RSA No.2105 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.2105 of 2011 (O&M) Date of Decision: 18 - 7 - 2011 Suresh and others ....Appellants v. Parveen Kumar and another ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Harkesh Manuja, Advocate for the appellants. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.5879-C of 2011 C.M. is allowed. Exemption is granted from filing certified copy of Annexure P1. RSA No.2105 of 2011 (O&M) Having failed in two rounds of litigation, the plaintiffs have approached this Court by filing the present Regular Second Appeal. The appellant-plaintiffs had filed a suit for declaration claiming themselves to be owner in possession of the suit property on the basis of adverse possession. They further prayed for grant of permanent injunction restraining the defendant-respondents from interfering in their peaceful possession. It was pleaded that the suit land had remained in continuous possession of the RSA No.2105 of 2011 (O&M) [2] appellant-plaintiffs as well as their predecessors-in-interest for the last more than 50 years. Hence, they asserted ownership over the suit property by way of adverse possession. The detail and description of the suit property has been given in the plaint. To claim adverse possession, it was specifically pleaded that possession of the plaintiffs over the suit land is open, hostile, adverse, peaceful continuous and without interruption to the knowledge of the whole world including the defendants. The adverse possession of the father of the plaintiffs was since 20.7.1987 and after his death ownership had accrued to the plaintiffs after 12 years. Upon notice of the suit, defendants caused appearance, filed the written statement and raised preliminary objections regarding maintainability of the suit; estoppel on the part of the plaintiffs to file the suit; locus standi and the suit being barred by limitation. On merits, it was stated that father of the plaintiffs was tenant over the suit property and after his death, plaintiffs have become tenant over the same. It was pleaded that a tenant is always a tenant and can not seek adverse possession. Father of the plaintiffs had also approached the revenue Court claiming himself to be a tenant. The application filed to this effect was withdrawn by him. It was further stated that the application filed by father of the plaintiffs under Section 77 of the Punjab Tenancy Act was allowed by the Assistant Collector, Sonepat, against which the defendants filed an appeal before the Collector. In the Court of Collector, father of the plaintiffs made a statement to withdraw the original application which was permitted vide order dated 25.1.2007. The trial Court held that Brahm Singh was a tenant over the suit property and observed as under:- RSA No.2105 of 2011 (O&M) [3] “13. For these reasons, the plaintiffs had failed to establish that he has become the owner of the suit property by way of adverse possession. There is also nothing on record so as to show that the defendant has threatened the plaintiff to dispossess him from the disputed property illegally or forcibly and, therefore, he is not entitled to any injunction against the defendant. More so, the defendant is a true owner and no injunction can be granted against him. So, these both the issues are decided against the plaintiff.” The trial Court further held that the suit filed by the plaintiffs for declaration that they have become owner in possession because of adverse possession is not maintainable, as the plea of adverse possession can only be raised in defence in a suit for recovery of possession. In view of the findings returned above, the suit was dismissed. The lower Appellate Court had concurred with the findings returned by the trial Court. I have heard Mr.Harkesh Manuja, counsel for the appellant- plaintiffs. It was specifically pointed out to Mr.Manuja that in view of the law laid down in Bhim Singh and others v. Zile Singh and others, 2006 (3) RCR (Civil) 97, plea of adverse possession can only be taken in defemce and a person who claims himself to be in adverse possession, cannot institute a suit for declaration, he has not been able to cite any contrary judgment. It will be apposite here to reproduce the following observations made by this Court in Bhim Singh's case (supra):- “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 RSA No.2105 of 2011 (O&M) [4] 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 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.” Furthermore, both the Courts below have rightly relied upon Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Others, 2008(4) RCR (Civil) 401 to hold that the claim of the plaintiffs in a suit on the basis of adverse possession is not tenable. Thus, the substantial question of law whether a person can seek declaration that he is owner in possession on the basis of adverse possession against the true owner is to be answered against the appellant-plaintiffs in view of the legal position propounded in Bhim Singh's case (supra) and Hemaji Waghaji Jat's case RSA No.2105 of 2011 (O&M) [5] (supra). Thus, this Court in Regular Second Appeal cannot come to the rescue of the appellant-plaintiffs. Hence, there being no merit in the present appeal, same is dismissed. ( KANWALJIT SINGH AHLUWALIA ) July 18, 2011. JUDGE RC