Regular Second Appeal No.1912 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1912 of 2008 Date of Decision:- 10.8.2011 Jaswant Singh and others ...Appellants Versus Nanak and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Surjit Singh Salar, Advocate for the appellants. Nemo for the respondents. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Gurbachan Singh son of Isher Singh (since deceased) plaintiff No.1, now being represented by his LRs, Jaswant Singh, Ajmer Singh, Randhir Singh and Jarnail Singh sons of Jodh Singh, plaintiff Nos.2 to 5 and Charan Kaur (since deceased) plaintiff No.6, now being represented by her LRs (for brevity “the plaintiffs”) filed the suit against Nanak and Moti sons of Lakhe respondent-defendants (for short “the defendants”) for a decree of declaration to the effect that the original plaintiff No.1 was sole owner to the extent of ½ share; whereas plaintiff Nos.2 to 5 are owners to the extent of other ½ share in the land in dispute, situated in the revenue estate of village Sante Majra, Tehsil Kharar, District Ropar (Now Mohali). 2. The case set up by the plaintiffs, in brief in so far as relevant, was that they are in exclusive possession of the suit land as Gairmaurusi Bila Lagan. Regular Second Appeal No.1912 of 2008 -2- Neither they nor their predecessor-in-interest paid any Chakota or Batai to the owners, inspite of demand made by the defendants. 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiffs claimed that although the defendants have been shown as owners in the revenue record, but they (plaintiffs) are in hostile, actual, open, un-interrupted and cultivating possession of the land in dispute as Gairmaurusi Bila Lagan, without payment of any Batai or Chakota for the last more than 50 years and they have become its owners, by way of adverse possession after the expiry of statutory period of 12 years, much before filing of the present suit. They asked the defendants to admit their claim, but in vain, which necessitated them to file the suit. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of declaration against the defendants, on the basis of adverse possession, in the manner indicated hereinbefore. 4. As the defendants did not appear despite service, therefore, the exparte proceedings were ordered against them by the trial Court. However, the plaintiffs produced the exparte oral as well as documentary evidence, in order to substantiate their claims. 5. The trial Court, after taking into consideration the exparte evidence brought on record, dismissed the suit of the plaintiffs, by virtue of impugned judgment and decree dated 19.10.2005. 6. Aggrieved by the impugned decision of the trial Court, the plaintiffs filed the appeal, which was dismissed as well, by the Ist appellate Court, by means of impugned judgment and decree dated 24.1.2008. 7. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 8. After hearing the learned counsel for the appellants, going through the record with his valuable help and after considering the entire matter deeply, to Regular Second Appeal No.1912 of 2008 -3- my mind, there is no merit in the instant regular second appeal as well in this context. 9. Ex-facie, the celebrated argument of learned counsel that the possession of the plaintiffs over the land in dispute is proved on record and since they became its owners, by way of adverse possession, so, the Courts below committed a legal mistake in dismissing their suit, sans merit. 10. As is evident from the record that the defendants have been shown to be owners of the suit land in the revenue record, while the plaintiffs have been described in its possession as Gairmaurusi Bila Lagan. In that eventuality, a very very heavy burden of proof was on the plaintiffs to prove by producing cogent evidence that their possession was hostile and adverse to the knowledge of true owner, but they have miserably failed in this relevant connection. 11. Having completed all the codal formalities, the trial Court recorded a finding of fact based on the acceptable evidence that “although the revenue record placed on the file reflects the possession of the plaintiffs over the suit property, since 1983-84, but merely being in possession does not entitle them to obtain a perfect title over the suit property. As it is clear from the Limitation Act, 1963 Section 65 wherein it had been reflected that the time start running from the date when the possession of the defendant become adverse to the plaintiff or the actual owner. In the instant suit this link evidence which is mandatory in nature to establish the adverse possession is missing as to exactly from which date, the month or year possession of the plaintiffs become adverse to its actual owner.” 12. Not only that, the decision of the trial Court was also upheld by the first appellate Court, through the medium of impugned judgment dated 24.1.2008, inter-alia which, in substance, is (para 11) as under:- “11. This suit was filed by the plaintiffs in September, 03. The summons sent by the court were received back with the report that the defendants are not residing on the given address and the court directed the plaintiffs to furnish their correct address. The plaintiffs did not furnish Regular Second Appeal No.1912 of 2008 -4- the correct address of the defendants who got Dasti summons and might have sent those summons through registered post which were not received back by the court and on that basis exparte proceedings were initiated against the defendants. Similarly in appeal, respondents have not been served personally. The summons sent to them were received back with the report of not residing at the given address and my predecessor ordered for their service through Munadi and as a result thereof Munadi was effected on the given address and the respondents were proceeded against exparte. From all these facts, it can be safely concluded that the plaintiffs sought to get a decree in their favour regarding their rights of ownership on the basis of adverse possession without seeing the actual owners and without their possession being to the knowledge of the actual owners. In this view of the matter, I am of the considered opinion that the plaintiffs of the present suit have miserably failed to substantiate their plea that they had been claiming hostile title on the basis of their possession to the very knowledge of the actual owners and thus their possession has ripened into title after extinguishing the rights of owner ship of the true owners, Nanak and Moti.” 13. Such thus being the position on record, now the sole controversy that arises for determination in this appeal is, as to whether the suit filed by the plaintiffs for a decree of declaration on the basis of adverse possession, is maintainable or not? 14. Having regard to the contentions of the learned counsel and legal position, to me, the answer must obviously be in the negative, as the suit filed by the plaintiffs, on the basis of adverse possession, is not maintainable and the Courts below have rightly dismissed their suit in this regard. This matter is not res integra and is now well settled. 15. An identical question came to be decided by this Court in case Babu Singh and others Versus State of Punjab and others, (2011-1) PLR 365. Having relied upon the judgments of the Hon'ble Apex Court in cases P.T.Munichikkanna Reddy and others Versus Revamma and others, (2007) 6 SCC 59, Annakili Versus A.Vedenayagam, 14(2007) 14 SCC 308 and Mandal Revenue Officer Versus Goundla Venkaiah and another, (2010) 2 Supreme Regular Second Appeal No.1912 of 2008 -5- Court Cases 461, it was ruled ( paras 17 and 18), as under:- “17. It is not a matter of dispute that neither there is any statutory provisions under the Transfer of Property Act, nor any other statute, or relevant positive legal provisions, conferring any proprietary rights or ownership of the property on any person by virtue of adverse possession as such. It pre-supposes and based on the speculative intent of a person on account of default of true owner being not in possession of the property. That means, the right of adverse possession is a piratical right, mainly, based on (i) speculative and negative theory of default, (ii) wishful presumption that the owner has abandoned the property to the adverse possessor and (iii) that the true owner has not claimed the possession from the opposite side within a period of limitation, prescribed under Articles 64 and 65 of the Limitation Act, as the case may be and nothing else. It lacks any statutory recognition in this behalf. Considering the concept of adverse possession, the Hon'ble Apex Court in case Hemaji Waghaji Jat Versus Bhikhabhai Khengarbhai Harijan, 2008(4) RCR (Civil) 401, has observed that “the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. 18. Such, thus, being the legal position and in the absence of any statutory/recognition/provisions, authorising the plaintiffs to claim ownership by way of adverse possession, to me, the plea of adverse possession cannot possibly be used as a sword (weapon of attack) by the plaintiffs. It can only be pleaded as a shield of defence by the defendants to protect their possession. Meaning thereby, the plaintiffs cannot claim their ownership in the property in dispute by way of adverse possession, in the plaint, though the parties in possession, may plead it as a defence in the written statement only for a limited purpose to protect their possession after expiry of the statutory period of limitation in this relevant connection and not otherwise. Reliance in this regard can well be placed on a judgment of this Court in case titled as Bhim Singh and others Versus Regular Second Appeal No.1912 of 2008 -6- Zile Singh and others, 2006(3) RCR(Civil) 97”. 16. Sequelly, the same view was again reiterated by this Court in RSA No.3045 of 2009 titled as “Jagmail Kaur Dhill and others Vs. Avtar Singh and others” decided on 13.7.2011. Therefore, the contrary arguments of learned counsel that the Courts below ought to have decreed the suit of plaintiffs on the basis of adverse possession, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances and the law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 17. Meaning thereby, the trial Court has rightly held that the suit for declaration filed by the plaintiffs on the basis of adverse possession, is not maintainable. Neither any other question of law, much less substantial, is involved in this regular second appeal, as contemplated under Section 100 CPC, nor any other point, worth consideration, has been urged or pressed by the learned counsel for the appellants. Thus, the impugned judgments and decrees of the Courts below deserve to be and are hereby maintained in the obtaining circumstances of the case 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 19. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 10.8.2011 Judge AS Whether to be referred to reporter?Yes/No