R.S.A. No.3683 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.3683 of 2010(O&M) Date of Decision:07.07.2011 Darbara Singh and another ......Appellants Versus Sukhwinder Kaur and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.S.K.Monga, Advocate, for the appellants. **** M EHINDER S INGH S ULLAR , J.(oral) The compendium of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that the suit filed by Darbara Singh and Baljinder Singh sons of Mukhtiar Singh- appellant-plaintiffs(hereinafter to be referred as “the plaintiffs”) for a decree of declaration and injunction, on the basis of adverse possession, was dismissed by the trial Court vide impugned judgment and decree dated 31.01.2007. Not only that, the appeal filed by them was dismissed as well by the first Appellate Court vide impugned judgment and decree dated 09.02.2010. 2. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 3. After hearing the learned counsel for the plaintiffs, going through the record with his valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant appeal. 4. Ex facie, the argument of the learned counsel that since the plaintiffs are proved to be in possession, so, they became the owner of the suit property by R.S.A. No.3683 of 2010 2 way of adverse possession, is not only devoid of merit but misplaced as well. 5. As is evident from the record that the plaintiffs filed the suit for declaration/injunction, inter alia, pleading that they are in possession of the property in dispute and have become its owner by way of adverse possession. The defendants have stoutly denied their adverse possession and prayed for dismissal of the suit. 6. Now, the short and significant question, though important, that arises for determination in this case is, as to whether the plaintiffs can maintain a suit for declaration on the basis of their adverse possession or not? 7. Having regard to the contention of the learned counsel, to me, the answer must obviously be in the negative and the suit filed by the plaintiffs, on the basis of adverse possession, is not maintainable and the Courts below have rightly dismissed their suit. This matter is not res integra and is now well settled. 8. 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 in 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 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 R.S.A. No.3683 of 2010 3 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”. 9. Therefore, the legal position indicated hereinabove “mutatis- mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 10. Faced with the situation, learned counsel has fairly conceded the legal position in this relevant connection. However, he urged that since the possession of the plaintiffs over the suit property is proved, so their possession be protected. 11. What is not disputed here is that the Courts below, having scanned the relevant evidence in right perspective, have concurrently found that the suit R.S.A. No.3683 of 2010 4 filed by the plaintiffs was not maintainable. Neither any 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 appellants. Therefore, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case. 12. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. 13. Needless to mention that, the plaintiffs would not be dispossessed from the property in dispute except in due course of law. July 07, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No