Kashmir Singh vs Gram Panchayat and Others

L.N. Mittal, J.

CM No.22444-CII of 2009

Allowed as prayed for.

Main Case.

Kashmir Singh-plaintiff has invoked the jurisdiction of this Court under Article 227 of the Constitution of India impugning order dated 04.05.2009 Annexure P-4 passed by learned Civil Judge (Junior Division), Sirsa thereby allowing application Annexure P-2 moved by defendant-respondent No. 1-Gram Panchayat and thereby rejecting the plaint under Order 7 Rule 11(d) of the CPC (in short, CPC)

Petitioner Kashmir Singh has filed suit vide plaint Annexure P-1 impleading respondent No. 1 as defendant No. 1 and proforma respondent Nos. 2 to 4 as proforma defendants No. 2 to 4. The plaintiff sought declaration that he and proforma defendants No. 2 to 4 have become owners of the suit land measuring 7 kanals 7 marlas by adverse possession. The plaintiff alleged that they are cultivating the suit land for more than 12 years before filing of the suit as co-sharers in the capacity of tenant on 1/3rd batai. Possession of plaintiff and proforma defendants is hostile for more than 30-35 years and they are not paying any batai to defendant No. 1 and, therefore, they have become owners of the suit land by adverse possession.

Defendant No. 1 moved application Annexure P-2 under Order 7 Rules 10 and 11 CPC for dismissal of the suit by rejection of plaint alleging that the plaint does not disclose any cause of action as the plaintiff is seeking relief of being owner by adverse possession, but at the same time, seeking relief on the basis of being co-sharers and also alleging possession as tenant on payment of 1/3rd batai. It was also alleged that no prior notice was given to defendant No. 1 before instituting the suit, as required by Section 205 of the Haryana Panchayati Raj Act. It was also alleged that civil Court has no jurisdiction to decide the suit in view of Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961.

The plaintiff by filing reply Annexure P-3 controverted the averments of the applicant-defendant No. 1.

Learned Trial Court vide impugned order Annexure P-4 has allowed application under Annexure P-2 and has rejected the plaint Order 7 Rule 11(d) CPC. Feeling aggrieved, plaintiff has preferred the instant revision petition.

I have heard Learned Counsel for the petitioner and perused the case file.

Learned Counsel for the petitioner contended that the trial Court has held that suit for declaration of ownership on the basis of adverse possession is not maintainable, although no such ground was even taken in application Annexure P-2. I have carefully considered this contention, but the same cannot be accepted. This Court in two judgments i.e. Bhim Singh and Ors. v. Zile Singh and Ors. 2006 (3) CCC 479 and Dewaki and Ors. v. Dayawanti and Ors. 2006 (3) CCC 615, has categorically held that suit seeking declaration of ownership on the basis of adverse possession is not maintainable and adverse possession can be set up only as defence. In view of the said judgments, plaintiff''s suit seeking declaration of ownership on the basis of adverse possession is barred by law and the plaint has, therefore, been rightly rejected under Order 7 Rule 11(d) CPC.

In addition to the aforesaid, perusal of plaint Annexure P-1 reveals that the plaintiff is not aware of capacity or status of alleged possession of plaintiff and proforma defendants over the suit land. The plaintiff has made self-contradictory averments in the plaint. The plaintiff claims possession of himself and proforma defendants over the suit land to be adverse. The plaintiff also claims their possession to be as cosharers. The plaintiff also claims their possession to be as tenants on payment of 1/3rd batai. The plaintiff also alleges that no batai was being paid by them. In these circumstances, it can be safely said that the plaintiff has no cause of action to seek declaration that he and proforma defendant Nos. 2 to 4 have become owners of the suit land by adverse possession. If their possession was as cosharers or as tenants, the same could not be adverse so as to ripen into ownership. Even if batai was payable, but was not being paid, the status of plaintiff and proforma defendants would remain as tenants and their possession would not become adverse merely because they were not paying batai, although it was payable. Even if possession of plaintiff and proforma defendants was as cosharers, the same cannot become adverse possession. Thus examined from any angle, the plaintiff''s suit could not be proceeded and averments made in the plaint did not disclose any cause of action to grant the relief claimed by the plaintiff in the suit. In application Annexure P-2, defendant No. 1 has specifically raised the aforesaid plea which is fully borne out from a bare reading of plaint Annexure P-1. Accordingly, for this added reason as well, the plaint is laible to rejection.

In view of aforesaid discussion, I find that the plaint has been rightly rejected by the trial Court. The impugned order does not warrant interference in exercise of revisional jurisdiction. The revision petition is accordingly dismissed in limine being devoid of merit.