RSA No.3132 of 2008 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. RSA No.3132 of 2008 (O&M) Decided on 24.8.2010. Smt.Santosh Rani and another --Appellants vs. Bharat Raj and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Lokesh Sinhal,Advocate, for the appellants Mr.G.P.Singh,Advocate,for the respondents Rakesh Kumar Jain, J, (Oral) The plaintiffs are in second appeal against the judgment and decree of first Appellate Court dated 27.8.2008 by which the judgment and decree of the learned trial Court has been reversed. The substantial question of law involved in this appeal is:- “Where the title of the plaintiffs to the property in dispute is not under cloud but they are out of possession, whether the plaintiffs are required to file a suit for declaration and possession or only a suit for possession” ? The history of this case on being traced from an earlier litigation RSA No.3132 of 2008 (O&M) 2 between the parties is that the plaintiffs had filed a Civil Suit No.148 of 12.6.1989 against Surjan (since deceased) predecessor- in-interest of the defendants seeking a decree for permanent injunction claiming themselves to be owners in possession of a residential plot No. 62 measuring 36ft x21 ft alongwith Gosha Shumal Garbi 30ft x 10 f. The pleaded case of the plaintiffs was that Jai Chand, predecessor-in-interest of the plaintiffs had purchased the property in dispute from Jagdish Chand etc. by way of registered sale deed dated 4.7.1984 against a sale consideration of Rs.1500/-. Jai Chand died in a road accident on 6.7.1986. Thereafter, the plaintiffs being his legal heirs have been continuing in possession as owners of the property in dispute. The defendants' case was that Jagdish Chand had surrendered possession of the plot in dispute to defendant No.1 and 14 others on 17.7.1964 for residential purpose. Defendant No.1. had constructed kothas and khurlis and are tethering their cattle on the property in dispute. In this suit, following issues were framed 11.4.1990:- 1. Whether Shri Jai Chand husband of plaintiff No.1. and father of plaintiff No.2. had purchased a plot No.62 detailed in paraNo.1 of the plaint. If so its effect ? OPP 2. Whether the plaintiffs became owners in possession of the plot in suit as alleged in para No.2 of the plaint. If so its effect ?OPP 3. Whether the suit for permanent injunction is not maintainable ? OPD 4. Whether the sale deed dated 4.7.1984 is illegal, void and not binding upon the defendants. If so its effect ? OPD RSA No.3132 of 2008 (O&M) 3 5. Whether the defendants are in possession on the basis of agreement dated 17.7.1964 ? OPD 6. Whether the plaintiffs are estopped from filing the suit ?OPD 7. Whether the defendants have become owners by way of adverse possession as alleged in para No.5 of PO ? OPD 8. Whether the suit is time barred ? OPD 9. Whether the plaint has not been properly valued for the purpose of court fee and jurisdiction ? OPD 10. Relief: The learned trial Court vide its judgment and decree dated 25.3.1994 decreed the suit after holding that the plaintiffs are owners in possession. The defendants filed Civil Appeal No.27 of 1994 which was dismissed by the learned Addl. District Judge, Gurgaon dated 18.1.1997. The defendants then filed R.S.A. No.725 of 1997 which was allowed by this Court by setting aside the finding of the trial Court on issue Nos. 2 and 3 observing that the plaintiffs are not in possession, therefore, injunction cannot be granted. However, the finding regarding issue No.1 about the ownership of the plaintiffs was not disturbed. The matter then went to the Supreme Court in S.L.P. which was dismissed. After culmination of the aforesaid round of litigation, the plaintiffs filed Civil Suit No. 515 of 18.5.1998 seeking a decree for possession on the ground of their title which has already been established in the earlier litigation. RSA No.3132 of 2008 (O&M) 4 In reply, the defendants had claimed their title on the basis of adverse possession alleging that Jagdish Chand had already surrendered possession of the property in dispute to them on 17.7.1964 before the execution of the sale deed dated 4.7.1984. In this suit, following issues were framed on 4.3.1999:- 1. Whether the plaintiffs are owners of the plot in dispute mentioned in para No.1 of the plaint ? OPP 2. Whether the plaintiffs are entitled to possession of the plot in question ? OPP 3. Whether the suit is barred by adjudication ? OPD 4. Whether the suit is bad for mis-joinder and non- joinder of necessary parties ?OPD 5. Whether the plaintiffs have no cause of action to file the present suit ? OPD 6. Whether the plaintiffs have no locus standi to file the present suit ? OPD 7. Whether the suit is barred by limitation ? OPD 8. Whether suit is not properly valued for proper court fee and jurisdiction ? OPD 9. Whether the plaintiffs are barred by their act and conduct from filing the present suit ? OPD 10. Relief: In order to prove their claim, the plaintiff Santosh Kumari had appeared as PW-1, examined Jagdish Chand as PW- 2 and also tendered in evidence Ex.P-1 site plan and Ex.P-2 sale deed. On the other hand, defendants examined Attre Singh RSA No.3132 of 2008 (O&M) 5 as DW-1, Maman as DW-2 and Ram Niwas son of Surjan as DW- 3 but did not lead any evidence. In rebuttal, the plaintiffs tendered certified copy of judgment dated 25.3.1994 Ex.PX, certified copy of judgment dated 1.1.1997 Ex.PY, certified copy of judgment dated 21.1.1998 Ex.PZ and certified copy of S.L.P. Ex.PZ/1. Learned trial Court decreed the suit of the plaintiffs on the ground that title of the plaintiffs has already been established in the earlier litigation and since they are out of possession, they have every right to recover possession from the defendants who have no better title than the plaintiffs. However, the judgment and decree of the trial Court was reversed by the first Appellate Court vide its judgment and decree dated 27.8.2008 on the sole ground that the suit filed by the plaintiffs for possession was not maintainable as they have not sought a decree for declaration. The learned Court below had relied upon a decision of the Apex Court in the Case of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs & Ors (2008) 4 SCC 594. Learned counsel for the appellants have submitted that the learned Appellate Court has committed a grave error of law while applying the ratio of the decision in the case of Anathula Sudhakar (Supra) to the facts and circumstances of the present case in reversing the judgment and decree of the trial Court. He has submitted that a suit for declaration is required to be filed for seeking possession if the title of the plaintiff is under cloud, but if the title of the plaintiff is not under cloud, then suit for possession RSA No.3132 of 2008 (O&M) 6 is the only remedy. In reply, learned counsel for the respondents has submitted that since the judgment and decree in the earlier suit passed by the trial Court and the first Appellate Court (Exs. PX and PY) have been set aside by this Court in Regular Second Appeal No.725 of 1997 vide its judgment and decree (Ex.PZ) , the findings recorded in the earlier suit cannot be read and since the defendants have been coming in possession since long under the agreement dated 17.7.1964 and their possession is open, hostile and continuous for a period of more than 12 years, they had acquired ownership right by virtue of principle of adverse possession. Thus, learned counsel has submitted that simple suit for possession filed at the instance of the plaintiffs was not maintainable and they were required to file a suit for declaration and also for possession. From the arguments raised by learned counsel for the parties, the substantial question of law has arisen which has been noticed by this Court in the opening part of this judgment. The question arises as to what is the mandate of law in respect of remedy to recover possession from the defendants. In the case of Anathula Sudhakar (Supra), the Appellate Court has clearly laid down certain circumstances in which various types of suits could be filed:- (i) where title of the plaintiff is not disputed but plaintiff is not in possession, his remedy is to file a suit for possession and seek in addition, if any, an injunction; RSA No.3132 of 2008 (O&M) 7 (ii) where the plaintiff is out of possession,he cannot seek relief of injunction simpliciter without claiming relief of possession (iii) where the plaintiff is in possession but his title to the property is in dispute or under a cloud or where the defendant asserts title thereto and there is also a threat for dispossession from the defendant, the plaintiff will have to sue for declaration for title and consequential relief of injunction; and (iv) where title of the plaintiff is under cloud or in dispute or he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. The Supreme Court has also clarified that a prayer for declaration will be necessary in case of denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property in question. A cloud is said to raise over a person's title, when some apparent defect is there in his title to the property, or when some prima facie right of a third party over it is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property. In the present case, the plaintiffs have already established their title on the basis of registered sale deed in their favour in the earlier litigation. To my mind, there was no cloud on the title of the plaintiffs because Jagdish Chand, vendor of the property in dispute, who had sold it to Jai Chand, predecessor- in-interest of the plaintiffs himself had appeared in the witness box as PW-2 and proved the sale deed. This aspect has been RSA No.3132 of 2008 (O&M) 8 thoroughly dealt with by the Civil Court in the earlier litigation in Civil Suit No.148 dated 12.6.1989 where the plaintiffs have been held to be the owners of the property in dispute but since they failed to prove their possession over the suit property, therefore, the Court below had declined to give them relief of permanent injunction. Thus, the only remedy with the plaintiffs was to file suit for possession and not a suit for declaration and possession as held by the learned Appellate Court. In view of the aforesaid discussion, the question posed in the present appeal is answered in favour of the plaintiffs/appellants and it is held that in the case where there is no cloud on the title of the plaintiffs over the property in dispute and they are out of possession, the only remedy is to file a suit for possession and not a suit for declaration and possession. In this view of the matter, the present appeal is allowed and the judgment and decree of the first Appellate Court is set aside with costs through out. 24.8.2010 (Rakesh Kumar Jain) RR Judge