RSA No.2020 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2020 of 1993 Date of Decision: 27.5.2009 Akbar & Ors. ..Appellants Vs. Smt.Zuhri & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Lokesh Sinhal, Advocate, for the appellants. Mr.Sachin Mittal, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) The plaintiff/appellants have filed this regular second appeal against the judgment and decree dated 1.9.1993 passed by the learned courts below, dismissing the suit filed by the plaintiffs for declaration, claiming themselves to be the owners in possession of the agricultural land measuring 45 kanals 1 marla situated within the revenue estate of village Molhaka, Tehsil Ferozepur Jhirka District Gurgaon. The case set up by the plaintiff/appellants was that the suit land was allotted during the consolidation of holding in village in lieu of the land RSA No.2020 of 1993 2 previously owned by Murad. Shri Murad, father of defendant-respondents No.1 to 4 in his life time and before his death had surrendered and transferred the ownership right in respect of the suit land in favour of the father of the plaintiffs and their uncle Kalu, on the condition that they should bring up and maintain defendants No.1 to 4, i.e. his daughters, and also arrange for their marriages. The predecessors-in-interest of the plaintiffs namely Bhopat and Kalu, were, therefore, said to be owners in possession of the suit land, because they had maintained and brought up defendants No.1 to 4 and also arranged their marriages. In view of the arrangement referred to above, the defendants had no right, title or interest in the suit property. Plea of ownership by way of adverse possession was also raised on the ground that they had been in possession of the suit property continuously adversely without any interruption from the defendants, and as such had perfected their title. On notice suit was contested by the defendants by denying the averments made in the plaint. It was claimed by the defendant/respondents, that their father was owner of the suit land which had been inherited by inheritance. Defendants also claimed that plaintiffs and their father were cultivating the land on Batai by sharing the crops. It was also the case set up that they were allowed to cultivate the land because they were relation of the father of the defendants. The possession was permissive. The plaintiffs or their predecessors-in-interest never asserted themselves to be the owners of the suit land. It was also claimed that as the plaintiffs have denied the title of the defendants, as such they were to seek possession of the suit property by way of counter claim. The defendants claimed RSA No.2020 of 1993 3 possession of the suit property as owners thereof. In the replication the averments made in the plaint were reiterated and that in the written statement were denied. On the pleadings of the parties the learned trial court framed the following issues:- 1. Whether the plaintiffs are owners in possession of the suit property as alleged? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the defendants are entitled to decree for possession by way of counter claim? OPD 4. Whether the possession of the plaintiff has become illegal? OPD 5. Relief. On appreciation of evidence a concurrent finding of fact has been recorded by the learned courts below that the plaintiffs were not owners of the property but were in possession. Issue No.2 was decided against the defendants for want of evidence. Issue No.3 was decided in favour of the defendant-respondents holding that they were entitled to possession of the suit land by way of counter claim, as the title of the owner, was denied by the plaintiffs. They lost right to retain the possession thereof. On issue No.4, learned courts below were pleased to hold the possession of the plaintiffs to be not legal. Issue No.4 was not pressed by RSA No.2020 of 1993 4 the defendants. Mr.Lokesh Sinhal, learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial question of law: “ Whether in view of the findings recorded on issue No.4 learned courts below could have decreed the counter claim filed by the defendant/respondents? In support of the substantial question of law, learned counsel for the appellants vehemently contends that a specific issue was framed as to whether the possession of the plaintiff/appellants was illegal and the issue was not pressed, so their possession being legal they could not be dispossessed by civil court. The plaintiff/appellants in given situation were to be treated tenants on Batai and therefore, could only be dispossessed under the Land Revenue Act and not by civil court. It is also the contention of the learned counsel for the appellants that the decree allowing counter claim could not be sustained. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. It is not in dispute that the case set up by the plaintiffs/appellants was of ownership which they failed to prove. It was disbelieved that immovable property could be transferred, the way it was alleged in the plaint. No fault can be found with the findings recorded by the learned courts below holding that the plaintiffs were not owners but in possession of the suit property. Similarly, learned courts below on appreciation of evidence have rightly held the suit to be not maintainable. RSA No.2020 of 1993 5 Issue No.2 was not pressed, though on the face of it suit framed was not maintainable as the plaintiffs could not file a suit for declaration by claiming themselves to be owners by way of adverse possession, as the plea of adverse possession is that of defence and no suit to seek declaration of ownership by way of adverse possession is competent. The contention of the learned counsel for the appellants that in view of the findings on issue No.4, counter claim was liable to be rejected also can not be accepted. If findings on issues No.2 and 3 are read together, there is no illegality in allowing counter claim. Learned courts below held that the possession of the plaintiffs was permissive but became illegal after filing of the suit when the title of landlord was denied. The initial possession was not illegal, therefore, on issue No.4 learned courts below held that possession of the plaintiffs was not illegal, but right accrued to defendant/respondents i.e. landlord to seek possession under section 115 of the Evidence Act. The counter claim was allowed under issue No.3 in view of the stand taken in the suit denying the title of the owner. The findings recorded by the learned courts below on issue No.3 is based on well established principle of law and if a tenant/lessee denies the title of his landlord he is not entitled to retain possession. The dispute regarding title, was to be considered by the civil court and not by revenue court as rightly held by the learned courts below. Learned courts below were not in error in allowing the counter claim in view of the provisions of Section 115 of the Indian Evidence Act. The substantial question of law raised is, therefore, answered RSA No.2020 of 1993 6 against the plaintiff/appellants. In views of reasons stated above, finding no merit in the appeal it is ordered to be dismissed but with no order as to costs. 27.05.2009 (Vinod K.Sharma) rp Judge