Joginder Singh and Another vs Balwinder Singh and Others

Ajay Tewari, J.

CM No. 6290-C of 2008

For the reasons recorded, delay of 454 days in filing the present appeal is condoned.

CM stands disposed of.

RSA No. 2083 of 2008

This appeal has been filed against concurrent judgments of the Courts below whereby both the Courts have declined the declaration that the appellants have become owners of the land, even while granting an injunction restraining the respondents from dispossessing the appellants except in due course of law.

The appellants had filed the instant suit claiming that land in dispute was allotted to them under the Punjab Utilisation of Land Act, 1961. They further averred that they were in possession since then and that thereafter their possession became adverse and ripened into ownership. The Courts below have negatived this plea resulting in the present appeal. The following questions have been proposed:

i) Whether the evidence produced by the appellants on the file established the adverse possession of appellants over the suit land?

ii) Whether the appellants are entitled to the relief of declaration as prayed for?

iii) Whether the learned Courts below have not considered the evidence brought on record?

iv) Whether the appellants are entitled to declaration in view of their admitted adverse possession over the land in question?

Learned Lower Appellate Court has considered the fact that the appellants originally claimed to be lessees but were not able to establish that their possession became adverse. Learned Counsel has not been able to persuade me that this finding of fact is either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference u/s 100 CPC.

Apart from this it is now well settled by a catena of decisions of this Court that the plea of adverse possession is not available to a plaintiff. Reference may be made in this regard to RSA No. 998 of 2007, Gurtej Singh v. Zora Singh and Ors. decided on November 17, 2008, wherein this Court held as follows:

... In the case of Bondar Singh and Ors. (supra), no doubt the Hon''ble Supreme Court allowed the suit filed by a person claiming to be in adverse possession, yet it is to be seen from this judgment that no plea was raised at all on behalf of the owners that a suit for claiming title on the basis of adverse possession did not lie. This would be clear from the fact that in para 3 of the judgment in Bondar Singh and Ors. (supra), the Hon''ble Supreme Court held as follows:

The main question for consideration in the present suit is as to whether the plaintiffs were in hostile continuous possession of the suit lands by virtue of which they had perfected their title to the land by adverse possession....

Even in the case of Girja Kumar and Ors.'' case (supra), no plea was taken regarding the maintainability of the suit. The judgment of the Delhi High Court in Manmohan Service Station''s case (supra) does deal with this question to hold that such a suit is maintainable. I, however, find that the judgment of this Court in Bhim Singh and Ors. v. Zile Singh and Ors. 2006 (3) RCR (Civil) 97 considers the judgment of the Delhi High Court and, relying upon an earlier judgment of the Delhi High Court [which was not referred to in Manmohan Service Station''s case (supra)], distinguished the judgment in Manmohan Service Station''s case (supra) and held that such a suit is not maintainable. I am in respectful agreement with the view taken in the case of Bhim Singh and Ors.'' case (supra) and consequently hold that the suit is not maintainable. This appeal is, thus, dismissed with no order as to costs."

Consequently in view of the aforesaid enunciation of law, this appeal is dismissed. No costs.

Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of.