-1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEALNo.4087 of 2006 DATE OF DECISION: 2 nd MAY, 2011 Kesar Singh & another .... Appellants Versus State of Punjab through Collector & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Rakesh Chopra, Advocate for the appellants. Mr. Vivek Chauhan, Additional Advocate General, Punjab for the respondents. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by legal representatives of Netar Singh, plaintiff No.1, since deceased, after the plaintiffs i.e. Netar Singh and Gurnek Singh (respondent No.3 herein) were successful in the trial court, but have been non-suited by the lower appellate court. Plaintiffs alleged that Naranjan Singh was in adverse possession of the suit land measuring 10 Kanals and had become its owner by its adverse possession during his lifetime. He had since died. Plaintiffs and defendants No.1 to 4 are his sons, whereas defendants No.5 to 8 are his daughters and they have inherited it. No relief has been prayed for against defendants No.1 to 8 in the suit. Defendants No.9 and 10 i.e. State of Punjab through Collector and State of Punjab through Secretary, threatened to dispossess the plaintiffs from the suit land, necessitating the filing of the instant suit for permanent -2- injunction restraining defendants No.9 and 10 from interfering in possession of plaintiffs and defendants No.1 to 4 over the suit land and from dispossessing them therefrom in any manner. Defendants were proceeded ex parte. Learned Civil Judge (Junior Division), Fatehgarh Sahib vide judgment and decree dated 20.02.1999 decreed the plaintiffs' suit for permanent injunction thereby restraining defendants No.9 and 10 from interfering in possession of plaintiffs and defendants No.1 to 8 over the suit land. However, first appeal preferred by defendants No.9 and 10 has been allowed by learned Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 04.08.2006 and thereby plaint has been rejected for want of notice under Section 80 of the Code of Civil Procedure (in short, CPC). Feeling aggrieved, legal representatives of plaintiff No.1 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that Naranjan Singh predecessor of plaintiffs and defendants No.1 to 8 became owner of the suit land by adverse possession and now plaintiffs and defendants No.1 to 8 are owners in possession thereof. Reliance has been placed on judgment of Hon'ble Supreme Court in case of Kshitish Chandra Bose Versus Commissioner of Ranchi, AIR Supreme Court 1950-210, 707(1). It was also contended that plaintiffs along with plaint had moved an application under Section 80(2) of the CPC for filing suit without service of notice under Section 80 of CPC and, therefore, in first appeal, the plaint could not be rejected for want of notice under Section 80 of CPC. -3- On the other hand, learned counsel for respondents No.1 and 2 (defendants No. 9 and 10) contended that defendants No.9 and 10 have taken possession of the suit land in due course of law. It is contended that unauthorized occupants including plaintiffs were ordered to be evicted from the suit land vide order dated 14.01.2010 passed by the Collector under the Public Premises (Eviction of Unauthorized Occupants) Act (in short, the Act) and pursuant thereto, possession of the suit land was taken on 26.03.2010 in due course of law and, therefore, plaintiffs and defendants No.1 to 8 are left with no right, title or interest in the suit land. I have carefully considered the rival contentions. On 29.11.2010, it was stated on behalf of defendants No.9 and 10 that appellants were ordered to be evicted from the suit land vide order dated 14.01.2010 passed by the Collector under the Act and pursuant thereto, possession of the suit land has been taken on 26.03.2010 in due course of law. On 29.11.2010, affidavit of Collector-cum-Deputy Commissioner, Fatehgarh Sahib to this effect was also taken on record. Thereafter many adjournments were granted to the appellants to file counter-affidavit to rebut the aforesaid subsequent development. Appellants have, however, not filed any such affidavit. Learned counsel for the appellants stated that inspite of communication, appellants have not responded. Consequently it emerges that plaintiffs and defendants No.1 to 8 have since been evicted from the suit land in due course of law and possession of the suit land has since been taken by defendants No.9 and 10 in due course of law and consequently suit for injunction filed by the plaintiffs has been rendered infructuous and no such relief can be granted to them. -4- As regards plea of plaintiffs that they and defendants No.1 to 8 have become owners of the suit land by way of adverse possession, the same cannot be accepted. Adverse possession can be taken as defence under Article 65 of the Schedule to the Limitation Act, but plaintiffs in the suit cannot claim ownership by adverse possession. This view finds support from two judgments of this court in the cases of Bhim Singh & others versus Zile Singh and other, 2006 Vol.3 Civil Court Cases 479 and Dewaki and others Versus Dayawanti and others, 2006 Vol.3 Civil Court Cases 615. In addition to it, the plaintiffs in the suit have not sought declaration that they have become owners of the suit land by adverse possession. Plaintiffs can not seek permanent injunction when plaintiffs have been evicted from the suit land in due course of law. The question of granting them injunction does not arise. For the reasons aforesaid, the appeal lacks any merit. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed, although for reasons other than those recorded by the lower appellate court. (L. N. MITTAL) JUDGE 2nd May, 2011 'raj'