R.S.A. No.3045 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3045 of 2009 Date of Decision:13.07.2011 Jagmail Kaur Dhill and others ......Appellants Versus Avtar Singh and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Kanwaljit Singh, Senior Advocate, with Mr.Harmanjit Singh, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J.(oral) The crux of the facts, culminating in the commencement, relevant for disposal of the present appeal and emitting from the record are, that original plaintiff Gurnam Singh son of Jai Singh (since deceased)(now being represented through his LRs)-appellants(hereinafter to be referred as “the original plaintiff”) filed the suit for a decree of declaration to the effect that he became the owner of the disputed land by way of adverse possession, against Avtar Singh son of Jarra Singh and others-respondent-defendants(for brevity “the defendants”). The original plaintiff did not produce any documentary evidence, except his bald statement. The trial Court dismissed the suit for want of cogent evidence and not being maintainable, by virtue of impugned judgment and decree dated 07.11.2006. 2. Aggrieved by the decision of the trial Court, the plaintiffs filed the appeal, which was dismissed as well by the first Appellate Court, by way of impugned judgment and decree dated 15.01.2009. 3. The appellants-LRs of original-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the R.S.A. No.3045 of 2009 2 present regular second appeal. 4. After hearing the learned counsel for the appellants, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this respect. 5. Ex facie, the argument of the learned counsel that, the trial Court did not grant adequate opportunity to the original plaintiff, to produce the evidence and since, the suit was maintainable, so, the Courts below committed a legal mistake in dismissing his(plaintiff) suit, lacks merit. 6. As is evident from the record that, the trial Court granted sufficient opportunities to the plaintiff to produce the evidence, but he failed to do so, despite adequate opportunities and his evidence was closed by the order of the Court. The prayer for adducing additional evidence was also declined by the trial Court. So much so, the revision petition filed by him in this respect, was dismissed as well by this Court. 7. On ultimate analysis of the evidence produced on record by the parties and the legal position, the trial Court concluded that the original plaintiff miserably failed to substantiate his plea of adverse possession and dismissed his suit. 8. Not only that, the decision of the trial Court was upheld by the first Appellate Court, by means of impugned judgment and decree dated 15.01.2009, the operative part of which is, as follows:- “I have carefully considered this contention advanced by learned counsel for the appellant but find no merit in it. The plaintiff was granted sufficient opportunities by the lower court to lead his evidence. Consequently, when plaintiff failed to conclude his evidence, the evidence was closed by order by learned trial Court. Thereafter, plaintiff moved an application for leading additional evidence, which was also dismissed by learned trial Court. The revision preferred against the said order was also dismissed by Hon'ble High Court as mentioned in the judgment itself. There is no reliable evidence on record to prove that plaintiff has become owner of the suit land by way of adverse possession. Only PW1 Gurnam Singh plaintiff R.S.A. No.3045 of 2009 3 has stated so. Statement of PW2 Harnek Singh was recorded partly and his cross-examination was deferred but thereafter he never appeared. The plaintiff has not tendered into evidence any jamabandi or khasra girdawari to show that he was recorded to be in possession of the land in dispute at any time. Moreover, the plaintiff is seeking declaration regarding his title on the basis of adverse possession which is not legally permissible. This plea can only be taken by the defendant as a defence.” 9. Such, thus, being the position on record, now the short and significant question, though important, that arises for determination in this case is, as to whether the plaintiff can maintain a suit for declaration on the basis of his adverse possession or not? 10. Having regard to the contention of the learned counsel and legal position, to me, the answer must obviously be in the negative, as the suit filed by the original plaintiff, on the basis of adverse possession, is not maintainable and the Courts below have rightly dismissed his suit in this context. This matter is not res integra and is now well settled. 11. An identical question came to be decided by this Court in case Babu Singh and others Versus State of Punjab and others, (2011-1) PLR 365. Having relied upon the judgments of the Hon'ble Apex Court in cases P.T.Munichikkanna Reddy and others Versus Revamma and others, (2007) 6 SCC 59, Annakili Versus A.Vedenayagam, 14(2007) 14 SCC 308 and Mandal Revenue Officer Versus Goundla Venkaiah and another, (2010) 2 Supreme Court Cases 461, it was ruled ( paras 17 and 18), as under:- “17. It is not a matter of dispute that neither there is any statutory provisions under the Transfer of Property Act, nor any other statute, or relevant positive legal provisions, conferring any proprietary rights or ownership of the property on any person by virtue of adverse possession as such. It pre-supposes and based on the speculative intent of a person on account of default of true owner being not in possession of the property. That means, the right of adverse possession is a piratical right, mainly, based on (i) speculative and negative theory of default, (ii) wishful presumption that the owner has abandoned the property to the adverse R.S.A. No.3045 of 2009 4 possessor and (iii) that the true owner has not claimed the possession from the opposite side within a period of limitation, prescribed under Articles 64 and 65 of the Limitation Act, as the case may be and nothing else. It lacks any statutory recognition in this behalf. Considering the concept of adverse possession, the Hon'ble Apex Court in case Hemaji Waghaji Jat Versus Bhikhabhai Khengarbhai Harijan, 2008(4) RCR (Civil) 401, has observed that “the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. 18. Such, thus, being the legal position and in the absence of any statutory/recognition/provisions, authorising the plaintiffs to claim ownership by way of adverse possession, to me, the plea of adverse possession cannot possibly be used as a sword (weapon of attack) by the plaintiffs. It can only be pleaded as a shield of defence by the defendants to protect their possession. Meaning thereby, the plaintiffs cannot claim their ownership in the property in dispute by way of adverse possession, in the plaint, though the parties in possession, may plead it as a defence in the written statement only for a limited purpose to protect their possession after expiry of the statutory period of limitation in this relevant connection and not otherwise. Reliance in this regard can well be placed on a judgment of this Court in case titled as Bhim Singh and others Versus Zile Singh and others, 2006(3) RCR(Civil) 97”. 12. Therefore, to me, the Courts below, having applied the legal provision in the right perspective, correctly dismissed the suit of the original plaintiff. Thus, the contrary arguments of the learned counsel for the appellants “stricto-sensu” deserve to be and are hereby repelled under the present set of circumstances and the law laid down in the aforesaid judgments “mutatis-mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 13. Meaning thereby, the trial Court has rightly held that the suit for R.S.A. No.3045 of 2009 5 declaration filed by the plaintiff on the basis of adverse possession, is not maintainable. Neither any other question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has been urged or pressed by the learned counsel for the appellant. Thus, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case 14. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 13, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No