IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 5196 of 2003 Date of Decision : August 11, 2009 Mangat Ram and others ....Appellants Versus Sunder Devi and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Arun Palli, Senior Advocate with Mr. Sunil Garg, Advocate for the appellants. Mr. Yogesh Goyal, Advocate for the respondents. T.P.S. MANN, J. Suit filed by the plaintiffs-appellants for declaration with consequential relief of permanent injunction was dismissed by the learned Courts below and they are now before this Court by way of second appeal under Section 100 of the Code of Civil Procedure. According to the plaintiffs, they alongwith the proforma- defendants were owners of half share and the contesting defendants were owners of the remaining half share in the suit land measuring 242 kanals 8 marlas. Since the time of their forefathers, the plaintiffs and R.S.A. No. 5196 of 2003 -2- the proforma defendants were continuing in actual physical possession of the entire suit land. The contesting defendants abandoned the village and left their land about 500 years ago and settled in village Hassanpur, which was at a distance of 20 kms. from the suit land. The possession of the plaintiffs and the proforma defendants over the suit land for the last 500 years was open to the knowledge of the contesting defendants, who had been occasionally visiting village Gondar, where the suit land was situated but they never asserted their rights. The plaintiffs and the proforma defendants continued to be in possession of the suit land without payment of any rent and the same had matured in the shape of adverse possession conferring title in favour of the plaintiffs and the proforma defendants. The possession after abandonment was peaceful, hostile and matured into adverse possession. Accordingly, the suit was filed for seeking the necessary declaration. Consequential relief of permanent injunction was also sought. In their written statement, the contesting defendants, apart from taking preliminary objections regarding maintainability, locus standi, etc., pleaded that they were joint owners of the suit land. The plaintiffs and the proforma defendants were never in exclusive possession of the suit land. The defendants never abandoned the village, rather they were having their property in village Gondar. The defendants were absolute owners in possession of the land in dispute to the extent of their share and under the garb of the present suit the R.S.A. No. 5196 of 2003 -3- plaintiffs wanted to oust them from the suit land illegally and forcibly. There was no hostile possession of the plaintiffs over the suit land to the knowledge of the defendants. They, accordingly, prayed for dismissal of the suit. Learned Courts below held that though the plaintiffs were in possession of the land on behalf of the defendants but it could not be proved that there was total ouster of the defendants. Therefore, the plaintiffs and the proforma defendants could not prove that they had been in possession of the suit land by way of adverse possession. Moreover, co-sharer or co-owners could not claim adverse possession against other co-sharers or co-owners. Accordingly, the plaintiffs were found to be having no locus standi or cause of action to file the suit and, therefore, the suit was not maintainable. The limited point that arises for consideration in the present second appeal is as to whether the suit filed by the plaintiffs that they had become owners by way of adverse possession over the suit property was maintainable or not. In Bhim Singh and others v. Zile Singh and others, 2006 (3) RCR (Civil) 97, it was held that the relief for declaration that the plaintiff had become absolute owner cannot be granted on the basis of adverse possession as such a plea of adverse possession can only be raised in defence, where the owner seeks possession of the immovable R.S.A. No. 5196 of 2003 -4- property. The relevant observations are reproduced here-in-below:- “At this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows:- Description of suit Period of limitation Time from which period begins to run Article 64 For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed Twelve years The date of dispossession Article 65 For possession of immovable or any interest therein based on title Twelve years When the possession of the defendant becomes adverse to the plaintiff Explanation – For the purpose of this Article- (a) Where the suit is by a remainder- man, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainder-man, reversioner or devisee, as the case may be, falls into possession; (b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. R.S.A. No. 5196 of 2003 -5- 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 perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. R.S.A. No. 5196 of 2003 -6- 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. 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). The following observations made in the Prem Nath Wadhawan's case (supra) may be noticed : “I have given my thoughtful consideration to the submission made by the learned counsel for the parties and have also perused the record. I do not find any merit 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.” At this stage, it may also be relevant to notice the relevant portion of paras 134 and 135 of the 3rd report of Law Commission of India as follows : “If the defendant wants to defeat the right of the R.S.A. No. 5196 of 2003 -7- plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non- suiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example : If A, B and C are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, through the last trespasser C was not in possession except for a short period.” “In our opinion, Article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff's prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner's entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in R.S.A. No. 5196 of 2003 -8- and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under Article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, Article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession.” Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title.” R.S.A. No. 5196 of 2003 -9- The judgment in Bhim Singh's case (supra) is fully applicable to the facts and circumstances of the case. The plaintiffs- appellants had sought declaration that they had become owners of the suit property on account of the defendants abandoning the suit land a long time ago and ever since then the plaintiffs had been in possession of the same without payment of any rent and their possession was peaceful and hostile and, therefore, matured into adverse possession. Such a plea was not available to them in view of the law laid down in the case of Bhim Singh (supra) as referred above. Therefore, the suit filed by the plaintiffs was not maintainable. However, in the event of the contesting defendants filing any suit or initiating any proceedings, the plaintiffs would be free to take any plea, including plea of adverse possession. The Court seized of the suit/proceedings, if initiated at the instance of the contesting defendants, would be free to comment on the pleas by the present plaintiffs and the proforma defendants and it would not be influenced or swayed by the observations made by the learned Courts below while dismissing the present suit of the plaintiffs. The appeal is, accordingly, disposed of. ( T.P.S. MANN ) August 11, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO