R.S.A. No. 3692 of 2006 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3692 of 2006 (O&M) Date of Decision : 19.1.2009 Mohinder Singh & others. .......... Appellants Versus Nachhattar Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Raman Mohinder, Advocate for the appellants. Mr. M.K. Singla, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) The appellants by way of regular second appeal have challenged the judgment and decree passed by the learned lower appellate Court vide which the judgment and decree passed by the learned trial Court stood modified. The plaintiff-appellant claimed that the following substantial questions of law arise for consideration in this appeal :- 1. Whether the judgment and decree overlooking the documentary evidence i.e. the jamabandi and khasra- girdawari can be sustained ? 2. Whether a co-sharer can claim adverse possession against other co-sharers ? R.S.A. No. 3692 of 2006 (O&M) 2 3. Whether the right of a purchaser through registered sale deed can be defeated ? The plaintiff-appellants filed a suit for declaration on the pleadings that plaintiff No.1 purchased 22 Kanals 16 Marlas out of the suit land vide sale deed dated 12.6.1978 from Swaran Singh son of Mukand Singh and claimed to be in possession as owner since then. Plaintiffs No.1 & 3 also purchased 7 Kanal 16 Marlas out of the suit land by way of sale deed dated 3.3.1986 from Swaran Singh and claimed to be in possession of the land since then. The possession of the plaintiffs was said to be actual, adverse, continuous, notorious, hostile and under the colour of title and, thus, claimed to have become owners by way of adverse possession. On notice, defendants No. 4 to 17 chose not to contest the suit and were ordered to be proceeded against ex parte. The suit was contested by defendants No. 1 to 3 by raising a preliminary objection that the plaintiff-appellants did not come to Court with clean hands and concealed the true facts. It was claimed that an application for partition was pending before the revenue Court regarding the suit land and the different portions stood allotted to the co-sharers. The plea of non-joinder and mis-joinder of necessary parties was also taken. It was claimed that Gurdev Kaur defendant No.4 is not the widow of Nahar Singh but of Mukhtiar Singh. Nahar Singh was said to be son of Mukhtiar Singh, who was not impleaded as a party. It was also the R.S.A. No. 3692 of 2006 (O&M) 3 case of the defendant-respondent that the plaintiffs have taken self contradictory pleas i.e. the purchase and adverse possession. On merit, it was denied that Swaran Singh son of Mukand Singh was owner of the suit property rather Swaran Singh was owner to the extent of 1/3rd share in the land measuring 46 kanals and, therefore, had no right to alienate more than his share. The sale deed in excess of his share was said to be wrong and illegal having no effect on the rights of the defendants. It was also the case of the defendant-respondents that Swaran Singh vendor of the plaintiff-appellants had already sold more than his share i.e. 22 kanals 16 Marlas and, thus, sale deeds were said to be illegal, null and void. The correctness of the revenue record was also challenged. It was also denied that the possession of plaintiff was adverse. Defendants No. 1 to 7 in the suit had filed an application for partition on 7.9.1994. It was also the case of the defendants that in partition 27 kanals 12 Marla s of land was given to the plaintiffs on 18.3.1999. The order was passed in presence of the plaintiffs. Other pleas were denied. After getting ex parte order set aside defendant No. 5 filed a separate written statement. He also contested the case on merit. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- 1. Whether the plaintiffs are owner in possession of the suit land on the basis of registered sale deeds No. 2199 and 3204 dated 12.6.1969 and 3.3.1986 respectively ? OPP 2. Whether the plaintiffs a r e owners in possession of the suit land after afflux of time by way of adverse R.S.A. No. 3692 of 2006 (O&M) 4 possession ? OPP 3. Whether the suit of the plaintiffs is bad for non-joinder and mis-joinder of necessary parties ? OPD 4. Whether the plaintiffs have no cause of action and locus- standi to file the present suit ? OPD 5. Whether the suit is not maintainable in the present form ? OPD 6. Whether the plaintiffs are entitled to the declaration as prayed for ? OPD 7. Relief.” Issue No.1 was decided against the plaintiff-appellants by the learned trial Court and it was held that the plaintiff-appellants could not be delared to be owners in possession of the suit land measuring 30 Kanals-12 Marlas on the basis of sale deeds. Issue No.2 was also decided against the plaintiff-appellants by holding that the plaintiff-appellants could not claim to be owners by way of adverse possession. Issue No.3 was decided in favour of the plaintiff-appellants and it was held that the suit was not bad for mis-joinder and non-joinder of necessary parties. Issues No.4 & 5 were also decided in favour of the plaintiffs to hold that the suit filed by the plaintiffs was maintainable. Issue No.6 was decided against the plaintiffs and consequently the suit was dismissed. The plaintiffs preferred an appeal against the judgment and decree passed by the learned trial Court, the decree was partly modified. R.S.A. No. 3692 of 2006 (O&M) 5 The learned counsel for the appellants contends that the findings of the learned lower appellate Court holding that the plaintiffs have failed to prove adverse possession could not be sustained as the date when they came into possession, stood established. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in the cases of Bondar Singh & Ors. Vs. Nihal Singh & Ors. 2003(1) Apex Court Judgments 557 (SC). The contention of the learned counsel for the appellants cannot be accepted nor the judgment relied upon by the learned counsel for the appellant is of any help, as the plaintiffs / appellant failed to plead or prove the necessary ingredients to claim adverse possession. It was not pleaded or proved that the possession of the appellants was open and hostile to true owner. Mere possession howsoever long does not mature into adverse possession. The learned counsel for the appellants also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Dharmarajan & Others Vs. Valliammal & Others 2008(1) R.C.R. (Civil) 278 to contend that it is open to the plaintiffs to file a suit seeking ownership on the basis of their possession being adverse. However, the Hon'ble Supreme Court in the case of Dharmarajan & Others Vs. Valliammal & Others (supra) has not considered whether the plea of adverse possession is that of defence or an independent suit claiming ownership on the basis of adverse possession is maintainable. This Court in the cases of Bhim Singh and others Vs. Zile R.S.A. No. 3692 of 2006 (O&M) 6 Singh and others 2006(3) R.C.R. (Civil) 97 has been pleased to lay down as under :- “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, 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 R.S.A. No. 3692 of 2006 (O&M) 7 plaintiff with regard to his ownership on the basis of adverse possession. 12. xx xx xx xx 13. The following observations made in the Prem Nath Wadhawan's case (supra) may be noticed : “I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. I do not find any merit in the contention of the learned counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession.” 14. xx xx xx xx 15. Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a R.S.A. No. 3692 of 2006 (O&M) 8 plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title. 16. The judgment relied upon by the learned counsel in Manmohan Service Station's case (supra) is however totally different and the same does not support the proposition of law canvassed by him. In the said case, the Court was dealing with a situation where the plaintiff had filed the suit for protection of his possession and had claimed injunction. It was in those circumstances that the Court had ruled that the plaintiff was entitled to protect his possession. Certain observations were also made with regard to the right of such a plaintiff to seek declaration but in my considered view the said observations are wholly orbiter. As a matter of fact, the Court in the said case was merely deciding an application for interim injunction filed by the said plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure. In these circumstances, the said authority has no application to the proposition of law canvassed by the learned counsel for the appellant and cannot be used by the present plaintiff-appellant in his favour. 17. xx xx xx xx 18. It is apparent from the observations made by the learned First Appellate Court that the status of the plaintiffs had been described differently in different revenue entries and at some point of time the plaintiffs had even been described as mortgagees. In these circumstances, the plaintiffs have not been able to prove that their possession was adverse/hostile to the real R.S.A. No. 3692 of 2006 (O&M) 9 owners and to the knowledge of such true owner. A mere long possession cannot be taken to be an adverse possession.” In view of the law laid down by this Court in the case of Bhim Singh and others Vs. Zile Singh and others (supra) no substantial question of law arise for consideration by this Court. No merit. Dismissed. 19.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE