RSA No.2044 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2044 of 2008 Date of Decision: 01.02.2010. Mansa and others .……Appellants Versus Jaswant and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Jai Vir Yadav, Advocate for the appellants. Mr. Anil Ahluwalia, Advocate for respondent Nos.1 to 12. None for proforma respondent Nos.13 to 20. L. N. MITTAL, J (ORAL) By this common judgment, I am disposing of two appeals i.e RSA No.2044 of 2008 titled as Mansa and others versus Jaswant and others and RSA No.3487 of 2008 titled as Jaswant Singh and others versus Mansa and others, as both these appeals have arisen out of the same suit. Appellants and proforma respondent Nos.13 to 20 (including predecessors of some of them) filed suit against respondent Nos.1 to 12 (including predecessors of some of them) seeking declaration that the plaintiffs are owners in possession of the suit land by adverse possession. The plaintiffs also sought permanent injunction restraining the defendants from alienating the suit land and from dispossessing the plaintiffs from the suit land in any manner. The defendants contested the suit and raised various RSA No.2044 of 2008 -2- pleas including plea of res judicata. Defendant Nos.6 to 8 also raised counter-claim for possession of the suit land. Learned Additional Civil Judge (Senior Division), Kaithal vide judgment and decree dated 24.03.2006, dismissed the suit of the plaintiffs and allowed the counter-claim of defendant Nos.6 to 8 thereby granting decree for possession of the suit land in their favour. First appeal preferred by the plaintiffs has been dismissed by the learned District Judge, Kaithal vide judgment and decree dated 14.06.2008, but finding of the trial Court on issue No.3 relating to bar of res judicata has been reversed by the lower appellate Court. Feeling aggrieved, some of the plaintiffs have filed RSA No.2044 of 2008 whereas some of the defendants have filed RSA No.3487 of 2008 challenging the finding of the lower appellate Court on issue No.3 relating to res judicata. I have heard learned counsel for the parties and perused the case file. Learned counsel for the plaintiffs contended that the plaintiffs had earlier filed civil suit No.427 of 1980 claiming ownership of the suit land by adverse possession. The said suit was dismissed on 31.08.1982 by the trial Court. First appeal against the same was dismissed on 01.09.1984. Second appeal was dismissed as withdrawn on 10.07.2001. It was accordingly contended that at least from the date of filing of the said first suit, the possession of the plaintiffs became adverse and, therefore, when the instant suit, out of which these two appeals has arisen, was filed on 02.05.1998, period of more than 12 years had already lapsed. The aforesaid contention RSA No.2044 of 2008 -3- cannot be accepted. In the aforesaid first suit, the plaintiffs claimed to be occupancy tenants over the suit land for more than 150 years and also pleaded ownership by adverse possession. Consequently, it cannot be said that adverse possession of the plaintiffs had commenced with the filing of the said suit. On the other hand, the plea of being tenant and the plea of adverse possession are not tenable being mutually destructive to each other. Reference in this behalf may be made to a judgment of Delhi High Court in the case of Shri Parveen Narang versus Shri Dinesh Gulati and another, 2009(3) RCR (Civil) 818. The plaintiffs had also filed second suit for permanent injunction bearing suit No.243 of 1984 wherein the plaintiffs did not take plea of being in adverse possession, but took the plea of being occupancy tenants and in the alternative, being Gair Marusi tenants. It would again depict that the plaintiffs never continued in adverse possession for more than 12 years even if counted from the date of filing of the first suit because in the second suit filed in the year 1984, the plaintiffs did not raise the plea of being in adverse possession. On the other hand, in the second suit, they raised the plea of being tenants (occupancy or non-occupancy). Consequently the alleged adverse possession of plaintiffs never continued since the filing of the first suit in the year 1980 till the filing of the instant third suit in the year 1998. Learned counsel for the plaintiffs also contended that counter-claim made by defendant Nos.6 to 8 is barred by limitation. This contention is also without substance. Counter-claim of defendant Nos.6 to 8 for possession of the suit is based on title and RSA No.2044 of 2008 -4- in terms of Article 65 of the Limitation Act, 1963, starting point of limitation is not the date of ownership of the plaintiffs, but is the date on which the defendant's possession became adverse. In this view, I am supported by judgment of Hon'ble Supreme Court in the case of M. Durai versus Madhu and others, 2007(1) RCR (Civil) 889 and a judgment of this Court in the case of Gian Singh and others versus Atma Singh and others, 2007 (3) RCR (Civil) 737. Consequently, it cannot be said that counter-claim raised by defendant Nos.6 to 8 for possession of the suit land on the basis of title was barred by limitation because the plaintiffs have not been able to prove their adverse possession for more than 12 years. In view of the aforesaid, there is no merit in RSA No.2044 of 2008 filed by the plaintiffs. No question of law much less substantial question of law arises for determination in the said appeal. The appeal is accordingly dismissed. Insofar as RSA No. 3487 of 2008 filed by the defendants is concerned, learned counsel for the appellants in the said appeal contended that the instant suit is barred by res judicata in view of dismissal of first suit No.427 of 1980 filed by the plaintiffs claiming adverse possession. However, this plea cannot be accepted because the said suit was not adjudicated on merits, but was dismissed under Section 35-B of the Code of Civil Procedure (in short, C.P.C) for non-payment of costs. A subsequent suit can be said to be barred by res judicata under Section 11 C.P.C if the previous suit is adjudicated on merits. However, the previous suit filed by the plaintiffs was admittedly not adjudicated on merits. RSA No.2044 of 2008 -5- Accordingly, there is no infirmity in the finding of the lower Appellate Court that the instant suit is not barred by res judicata. For the reasons recorded hereinabove RSA No.3487 of 2008 is also dismissed being without merit. Both the appeals accordingly stand dismissed. ( L. N. MITTAL ) JUDGE 01.02.2010 A. Kaundal