R.S.A.No. 3504 of 2010(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3504 of 2010(O&M) Date of decision: 25.5.2011 Inder Singh ......Appellant Versus Pushkar .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Anil Ghangas, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for declaration. The case of the plaintiff, in brief, was that Jug Lal, Gulzari Lal and Parbhu Ram were owners in possession of the land measuring 42 bigha 6 biswa situated in Village Berla. Jug Lal sold his share measuring 14 bigha to Parbhu Ram, Birbal and Balwant Singh. The said sale was pre-empted by defendant Pushkar. The possession of the land was handed over to defendant Pushkar. The plaintiff orally purchased the suit land from the defendant in kharif 1969 for a sum of ` 7,000/- and got the possession of the suit land. The defendant had not executed sale deed in favour of the plaintiff. R.S.A.No. 3504 of 2010(O&M) 2 The possession of the plaintiff was, thus, open, hostile and adverse to the real owner. Defendant, in his written statement, admitted the fact that he had pre-empted the sale executed by Jug Lal. The other contentions in the plaint were denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff has become owner in possession of the suit land by way of adverse possession? OPP. 2. If issue No.1 is proved, whether plaintiff is entitled for declaration and injunction ? OPP 3.Whether suit is not maintainable in the present form ? OPD 4.Whether e plaintiff has no cause of action to file the present suit ? OPD 5. Whether suit is false and frivolous? OPD 6. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 12.8.2008. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 26.5.2010 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the plaintiff had been successful in establishing that he had orally purchased the suit property in the year 1969 for a sum of ` 7,000/- from the defendant. As per the revenue record, the plaintiff was in R.S.A.No. 3504 of 2010(O&M) 3 possession of the suit property. The plaintiff had become owner of the suit property by way of adverse possession. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the plaintiff claimed declaration that he had become owner of the suit property either on the basis of oral sale deed or on the basis of adverse possession. Thus, the plaintiff has taken two inconsistent pleas. Section 54 of the Transfer of property Act, 1882 reads as under:- Sale defined .- " Sale " is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised. Sale how made: Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such R.S.A.No. 3504 of 2010(O&M) 4 person as he directs, in possession of the property. Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” Section 17 (1) (b) of the Registration Act, 1908 reads as under:- Documents of which registration is compulsory: (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and, if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came on comes into force, namely:- (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;” Thus, as per the above provision, sale of immovable property of a value more than ` 100/- can be effected only by way of registered instrument. Thus, the plea of oral sale put up by the R.S.A.No. 3504 of 2010(O&M) 5 plaintiff was liable to be rejected. The other plea taken by the plaintiff that he had become owner by way of adverse possession was also liable to be rejected. In Bhim Singh and others vs. Zile Singh and others 2006 (3) RCR (Civil) 97, it was held as under:- “10. At this stage, it would be relevant to notice the provisions of Article 64 and Article 65 of the Limitation Act as follows : Description of suit Period of limitation Time from which period begins to run Article 64 For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Twelve years The date of dispossession. Article 65 For possession of immovable or any interest therein based on title. Twelve years When the possession of the defendant becomes adverse to the plaintiff. Explanation - For the purpose of this Article - R.S.A.No. 3504 of 2010(O&M) 6 (a) Where the suit is by a remainder-man, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainder-man, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession. 11. Under Article 64 of the Limitation Act, a suit for possession of immovable property by a plaintiff, who R.S.A.No. 3504 of 2010(O&M) 7 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. 3504 of 2010(O&M) 8 plaintiff with regard to his ownership on the basis of an adverse possession. 12. I am supported by a judgment of Delhi High Court in 1993(3) Punjab Law Reporter (Delhi Section) 70 (Prem Nath Wadhawan v. Inder Rai Wadhawan). 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. At this stage, it may also be relevant to notice the relevant portion of paras 134 and 135 of the 3rd report of Law Commission of India as follows : If the defendant wants to defeat the right of the plaintiff, he must establish his adverse possession for over 12 years which has the effect of extinguishing the title of the owner by the operation of Section 28 of the Limitation Act read with Article 144. If he fails to do so there is no reason for non- R.S.A.No. 3504 of 2010(O&M) 9 suiting the plaintiff merely because he was not able to prove possession within 12 years. The inequity of this requirement is illustrated by the following example : If A, B and C are independent and successive trespassers on the property and the suit for possession is brought by the true owner against C, it must fail unless the plaintiff proves his possession within 12 years, though the last trespasser C was not in possession except for a short period." "In our opinion, article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff's prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner's entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law R.S.A.No. 3504 of 2010(O&M) 10 must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he had a subsisting title on the date of suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession." 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 plaintiff has no restriction of R.S.A.No. 3504 of 2010(O&M) 11 limitation to seek possession of immovable property on the basis of his title.” Thus, a suit cannot be filed basing claim on adverse possession and the plea of adverse possession can only be taken in defence. Even otherwise, in the present case, the case of the plaintiff himself is that he was handed over the possession of the suit property by the defendant after execution of the oral sale. Moreover, the plaintiff has failed to prove that a valid sale deed had been executed in his favour. On both the pleas taken by plaintiff, his suit was liable to fail. Since the suit of the plaintiff for declaration had failed, the relief of permanent injunction was also liable to be rejected. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 25, 2011 anita