R.S.A.No.1597 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1597 of 2008 Date of Decision : 22.7.2009 Devki Nandan and others ...Appellants Versus Om Parkash and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Sachin Mittal, Advocate, for the appellants. Mr. Sanjay Viz, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby plaintiffs' suit for possession of land measuring 9 Kanals 3 Marlas, was decreed. The plaintiffs sought possession of the aforesaid land as owner. It was pleaded that earlier Parbhati predecessor-in-interest of defendant Nos.1 to 9 alongwith one Jumma filed a suit for declaration and permanent injunction against plaintiff No.1 Om Parkash. In the said suit the plea was raised that they are tenant over the said land. The said suit was decided on 16.9.1994 holding that the plaintiffs therein are in possession of the suit land, but their status is not of tenant or sub-tenants. The present plaintiffs were restrained from dispossessing the said Parbhati from the suit land without adopting the due course of law. An appeal was filed by the plaintiffs before the learned District R.S.A.No.1597 of 2008 2 Judge, which was dismissed on 19.1.1999. In the said appeal, a finding was returned that Parbhati was gair morusi. Aggrieved against the modification of the decree by the learned first Appellate Court, the present plaintiffs filed RSA bearing No.2567 of 1999. This Court on 15.2.2000 set aside the observation made by first Appellate Court in respect of the status of the present defendants as gair morusi. It was ordered that the plaintiffs can only be dispossessed according to law. It is thereafter the present suit has been filed, which has been decreed by the Courts below. In the present suit, the defendants asserted that they are in adverse possession of the suit property and issue No.8 was framed to that effect. Both the Courts have returned a concurrent finding of fact that the plaintiffs have been able to prove their ownership on the basis of voluminous evidence led by them. It was also found that since the defendants have not raised the plea of adverse possession in the previous suit, therefore, the defendants are barred from raising a plea of adverse possession in the present suit. Consequently, the suit was decreed. Learned counsel for the appellants has vehemently argued that the previous suit will not operate as res-judicata and that the findings recorded in the previous suit will not bar the defendants from raising a plea of adverse possession as the defendants have filed the previous suit claiming status of tenant or sub-tenant. Once that status is not proved, it is open to the defendants to assert adverse possession, which is required to be examined on the basis of evidence led by the parties, but not merely on the basis that in previous suit, the defendants have not raised such R.S.A.No.1597 of 2008 3 plea. In the previous suit, the defendants have raised a plea that they are tenant or sub-tenant. They have failed to prove such plea. It was held that the plaintiffs are entitled to take possession in accordance with law. Once the defendants have asserted tenancy, it is not open to the defendants to assert adverse possession. The defendants cannot approbate and reprobate. Still further, there is no evidence that on what day, the defendants asserted adverse possession against the plaintiffs. Mere possession is not adverse unless the possession is open, continuous and hostile to the knowledge of true owner. Such ingredients are not proved. In view thereof, I do not find that the findings of fact recorded by the Courts below are suffering from any patent illegality or irregularity. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 22.7.2009 (HEMANT GUPTA) Vimal JUDGE