal is ordered to be dismissed in limine. 23.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE