RSA No.3785 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3785 of 2010 (O&M) Date of Decision: 8 - 8 - 2011 Gulzari Lal ....Appellant v. Jagdish Rai etc. ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Manoj Chahal, Advocate for the appellant. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.11247-C of 2010 For the reasons stated in the application, delay of 5 days in filing the appeal is condoned. C.M. stands disposed of. RSA No.3785 of 2010 Plaintiff having lost in two rounds of litigation has approached this Court by filing the present Regular Second Appeal. A suit for declaration was instituted by the plaintiff praying that he is owner of land measuring 1 Kanal 10 Marlas, detail and description of which has been given in the plaint. It was claimed by the plaintiff that though defendant No.1 was owner of the land measuring 1 Kanal 10 Marlas RSA No.3785 of 2010 (O&M) [2] but the possession of the plaintiff over the land since 1980 is without any interruption, hostile to the whole world and this fact is evident from the fact that a tubewell was got installed by the plaintiff and he had obtained an electricity connection. Furthermore, he had constructed rooms for residential purpose and a Kothri/room for the tubewell. He had also laid pipe line for irrigating his ancestral land. It was further stated that seven days before filing of the suit, defendant No.1 taking undue advantage of the wrong entry made in the revenue record, started asserting his right. Defendants No.2 to 7 also claim that their father had purchased the property from defendant No.1. Upon notice, defendant No.1 did not cause appearance despite service and was proceeded against ex parte. However, defendants No.2 to 4, 6 and 7 filed the written statement. They raised preliminary objections regarding maintainability, locus standi of the plaintiff and also dismissal of the suit on the ground that material facts have been suppressed from the Court. The defendants who appeared before the Court, in the written statement stated that their father was owner in possession of the land as a sale deed was executed in his favour on 24.7.1975. After the death of their father, in the mutation inheritance of the defendants has been recorded. It was stated that the plaintiff was allowed to use water from the tubewell by the father of answering defendants. Even the crop has been sown over the suit land by the answering defendants. Plaintiff filed the replication, in which he reiterated the contents of the plaint and denied the averments made in the written statement. After completion of the pleadings, the trial Court had RSA No.3785 of 2010 (O&M) [3] formulated the following issues:- i) Whether the plaintiff has become the owner in possession of suit land by virtue of principle of adverse possession? OPP ii) Whether the plaintiff has no locus standi to file the suit? OPD iii) Whether the suit is not maintainable in its present form? OPD iv) Relief. The trial Court held that the land in question was purchased by Hawa Singh, father of defendants No.2 to7 from Jagdish Rai defendant No.1 on 24.7.1975. DW3 Jagdish Rai in his affidavit Ex.DW3/A stated that on the day, the sale deed was executed, possession was handed over to Hawa Singh. The trial Court while taking into consideration the totality of facts held that the pipe line beneath the fields has been laid for a long period with the consent of Hawa Singh and, thus, the plaintiff had only right to use water of the tubewell through the pipe line but no right vests in him to claim adverse possession. This finding of the trial Court is well justified as the trial Court had taken into consideration the cross-examination of PW4 Gulzari Lal plaintiff. The following portion of the judgment where the cross-examination has been noticed reads as under:- “5. ...... He stated that it is correct to say that water of tube well of land in dispute is good and fit for crop. He stated that he has no proof about ownership of property in question. He stated that there exist tube well over land in dispute but further own stated that it was installed due to cordial relation with mutual consent of Hawa Singh. He denied that he instituted this suit due to enmity.” Taking the totality of circumstances into consideration, the trial Court concluded that plaintiff was neither owner nor in hostile possession of RSA No.3785 of 2010 (O&M) [4] the property in dispute. Rather, he was only using the water from the tubewell which was installed in the disputed land with the consent of Hawa Singh. Therefore, defendants No.2 to 7 being legal representatives of Hawa Singh had every right to use the property in question in the manner they like. Thus, issue No.1 was decided against the plaintiff and it was held that he can use the water of the tubewell installed in the property in question with the consent of Hawa Singh. Issues No.2 and 3 were also decided against the defendants and the suit was partly decreed. The lower Appellate Court affirmed the findings returned by the trial Court and further held that plaintiff had failed to substantiate the plea of adverse possession from the pleadings as well as documentary evidence. I have heard Mr.Manoj Chahal, learned counsel for the appellant. It was specifically pointed out to Mr.Chahal 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 defence 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 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, RSA No.3785 of 2010 (O&M) [5] 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, the lower Appellate Court has rightly relied upon Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Others, 2008(4) RCR (Civil) 401 to hold that the claim of the plaintiff 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-plaintiff in view of the legal position propounded in Bhim Singh's case (supra) and Hemaji Waghaji Jat's case (supra). Thus, this Court in Regular Second Appeal cannot come to the rescue of the appellant-plaintiff. RSA No.3785 of 2010 (O&M) [6] Hence, there being no merit in the present appeal, it is dismissed. ( KANWALJIT SINGH AHLUWALIA ) August 8, 2011. JUDGE RC