RSA No.962 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.962 of 2010 (O&M) Date of decision: 5.3.2010 Kartar Singh ......Appellant(s) Versus Dan Singh ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.S. Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.2780-C of 2010 Application is allowed subject to all just exceptions. RSA No.962 of 2010 (O&M) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration to the effect that decree dated 28.2.2003 passed in case No.843 of 1997 was illegal null and void with consequential relief of permanent injunction, was dismissed. As per the averments, plaintiff-appellant Kartar Singh filed the present suit claiming himself to be the owner in possession of the suit property on the basis of adverse possession. It was pleaded that the plaintiff was in possession of the suit property since the year 1970 and his possession was open, uninterrupted, hostile and peaceful and he had become owner of the suit land on the basis of adverse possession. It was further pleaded that the judgment and decree passed in Civil Suit No.843 of 1997 titled as Dan Singh v. Kamlesh etc. dated 28.2.2003 was illegal, null RSA No.962 of 2010 (O&M) 2 and void and was not binding upon the rights of the plaintiff as he was not the party in that suit. The plaintiff asked the defendant not to interfere in his possession but of no use. Hence the present suit. Upon notice, the defendant appeared and filed written statement taking various preliminary objections. It was pleaded that the plaintiff had no right title or interest with the suit property in any manner and the defendant was owner in possession of the suit property since the time of his forefathers. It was further pleaded that the judgment and decree dated 28.2.2003 was legal and was to the knowledge of the plaintiff. Dismissal of the suit was prayed for. On the basis of the evidence on record and the arguments raised by learned counsel for the parties, the Courts below recorded a concurrent finding of fact that the plaintiff has failed to prove his case. Still not satisfied, learned counsel for the appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that in the present case the Courts below have erred at law while considering the title of the parties in a suit for permanent injunction as in the present suit, the only fact which was to be determined was, as to who was in possession. Since the appellant was in possession as admitted by Dan Singh-defendant himself, the appellant was entitled to the decree as prayed. Learned counsel also raised an argument that the decree dated 28.2.2003 could not be applied to the appellant as he was not a party to the aforesaid decree and thus, according to him, the following substantial questions of law arise in this appeal: “a) Whether the judgment of the learned Lower Appellate Court is vitiated on account of a wrong test RSA No.962 of 2010 (O&M) 3 being applied to the case, namely, the title of the land in dispute and not its possession alone? b) Whether the learned Lower Appellate Court has also applied a wrong test for challenge to the decree of 28.2.2003 in as much as it has required the plaintiff- appellant to prove that the decree is vitiated by fraud,etc. although it is accepted that the plaintiff-appellant was not a party to the earlier suit? c) Whether a finding can be sustained which is contrary to the admissions of the defendants as quoted in para 12 above?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. The argument raised by the learned counsel for the appellant is without any force. From the perusal of the pleadings, it is crystal clear that the appellant is basing his claim to the relief sought on the plea of adverse possession. Except this plea, the plaintiff-appellant has not taken any other plea with regard to his title. However, the Courts below have recorded a concurrent finding of fact that the appellant has failed to prove his plea of adverse possession over the suit property. Not only this, the suit filed on behalf of the plaintiff-appellant on the plea of adverse possession is not maintainable as held by this Court in Bhim Singh and others v. Zile Singh and others 2006(3) RCR (Civil) 97. In the absence of setting up of any title, the suit of the plaintiff-appellant, simplicitor for permanent injunction on the basis of possession against the defendant cannot be sustained who were claiming their title to the suit property on the basis of decree dated 28.2.2003. It may also be noticed that onus to prove the fact/issue of the validity of the decree dated 28.2.2003 was upon the RSA No.962 of 2010 (O&M) 4 plaintiff-appellant. However, except making a statement that the appellant was not a party to the decree and therefore, he was not bound by the same, no other evidence has been brought on record as to how the aforesaid decree has effected the rights of the appellant. It is not the case where the appellant can protect his possession against the defendant on the ground that the defendant-respondent was not having a better title than him. Rather by taking the plea of adverse possession, the plaintiff has accepted the ownership of defendant-respondent. It is well settled that no injunction can be issued against a true owner. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. March 5, 2010 (RAKESH KUMAR GARG) ps JUDGE