Jai Chand & Anr. v. Tek Chand & Ors.

Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. C.B.Goel, Advocate for the appellants. Mr. R.M.Singh, Advocate for the respondents ... Rakesh Kumar Garg,J.(Oral) This is defendants' second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondents for declaration of their title on the plea of adverse possession with consequential relief of permanent injunction was decreed. As per the averments made in the plaint, the property in dispute is an agricultural land measuring 23 Kanals 19 Marlas but the plaintiff-respondents claimed in the suit that they are the owners in possession of the suit land by way of adverse possession. It was their case that Ramji Lal, their predecessor-in- interest had been occupying the suit land as owner thereon openly, peacefully, as of right and under a hostile title during his life time and after his death, the plaintiffs being his successor-in-interest are in possession of the suit land as owners thereon by way of adverse possession for the last thirty years. It was the further case of the plaintiffs that the defendants were recorded as owners of the suit land in the ownership column of the jamabandi but defendants have not tried to disturb plaintiffs' peaceful possession during the last thirty years and thus the plaintiffs have become the owners of the suit land. Since the defendants were threatening to dispossess them at the instance of defendant No.2 and 21, RSA No. 2803 of 1985 2 the necessity arose to file the present suit. The suit was contested by defendant Nos.2 and 21 only by filing separate written statements. In the written statements, defendants controverted the various pleas of the plaintiffs. The defendants have denied the plea of the plaintiffs. On the pleadings of the parties, the following issues were framed:-

1. Whether the plaintiffs are the owners in possession of the suit property ?OPP

2. Whether the suit is not maintainable as alleged by the defendant in the preliminary objections ?OPD-2

3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction ?OPD

4. Whether the suit is false and frivolous, if so its effect ? OPD

5. Whether the plaintiffs have no locus standi to file the suit ?OPD

6. Relief.” No other issue was claimed or pressed by any of the parties. After hearing learned counsel for the parties and appreciating the evidence on record, the courts below held that the plaintiff-respondents have become owners of the suit land by way of adverse possession and have been in possession of the same and resultantly, the suit was decreed. In the instant appeal, which was admitted for regular hearing vide order dated 21.11.1985, learned counsel for the appellants has submitted that the following substantial questions of law arise for consideration of this court:-

1. Whether the plaintiff can seek declaration of title of ownership claiming to be in adverse possession of the suit property ?

2. Whether the judgment and decree of the courts below suffer from patent illegality being based on misreading and misconstruing the evidence on record while holding the plaintiffs to be in possession when in most of the revenue records either the land is recorded to be vacant(khali) or /and recorded as banjar kadim ?

3. Whether under the facts and circumstances of the present case, RSA No. 2803 of 1985 3 judgments and decree of the courts below are legally sustainable ? In support of this appeal, learned counsel for the appellant has vehemently argued that the suit filed by the plaintiff-respondent for declaration of their title on the plea of adverse possession is not maintainable as held by this court in Bhim Singh and others Versus Zile Singh and others 2006(3) RCR Civil 97 and State of Haryana Versus Mukesh Kumar and others (RSA No.3909 of 2008) decided on 17.3.2009 and has thus argued that the impugned judgment and decrees are liable to be set aside. Learned counsel for the appellants has further argued that findings of the courts below holding the plaintiff-respondents as owner in possession of the suit property are also liable to be set aside. On the other hand, Mr. R.M. Singh, learned counsel for the respondents has supported the impugned judgment and decree and has argued that on the basis of evidence on record, the plaintiff-respondents are found to be owners in possession and the said judgment and decrees are to be maintained. However, Mr. R.M. Singh, learned counsel for the plaintiff-respondent was unable to controvert the law laid down by this court in Bhim Singh's case(supra) . On the basis of the arguments raised by learned counsel for the parties, the following substantial question of law arises in this appeal:- “Whether the suit filed by the plaintiff-respondents for declaration of title on the basis of adverse possession is maintainable? In view of the authoritative pronouncement of this court, the suit for declaration of title on the plea of adverse possession is not maintainable. This appeal deserves to be allowed as it is not in dispute that plaintiff-respondents have filed the instant suit only on the plea of adverse possession which was not maintainable. The substantial question of law which arises in this appeal is answered in favour of the appellants and against the plaintiff-respondents holding that the suit of plaintiff's was not maintainable. RSA No. 2803 of 1985 4 Consequently, the impugned judgment and decrees are set aside and the suit is ordered to be dismissed. No costs. December 1, 2010 (RAKESH KUMAR GARG) JUDGE RSA No. 2803 of 1985 5 as discussed above in view of the authoritatively laid down in Bhim Singh's case (supra), wherein it has been held that suit for declaration of title on the plea of adverse possession is not maintainable?