R.S.A.No.2159 of 2003 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.2159 of 2003 (O&M) Date of decision: 11.9.2009 Gonda Ram ......Appellant Versus Avtar Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Anupam Gupta, Advocate, for the appellant. Mr.Sanjay Majithia, Senior Advocate with Mr.Shailender Sharma, Advocate and Mr.Jashanpreet Singh, Advocate, for the respondent. **** SABINA, J. Plaintiff Gonda Ram filed a suit for declaration and permanent injunction, which was decreed by the Civil Judge (Sr.Divn.), Hoshiarpur vide judgment and decree dated 21.10.2000. In appeal, the said judgment and decree were set aside by the Additional District Judge, Hoshiarpur vide judgment and decree dated 4.12.2002 holding the possession of the plaintiff only as a co- sharer+. Thus, the suit of the plaintiff was dismissed. Hence, the R.S.A.No.2159 of 2003 (O&M) 2 present appeal by the plaintiff. Brief facts of the case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, are as under:- “2. The facts as put forth by the plaintiff are that the defendant is recorded as owner to the extent of 301/365 shares in the revenue record and the plaintiff is recorded to be owner to the extent of 60 shares of the land. The entire land is in possession of the plaintiff. The land falling to the share of the defendant was earlier is in occupation of the plaintiff as tenant and in the year 1972, defendant filed an application for ejectment of the plaintiff from the suit land which was allowed by Shri RD Sayal, the then, A.C.Ist grade, Hoshiarpur vide order dated 8.3.1972. With the aforesaid ejectment order, the tenancy of the plaintiff was determined and the possession of the plaintiff qua the land of the defendant became that of a trespasser. The defendant did not execute the ejectment order nor the possession was delivered by the plaintiff. Since 8.3.1972, the plaintiff is continuing in possession of the suit property and his possession has been peaceful, uninterrupted, continuos and adverse to the defendant. The possession of the plaintiff has matured into ownership by way of adverse possession. R.S.A.No.2159 of 2003 (O&M) 3 3. In pursuance of the notice of the suit, the defendant appeared and through written statement preliminary objections have been raised to the effect that the plaintiff has not approached the court with clean hand and has suppressed the real facts from the court. The plaintiff has no right to defeat the right of the real owner. Defendant is in possession of the suit property since 9.1.1973 without interruption. On merits, it has been alleged that the defendant is in possession to the extent of 301/365 shares in the suit property. The ejectment order had been passed on 8.3.1972 and thereafter Dakhal Kabza was taken by the defendant on 9.1.1973 in the presence of the revenue officials. This fact was also recorded in the Roznamcha. The defendant is in actual cultivating possession of the suit property. Other allegations raised by the plaintiff have been controverted.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner in possession of the suit property? OPP 2. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration that he was R.S.A.No.2159 of 2003 (O&M) 4 owner in possession of the suit land on the basis of adverse possession. The case of the plaintiff is that earlier he was a tenant over the property in dispute. An ejectment order was passed by A.C. Ist grade, Hoshiarpur on 8.3.1972 against the plaintiff. However, the said order was never got implemented and hence, the plaintiff became owner of the suit property on the basis of adverse possession. The possession of the plaintiff had remained peaceful, uninterrupted, continuos and adverse to the knowledge of the defendant. It has been held by this Court in Bhim Singh and others v. Zile Singh and others 2006(3) Civil Court Cases 479 (P&H) in para Nos. 11,12 and 13 as under:- “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 R.S.A.No.2159 of 2003 (O&M) 5 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 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: R.S.A.No.2159 of 2003 (O&M) 6 “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 ion 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 declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession.” Since the suit of the plaintiff was not legally maintainable, no declaration could have been granted in his favour. In these circumstances, no ground for interference in the impugned judgment and decree is made out. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 11, 2009 anita