Regular Second Appeal No. 3897 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3897 of 2009 Date of decision : August 31, 2010 Santokh Singh and another ....Appellants versus Darshan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Umesh Kumar, Advocate for Mr. R.S. Chauhan, Advocate, for the appellants Ms. Puja Chopra, Advocate for the respondents-caveators L.N. Mittal, J. (Oral) Plaintiffs having remained unsuccessful in both the courts below are in second appeal. Plaintiffs filed suit alleging that they are in possession of the suit land measuring 2 kanals 5 marlas for more than 30 years preceding filing of the suit and their, possession over the suit land is adverse, open and hostile and they have become owners of the suit land by adverse possession. The suit land was banjar. The plaintiffs reclaimed and made it cultivable. The plaintiffs also sought permanent injunction. Regular Second Appeal No. 3897 of 2009 -2- Defendants controverted the plaint allegations and inter alia, pleaded that plaintiffs are tenants over the suit land under the defendants on payment of 1/3rd batai. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Zira vide judgment and decree dated 27.10.2006 dismissed suit for declaration but decreed the suit for permanent injunction restraining the defendants from dispossessing the plaintiffs from suit property forcibly or illegally except otherwise than in due course of law. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Ferozepur vide judgment and decree dated 14.1.2009. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that the appellants are in adverse possession of the suit land as proved from entries in revenue record since 1984-85 i.e. for more than 12 years preceding filing of suit and therefore, become owners of the suit land by adverse possession. Learned counsel for the respondents, however, contended that possession of plaintiffs/appellants over the suit land is as tenants under the defendants on payment of 1/3rd batai as reflected in the revenue record and possession of the plaintiffs over the suit land was never adverse and therefore, they have not become its owners by adverse possession. I have carefully considered the rival contentions. Perusal of Regular Second Appeal No. 3897 of 2009 -3- judgments of the courts below reveals that both the courts below analyzed the revenue record and have come to concurrent finding on its basis that the possession of the plaintiffs over the suit land was not adverse. On the other hand, revenue record depicts that the possession of the plaintiffs over the suit land was as tenants under the defendants on payment of 1/3rd batai. Consequently, the question of the plaintiffs becoming owners by adverse possession did not arise. There is concurrent finding of fact by both the courts below. The said finding is based on appreciation of evidence. The same is not shown to be perverse or illegal so as to call for interference in second appeal. On the other hand, finding of the courts below is fully justified by the material on record and is supported by cogent reasons. Lower appellate court is final court of fact. No question of law much less substantial question of law arises for determination in the instant second appeal. In addition to the aforesaid, this Court in Bhim Singh and Ors. Versus Zile Singh & Ors., 2006(3) Civil Court Cases 479 and Dewaki & Ors versus Dayawanti & Ors, 2006(3) Civil Court Cases 615 has categorically held that a person in possession cannot file suit to seek declaration that he has become owner of the property by adverse possession. It was also held that adverse possession can be pleaded only in defence and not by filing suit for declaration of ownership on the basis of adverse possession. In view of said judgments as well, suit filed by the appellants- plaintiffs for declaration that they have become owners of the suit land by adverse possession is not even maintainable. Regular Second Appeal No. 3897 of 2009 -4- For the reasons recorded hereinabove, I find no merit in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) August 31, 2010 Judge 'dalbir'