RSA No.3677 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** RSA No.3677 of 2009 Date of decision : 14.3.2011 Safia ........Appellant Vs. Maharaji Begum and others .........Respondents CORAM : HON'BLE MR.JUSTICE L.N.MITTAL : Present:- Mr.Sudhir Aggarwal, Advocate, for the appellant Mr.Satish Chaudhary, Advocate, for respondent No.1 --- L.N.MITTAL, J (Oral) : Defendant No.3 Safia, who remained unsuccessful in both the Courts below in her counter claim, has filed the instant second appeal. Suit was filed by respondent No.1/plaintiff/Maharaji Begum for separate possession of her half share in the suit property by partition thereof by metes and bounds alleging that the plaintiff purchased half share in the suit property from defendant No.1/respondent No.2 vide sale deed dated 17.5.2002. It was alleged that defendants No.2(i) to 2(iii)/respondents No.3 to 5 had the other half share in the suit property. Defendant No.3 has no right, title or interest in the suit property. Defendant No.1 admitted the claim of the plaintiff. Defendant No.2 was given up in the trial Court. Defendant No.3 contested the suit and claimed to be in possession of the suit property since the time of her father. Defendant No.3 also made counter claim that she had become owner of the suit property by adverse possession. RSA No.3677 of 2009 -2- Learned Additional Civil Judge (Senior Division), Nuh vide judgment and decree dated 24.5.2008 partly decreed the plaintiff's suit for possession of the suit property by partition and passed preliminary decree of partition holding plaintiff and defendants No.2(i) to 2(iii) to be co-sharers to the extent of half share each. Counter claim filed by defendant No.3 was dismissed. First appeal preferred by defendant No.3 has been partly allowed by learned Additional District Judge, Nuh vide judgment and decree dated 30.4.2009 and thereby suit filed by the plaintiff stands dismissed and at the same time, counter claim filed by defendant No.3 also remained dismissed. Feeling aggrieved, defendant No.3 has filed the instant second appeal. I have heard counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that appellant- defendant No.3 has become owner of the property by adverse possession, as proved by her evidence. The contention cannot be accepted. Electricity connection was obtained by the appellant in the suit property in the year 1991 whereas the instant suit was filed in the year 2002. Consequently, assuming for the sake of argument only that the appellant is in possession since when she obtained electricity connection in the suit property, even then she had not completed the requisite period of twelve years when the instant suit was filed and consequently the appellant could not have become owner of the suit property by adverse possession. In addition to it, counter claim is just like a suit. However, a person in adverse possession cannot file suit to seek declaration that he has become owner of the suit property by adverse possession because adverse possession can be set up as defence only. In this view, I am supported by two judgments of this Court in the cases of 'Bhim Singh and others v. Zile Singh and others, 2006(3) CCC 479 RSA No.3677 of 2009 -3- (P & H)' and 'Dewaki and others v. Dayawant and others, 2006(3) CCC 615 (P & H)'. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Concurrent finding recorded by the Courts below, dismissing the counter claim of defendant No.3-appellant, does not warrant interference in second appeal as it is not shown to be perverse or illegal nor it is based on mis-reading or mis-appreciation of evidence. Consequently, the appeal is hereby dismissed. (L.N.MITTAL) JUDGE 14.3.2011 akm