Regular Second Appeal No. 3006 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3006 of 2009 Date of decision : March 11, 2011 Dariya ....Appellant versus Gram Panchayat, Bhatgaon Maliyan ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Anil Rathee, Advocate, for the appellant None for the respondent L.N. Mittal, J. (Oral) Dariya plaintiff having failed in both the courts below has filed the instant second appeal. Plaintiff-appellant filed suit against defendant-respondent Gram Panchayat alleging that the plaintiff is in adverse possession of the suit property since May, 1987 and has, therefore, become its owner by adverse possession. The plaintiff claimed declaration to this effect. The defendant resisted the suit and denied that the plaintiff is owner of the suit land. It was pleaded that defendant Gram Panchayat is owner of the suit land being Shamlat Deh. It was denied that plaintiff is in Regular Second Appeal No. 3006 of 2009 -2- adverse possession of the suit land. Plaintiff was alleged to be in illegal and unauthorised possession of the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Sonepat vide judgment and decree dated 21.11.2008 dismissed plaintiff's suit. First appeal preferred by the plaintiff has also been dismissed by learned District Judge, Sonepat vide judgment and decree dated 8.5.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that one Prem Singh filed ejectment application dated 12.2.1988 under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (in short, the Act) as applicable to Haryana against plaintiff herein and his son and also impleading Gram Panchayat as respondent in the said ejectment application and therefore, the plaintiff is proved to be in adverse possession of the suit land for more than 12 years before filing of the instant suit which was instituted on 25.10.2004. The contention prima facie appears to be attractive but cannot be accepted. Plaintiff is proved to be in possession of the suit land for more than 12 years before the filing of the suit in view of plea taken in the ejectment application but all ingredients of acquiring title by adverse possession have not been pleaded and proved. Moreover, possession of the plaintiff has not remained unchallenged as his ejectment was sought by filing ejectment application under the Act but the said Regular Second Appeal No. 3006 of 2009 -3- application was ultimately dismissed in default. Suit seeking declaration that plaintiff has become owner by adverse possession is not maintainable because adverse possession can be set up only as defence. In this view, I am supported by two judgments of this Court in Bhim Singh & Ors. vs. Zile Singh & Ors., 2006(3) Civil Court Cases 479 (P&H) and Dewaki & Ors vs. Dayawanti & Ors., 2006 (3) Civil Court Cases 615 (P&H). Learned counsel for the appellant cited judgment of this Court in Kirpa and others versus Dharma and another, 2006(3) RCR (Civil) 597 and judgment of Hon'ble Supreme Court in Des Raj & Ors versus Bhagat Ram (Dead) by LRs. & Ors, 2007(2) RCR (Civil) 581. However, in those cases this question whether adverse possession can be set up only as defence and cannot be pleaded by the plaintiff was not agitated and adjudicated upon. On the contrary, in those cases the question whether a co-owner can claim adverse possession against other co-owner was adjudicated upon. On the other hand, in the cases of Bhim Singh & Ors. and Dewaki & Ors (supra), it was specifically held that a person in adverse possession cannot seek declaration of acquiring title by adverse possession. Consequently, the instant suit seeking declaration that plaintiff has become owner of the suit land by adverse possession is not maintainable. Learned counsel for the appellant also contended that the suit land does not vest in defendant - Gram Panchayat. However, this plea is untenable because this question can be adjudicated upon by competent authority under the Act and jurisdiction of civil court to adjudicate this Regular Second Appeal No. 3006 of 2009 -4- question is barred by section 13 of the Act. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) March 11, 2011 Judge 'dalbir'