RSA No.1011 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1011 of 2009 (O&M) Date of Decision: November 03, 2009 Deeg Ram and Others ...........Appellants Versus Ram Chander @ Het Ram and Others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Ajay Jain,Advocate for the appellants. ** Sabina, J. Plaintiffs filed a suit for declaration. The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Mahendergarh vide judgment and decree dated 5.8.2005. Aggrieved by the same, the plaintiffs preferred an appeal and the same was dismissed by the Additional District Judge, Narnaul vide judgment and decree dated 5.12.2008 Hence, the present appeal by the plaintiffs. The facts of the case, as noticed by the Additional District Judge in paras 2 to 4 of its judgment, read as under:- “ 2. Briefly, stated case of the plaintiffs is that Ram Chander @ Het Ram, defendant No.1 is recorded as owner of land measuring 68 kanals 14 marlas comprised in rect. No. 34, khewat No.26 as per jamabandi for the year 1993-94 situated in revenue estate of RSA No.1011 of 2009 (O&M) 2 village Ushmapur, Tehsil and District Mahendergarh (hereinafter referred as the suit land) and plaintiffs are shown in possession thereof. Whereas predecessors-in-interest of defendant No.1 left village Ushmapur, Tehsil and District Mahendergarh and permanently settled at Dhani Kumharan Tehsil Hansi, District Hisar about 100 years ago. They abandoned and relinquished their rights in the suit land towards predecessors-in-interest of the plaintiffs. In this way, predecessors-in-interest of the plaintiffs took over possession of the suit land about 100 years ago. Since then they are coming in possession of the suit land. Their possession over the suit land is open and hostile and they have become owners in possession of the suit land by way of adverse possession. But in the revenue record defendant No.1 and his predecessors-in-interest are shown owners of the suit land. Hence, the revenue entries showing the defendant No.1 owner of the suit land are wrong, illegal, against law and facts. The plaintiffs have become owners in possession of the suit land. So, the revenue entries are liable to be corrected in favour of the plaintiffs. It is further asserted that defendant No.1 vide registered sale deed No.1031 dated 11.6.1999 sold land measuring 43 kanals 15 marlas out of the total suit land measuring 68 kanals 14 marlas to defendants No. 2 and 3 without any right, title or interest. The impugned sale is not binding on the rights of the plaintiffs. The defendants No. 2 and 3 did not acquire any right title or interest in the suit land by the impugned sale. Hence, the RSA No.1011 of 2009 (O&M) 3 impugned sale is liable to be set aside, ignored and cancelled. The plaintiffs several times asked the defendants to admit them owners in possession of the suit land get the impugned sale deed No.1031 dated 11.6.1999 set aside and also get the revenue entries corrected in their favour. But they are adamant. Hence, the suit for decree for declaration to the effect that the impugned sale deed No.1031 dated 11.6.1999 is illegal null and void against facts and law liable to be cancelled set aside and ignored. Accordingly, the revenue record showing the defendants owners of the suit land is also illegal, null and void against law and facts. Hence, liable to be corrected in favour of the plaintiffs. 3. The defendants filed joint written statement while admitting that Mangla, Lalji,Tuhi Ram, Har Lal, Teja, Nanga, Sheoji and Jaila predecessors-in-interest of the defendant No.1 left village Ushmapur Tehsil and District Mahendergrah and settled permanently in Tehsil Hansi, District Hisar. They gave their total land measuring 208 bighas situated in village Ushmapur, Tehsil and District Mahendergarh for management and cultivation to Babar, Gahar, Bhuru Ram Jee Ram and Jalim co- sharers. But predecessors-in-interest of the defendant No.1 frequently used to visit village Ushmapur in connection with management and control of the suit land and attend marriage parties. They never relinquished their ownership rights in favour of any person including predecessors-in-interest of the plaintiffs. They continued asserting their ownership over the suit land. It is asserted that Mangal Ram died in1961 B.K. And mutation No.7 RSA No.1011 of 2009 (O&M) 4 dated 22 Baishakh 1968 B.K. was entered in favour of his son Pat Ram. Said Pat Ram also died in 1988 B.K. and mutation No.79 dated 12 Baishakh 1991 B.K. was entered and sanctioned in favour of Ram Chander @ Het Ram defendant No.1. The predecessors-in-interest of the defendant No.1 and defendant No.1 had full faith in predecessors-in-interest of the plaintiffs,therefore, they did not get executed any writing about management and control of the suit land. They continued in possession of the suit land as licencees. Therefore, defendant No.1 and his predecessors-in-interest are rightly shown owners of the suit land and plaintiffs are shown in possession thereof. But the licence of the plaintiffs and their predecessors-in-interest was cancelled. The defendant No.1 has become owner in possession of the suit land who sold land measuring 43 kanals 15 marlas to defendants No.2 and 3 vide registered sale deed No.1031 dated 11.6.1999 for valuable consideration and handed over possession to them. So, defendants No. 2 and 3 are coming owners in possession of the land measuring 43 kanals 15 marlas in the total suit land measuring 68 kanals 14 marlas. The plaintiffs are not entitled for any declaration and prayed for dismissal of the suit. The defendants also raised legal objections of locus-standi, maintainability, limitation, misjoinder and non-joinder of necessary parties, cause of action and the suit is false and frivolous. So, liable to be dismissed with special costs and conce again prayed for dismissal of the suit with special costs. 4. Plaintiffs filed replication to the written statement of the RSA No.1011 of 2009 (O&M) 5 defendants while controverting stand of the defendants and reiterated their own stand taken in the plaint. On the pleadings of the parties, the following issues were framed:- “1.Whether the plaintiffs are owners in possession of the suit land and the sale deed dated 11.6.1999 is null and void on the ground mentioned in the plaint?OPP 2.If issue No.1 is not proved whether the plaintiffs have become owners by way of adverse possession as alleged?OPP 3.Whether the suit of the plaintiffs is time barred?OPD 4. Whether the plaintiffs have no locus standi to file the present suit ?OPD 5.Whether the suit is not maintainable ?OPD 6.Whether the suit is liable to be stayed under Section 10 CPC?OPD 7.Whether the defendants are entitled for special costs u/s 35A CPC?OPD 8. Relief.” After hearing the learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. In the present case, the plaintiffs had filed a suit for declaration that they had become owner in possession of the suit land on the basis of adverse possession. It is a settled proposition of law that adverse possession can be taken as defence but a suit basing claim on the basis of adverse possession is not maintainable. It has been held by this Court in Bhim Singh and othersv. RSA No.1011 of 2009 (O&M) 6 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 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 RSA No.1011 of 2009 (O&M) 7 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: “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 plaintiffs was not legally maintainable, no declaration could have been granted in their favour. In these circumstances, no ground for interference in the impugned judgment and RSA No.1011 of 2009 (O&M) 8 decree is made out. No substantial question of law arises in this regular second appeal which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 03, 2009 arya