Regular Second Appeal No. 3477 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Regular Second Appeal No. 3477 of 2008 Date of Decision: November 04, 2008 Gurbax Singh .....Appellant vs. Lachhman and others .....Respondents Coram:- HON'BLE MR. JUSTICE RAKESH KUMAR JAIN **** Present: Mr.G.S.Nagra, Advocate, for the appellant **** RAKESH KUMAR JAIN J. In the present appeal defendant-Gurbax Singh has assailed the judgment and decree of both the courts below whereby the suit filed by the plaintiffs has been decreed. The plaintiffs filed suit for possession of land measuring 7 Kanals 16 Marlas comprised in Khasra No. 10/1 Rect. No. 158 situated within the revenue estates of village Bakhli, Tehsil Pehowa, District Kurukshetra alleging that they and the proforma defendant are the owners of the suit land as per jamabandi for the year 1995-96 and the defendant is in illegal possession. In the written statement it was inter alia pleaded by the Regular Second Appeal No. 3477 of 2008 -2- defendant that he is in possession of the suit land since the year 1954-55 which has ripened into ownership by adverse possession. It was also alleged that proforma defendant Hari Singh had filed suit for possession against the defendant-appellant by way of Civil Suit No. 186 of 1993 which was dismissed under Order 9 Rule 8 CPC on 19.7.1995 by the court of Shri Nand Kishore, the then Additional Senior Sub Judge, Pehowa thus the present suit is barred by the Principles of res judicata. The plaintiffs filed replication in which the averments made by the defendant in the written statement were denied and that of the plaint was reiterated. From the pleadings of the parties following issues were framed:- “1. Whether the plaintiffs are entitled to possession of the suit land as detailed in para no. 1 of the plaint? OPP 2. Whether the suit land of the plaintiffs is not maintainable in the present form?OPD 3. Whether the suit of the plaintiffs is time barred? OPD 4 Whether the plaintiffs have no locus-standi to file the present suit? OPD 5. Whether the defendant No. 1 has become the owner of the suit land by way of adverse possession ? OPD 6. Whether the suit of the plaintiffs and proforma defendants No. 2 to 16 is hit by the provisions of res judicata? 7. Relief. After considering the evidence led by both the parties, learned trial court while discussing Issue Nos. 1 to 5 together held the plaintiffs to be owners of the suit land and the defendant was found to be a tresspasser. Regular Second Appeal No. 3477 of 2008 -3- It was further held that defendant has been in possession since 1975-76 but long possession does not amount to adverse possession. On Issue Nos. 2 and 4, the trial court had held that the plaintiffs had the locus-standi to maintain the suit. On Issue No. 3, it was held that the suit was not time barred as it was based upon titled and defendant has failed to prove his adverse possession. Issue No. 6 was decided in favour of the plaintiff holding that the suit is not barred by res-judicata. The plaintiffs preferred the first appeal which was also dismissed by the learned First Appellate Court on the ground that the plea of adverse possession of the defendant is unsustainable as the revenue record/jamabandi exhibited in this case proves that the defendant is sub-lessee under the lessee on payment of cess. Therefore, he was found to be in permissive possession. It was also held that the earlier suit filed under Order 9 Rule 8 CPC does not bar the co- sharer to file a fresh suit. Mr. G.S.Nagra, learned counsel appearing for the defendant- appellant has contended that defendant is in possession of the suit land from the year 1954-55, which is hostile to the interest of the plaintiffs and their predecessors and to the whole world. The ir possession has ripened into ownership by adverse possession and it is nobody's case that the defendant was or is in permissive possession. I have heard learned counsel for the appellant and after giving my thoughtful consideration to the contention raised by him, I find no material to differ with the findings recorded by the courts below. It is well settled that mere long possession does not amount to adverse possession. The defendant has to plead and prove as to when his possession became adverse to the true owner meaning thereby the defendant has to prove that Regular Second Appeal No. 3477 of 2008 -4- his possession is open, continuous and hostile to the knowledge of the true owner/plaintiff for the last 12 years in order to successfully take the plea of adverse possession to thwart the attempt of the plaintiffs to seek a decree for possession. In the present case, however, the defendant has failed to disclose this fact either in the pleadings or in the evidence as recorded by the learned First Appellate Court. Even in the previous litigation, the defendant has not pleaded that he is in adverse possession. It has been found by the First Appellate Court that as per the revenue record in the nature of jamabandi exhibited on the record proves that the defendant is sub-lessee under the lessee on payment of cess . Therefore, the revenue record which carries presumption of truth and has not been rebutted by the defendant, proves his possession to be permissive and not adverse to the title of the plaintiff. Moreover, the earlier suit filed by co-owner Surat Singh, dismissed under Order 9 Rule 8 CPC does not debar filing of fresh suit by the co-sharers as the suit is based upon title and the defendant is admittedly in unauthorised possession. No other point has been raised by the counsel for the appellant nor any question of law much less substantial has been raised. In view of the above discussion, I do not find any merit in the present appeal and the same is hereby dismissed. (RAKESH KUMAR JAIN) JUDGE November 04, 2008 paramjit