September 10 v. Rajiv Kumar & Ors.

HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Kul Bhushan Sharma, Advocate, for the appellant Mr. G.S.Gandhi, Advocate, for respondents No. 1 and 2 *** GURDEV SINGH, J. The appellant-defendant No. 1, Sher Singh, has preferred this second appeal against the judgment and decree dated 28.1.2010 passed by Additional District Judge, Rewari, vide which he dismissed the appeal preferred by this defendant against the judgment and decree dated 12.8.2008 passed by Additional Civil Judge(Senior Division)Rewari, vide which he decreed the suit of the plaintiffs -respondents No. 1 and 2 for the possession of the property in dispute measuring 4 square yards marked as ABCD in the site plan attached with the plaint. The plaintiffs pleaded in their plaint that they are the owners in possession of the non-residential plot measuring 184 Square yards, located R.S.A.No. 1656 of 2010(O&M) -2- at Rest House Road, Willson Gang Bazar, Bewal, District, Rewari, having purchased the same from one Ganga Deen, vide registered sale deed dated

15.1.1991, which had fallen to his share in the family partition and which was confirmed in civil suit No. 436/1959, titled as Ganga Deen vs. Lala Bal Mukand, decided on 9.6.1960. The defendants Sher Singh, Lal Chand, Jagdish, Ram Kumar, Karan, Prakash and Bansi, sons of Banwari Lal Saini, unauthorisedly placed one wooden khokha (hereinafter referred to as the “tin shed”) on this plot,covering an area of 4 sq. yards, without any legal right, title or interest. They asked those defendants to remove the same upon which they filed suit for declaration and permanent injunction against them claiming the ownership of the land covered by the tin shed. That suit was dismissed by Civil Judge(Senior Division), Rewari. Even after the dismissal of that suit, the defendants have not removed that tin shed. The claim of the plaintiffs was contested by the defendants, who filed written statement contending therein that the plaintiffs are not the owners in possession of the property in dispute. The sale deed and the decree, so mentioned in the plaint, are illegal, null and void and not binding upon them. That sale deed and the decree do not confer any right, title or interest on the plaintiffs. They are coming in possession of the portion on the Northern side of the tin shed and their water tap also exists there. Previously, their father was tenant in the disputed property owned by Bal Mukand and after his death all his legal heirs had become tenant. The plaintiffs have no locus standi to file the suit and the same is not maintainable. The following issues were framed:-

1. Whether the plaintiffs are entitled for a decree for possession R.S.A.No. 1656 of 2010(O&M) -3- 4 Sq. yard land which shown in red colour in the site plan? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Whether the plaintiffs have no cause of action to file and maintain the present suit? OPD

4. Whether the plaintiffs are estopped from filing the preset suit by their own act and conduct? OPD

5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

6. Whether the suit is time barred? OPD

7. Whether the Civil Court has no jurisdiction to try and entertain the present suit? OPD

8. Relief. On the basis of the evidence produced by both the sides and after hearing counsel on their behalf learned Trial Court decided all the issues in favour of the plaintiffs and resultantly decreed their suit for possession. One of the defendant; namely the present appellant, preferred the first appeal against that judgment and decree but the same was dismissed, vide aforesaid judgment. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the defendant- appellant that the following substantial question arises in the present appeal:- “Whether the suit of the plaintiffs is within limitation.” To elaborate, he contended that in the previous suit, which was R.S.A.No. 1656 of 2010(O&M) -4- admittedly filed in the year 1990 by the defendants against the present plaintiffs and Ganga Deen, the defendants claimed adverse possession. Though they did not succeed in that civil suit, yet it is to be taken that if their possession was not adverse prior to 1990, the same became adverse from the date of the filing of the suit when they started claiming the suit property and asserted that their possession was hostile, open, continuous and to the knowledge of the plaintiffs. 12 years had already passed when the present suit was filed and as such on account of that adverse possession, the suit cannot be said to be within limitation. On the other hand, it has been submitted by learned counsel for the plaintiffs that the plaintiffs are coming on the basis of the title and as such there is no limitation for filing the suit for the recovery of possession. The defendant-appellant cannot take the benefit of his previous contention taken in the other suit that his possession and the possession of the other defendants was adverse as in the present suit they never claimed any such adverse possession and have come up with the plea of tenancy. Therefore, it cannot be said that any such substantial question of law regarding the limitation arises. In view of the stand taken up by the defendants in the present suit, it cannot be said that the above said substantial question of law arises. It is their specific plea that previously their father Bal Mukand was the tenant in the property in dispute and after his death all his legal heirs became the tenant. Once the plea of tenancy has been taken, the defendants are estopped from denying the title of their land lord/plaintiffs. As such R.S.A.No. 1656 of 2010(O&M) -5- no such question of limitation arises. When no such substantial question of law arises, this appeal cannot be allowed and the same is hereby dismissed. (GURDEV SINGH) JUDGE September 10, 2010 PARAMJIT