RSA No. 2376 of 2004 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on January 14,2010. Smt. Mohinder Kaur and another -- Appellant vs. Teja Singh and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sanjeev Pandit,Advocate, for the appellants Ms.Kamalpreet Kaur,Advocate,for respondent Nos. 1 and 2. Rakesh Kumar Jain J:(Oral) The plaintiffs are in second appeal in a suit filed for declaration to the effect that they are owners of land measuring 117 square yards shown as ABCD in the site plan attached with the plaint adjoining the house of the plaintiffs situated in khasra No.109, towards south of village Haripur, Tehsil and District Panchkula, as per mutation No 676, dated 30.7.1991, claiming themselves to be in adverse possession. Along-with the suit, an application under order 39 Rules 1 and 2 read with Section 151 of C.P.C. was also filed. On entering appearance, the defendants filed their written statement denying the averments of the plaint and claimed themselves to RSA No. 2376 of 2004 2 be the owners of the suit property on the basis of the sale deed. The plaintiffs filed replication to the written statement and on the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are the owners of the suit property by way of adverse possession ? OPP 2. Whether defendants No. 1 and 2 forcibly dispossessed the plaintiff from the portion CDEF on 17.7.1995. If so what effect ? OPP 3. Whether plaintiffs are in possession over vacant portion ABEF ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the plaintiffs are estopped from filing the suit by their act and conduct ? OPD 6. Whether plaintiffs have no cause of action to file the suit ? OPD 7. Whether proper court fees has not been affixed ? OPD 8. Relief: During the pendency of the suit, application for temporary injunction was dismissed by the trial Court vide its order dated 27.3.1998, in which it was observed that the defendants have placed on file photo copy of the sale deed dated 26.5.1989 vide which they had purchased the suit property and its dimensions show that the house of Ishar Singh exists on the northern side, phirni on the eastern side, house of Mangi on the southern side and street on the western side. Electricity connection is also existing in the name of defendant Nos.1 and 2 as defendant No.4 has denied having shifted the electric connection. Sewerage and water connection have also RSA No. 2376 of 2004 3 been provided by HUDA since long whose photo copy has been placed on file and defendant Nos.1 and 2 are established to be in possession over the suit property prior to alleged date of dispossession. Thus, the plaintiffs have no prima facie case in their favour. During the course of hearing, the plaintiffs did not lead any evidence as a result of which, evidence was closed under Order 17 Rule 3 C.P.C. and the trial Court dismissed the suit against which the plaintiffs filed an appeal in which it was alleged that the order was passed on 21.7.2001 whereas the Presiding Officer was on leave and had taken up the matter on 20.7.2001 and had adjourned it to 15.9.2001. So, the case was not adjourned on the request of the appellants but it was adjourned because the Presiding Officer was to proceed on leave. Therefore, the provision of Order 17 Rule 3 C.P.C. could not have been made applicable to the case in hand. It was also submitted that the Court below had acted in a undue haste in closing the evidence of the appellants because on 15.9.2001, a request was made on behalf of the appellants that appellant No.1. had met with an accident and because of the injuries she could not come to the Court for giving evidence, but the Court below without referring to the said request closed the evidence of the appellants. The learned lower Appellate Court has found that issues were framed on 27.3.1998. The appellants/plaintiffs were given six opportunities to lead evidence but they failed to produce any evidence. No evidence was present on 17.7.1998 for which costs of Rs.100/- was imposed. Still, there was no evidence on 12.10.1999 and a cost of Rs.150/- was again imposed. Then on 14.3.2000 again no evidence was present and last opportunity was granted to the appellants for the same RSA No. 2376 of 2004 4 purpose. Then again on 13.6.2000 no evidence was present and a last opportunity was given. Once again on 16.8.2000 no evidence was present and again last opportunity was given. On 15.9.2001 when the appellants/plaintiffs failed to produce any evidence, the Court closed the evidence under Order 17 Rule 3 C.P.C. It was observed that the plea raised by the learned counsel for the appellant that the witness had suffered injuries was not substantiated by any documentary evidence as no medical certificate was produced on record. The learned lower Appellate Court also dismissed the appeal vide its judgment dated 21.1.2003. Mr.Sanjiv Pandit, learned counsel for the appellants has argued that the learned Court below has committed an error of law by closing the evidence under Order 17 Rule 3 C.P.C., whereas the Court should have passed the order under Order 17 Rule 2 C.P.C. He made a reference to the provisions of Order 17 Rule 3 and 17 Rule 2 C.P.C, which are reproduced below:- Order 17 Rule 3 3.Court may proceed notwithstanding either party fails to produce evidence, etc. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under rule 2]. RSA No. 2376 of 2004 5 Order 17 Rule 2 Procedure if parties fail to appear on day fixed-- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. [Explanation.-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.] It is submitted by the learned counsel for the appellants that Order 17 Rule 2 C.P. C provides that trial Court should have resorted to the provisions of Order IX of C.P.C. which provide that in case of non- appearance of the appellant, the case should have been dismissed for non prosecution but could not have been decided on merits. He also referred to a decision of the Supreme Court in the case of Mohan Dass and others Vs. Ghisia Bai, 2002 (3) RCR (Civil) 266. On the contrary, Ms.Kamalpreet Kaur, learned counsel for the respondents has argued with equal vehemence that the case law cited by the learned counsel for the appellants does not apply to the present case as it pertains to an order passed by Madhya Pradesh High Court, where there is an amendment in Order 17 Rule 3 C.P.C. by that High Court which provides that in a case where there is default under this rule as well as default of appearance under rule 2, the Court will proceed under rule 2 C.P.C. This amendment was brought on 27.8.1976. RSA No. 2376 of 2004 6 Learned counsel for the appellants could not rebut the argument raised by the learned counsel for the respondents in this regard. She further submits that in any case, the very suit filed by the appellants is not maintainable in view of the fact that the plaintiffs can not seek declaration that they have become owners of the suit land by way of adverse possession. She also relied upon a decision of this Court in the case of Bhim Singh and others Vs. Zile Singh and others (2006-3) PLR 159. in support of her contention. After hearing the learned counsel for the parties, I have found that even if it is conceded that the trial Court should have proceeded under Order 17 Rule 2 C.P.C.instead of Order 17 Rule 3 C.P.C., yet in view of the fact that the suit has been filed for seeking declaration under Section 34 of the Specific Relief Act that the plaintiffs have become owner of the suit property by way of adverse possession, the decree cannot be granted in view of the decision of this Court in Bhim Singh's Case (Supra) in which it has been held that no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession because plea of adverse possession is available only to a defendant against a plaintiff. Thus, looking from any angle, the suit of the plaintiffs does not survive. Hence, the present appeal is hereby dismissed January 14,2010 (Rakesh Kumar Jain) RR Judge