Gurtej Singh vs Zora Singh (Dead) Through Lr & Ors.

The instant appeal, by way of special leave, is directed against order dated 17.11.2008 passed by the High Court of Punjab and Haryana at

Chandigarh in Regular Second Appeal No.998 of 2007 whereby the High Court dismissed the appeal filed by the appellant herein and affirmed the

order passed by the lower appellate Court.

Brief facts in nutshell for proper adjudication of the dispute involved in the present appeal are that the appellant/plaintiff filed a suit for declaration and

injunction seeking a decree that he was owner in possession of land by way of adverse possession. The trial court decreed the suit in favour of the

appellant/plaintiff. On an appeal being preferred by the respondent/defendant, the Additional District Judge set aside the trial court’s order on the

grounds that the remedy of adverse possession is not available to the appellant/plaintiff and the possession of a mortgagee cannot be treated as

adverse to the true owner.

Feeling aggrieved by the order of the Additional District Judge, the appellant/plaintiff preferred a regular second appeal before the High Court, which

dismissed the appeal relying upon the judgment of the Punjab and Haryana High Court in Bhim Singh and others vs. Zile Singh and others, (2006) 3

RCR (Civil) 97, on the ground that the plaintiff cannot sue for title on the basis of adverse possession. The question of limitation and whether a

mortgagee can claim adverse possession was not examined and answered.

Aggrieved by the order of the High Court, the appellant/plaintiff has approached this Court by preferring the present appeal by way of special leave.

Learned counsel for the appellant/plaintiff vehemently contended that the suit for declaration filed by his client could not be dismissed on the ground

that the plea of adverse possession was only available to a defendant as a defence in a suit for possession. In support of his argument, learned counsel

for the appellant relied upon the judgment rendered by this Court in Ravinder Kaur Grewal and others vs. Manjit Kaur and others, (2019) 8 SCC 729

wherein this Court has held that plea of acquisition of title by adverse possession can be taken by the plaintiff. It is highlighted that the other pleas and

contentions of the appellant/plaintiff have not been examined and answered by the High Court.

Per contra, learned counsel for the respondents submits that the appellant cannot claim title on the basis of adverse possession. According to the

learned counsel, it is the respondent who is owner of the suit property and the same is in possession of the appellant as mortgagee and not as an

owner.

Having heard learned counsel for the parties and carefully perusing the records placed before us, we are of the view that the High Court dismissed

the second appeal without framing any question of law and simply relying on the judgment rendered by it in Bhim Singh and others (supra) wherein it

has been held that plea of adverse possession is available only to a defendant and that a suit on the basis of adverse possession would not lie.

However, the High Court has not gone into other issues.

Taking into consideration the fact that this Court in the Ravinder Kaur Grewal case(supra) has considered the judgment in the Bhim Singh case

(supra) and explicitly overruled it, we are of the considered view that the impugned order passed by the High Court should be set aside and the matter

be remanded to the High Court for fresh consideration in accordance with law. Ordered accordingly.

Taking into consideration the facts and circumstances of the present case, we request the High Court to make an endeavour to dispose of the matter

expeditiously.

The appeal stands disposed of accordingly.