Second appeal dismissed against trial and lower appellate Court decrees dismissing a suit for declaration of ownership via adverse possession. This Court held such suits are not maintainable under Articles 64 and 65 of the Limitation Act.
The Second Appeal was dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Regular Second Appeal No. 1069 of 2009 Date of Decision : August 4, 2009
Savitri and others
....Appellants
Versus
Gram Panchayat Sarwarpur and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Amit Jain, Advocate T.P.S. MANN, J.
Suit for declaration filed by the appellants that they had become owners of the suit land by way of adverse possession in equal shares with consequential relief of permanent injunction, was dismissed by the learned trial Court on April 26, 2007, which judgment and decree was upheld in appeal by learned lower appellate Court on September 26, 2008. Aggrieved of the same, the plaintiffs are now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure.
Learned counsel for the appellants has submitted that the suit land is in the possession of the appellants from generation to generation since the year 1940 and they have also constructed a dhani upon the suit land. In the revenue records the suit land was shown as jumla malkan, whereas Shankar and Sultan-defendants never cultivated the same. Therefore, the appellants had become owner of the suit property by way of adverse possession.
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From jamabandi Ex.P1 for the year 1963-64, it is apparent that the suit land was shown to be under the ownership of Jumla Malkan Digar Hakdaran Arazi Hasab Rasad Rakba Khewatdar and the name of Sultan mentioned in the column of possession. Again, in jamabandi Ex.P2 for the year 1998-99, the Gram Panchayat was shown to be the owner of the suit land and Shankar in possession thereof as gair marusi . The proceedings under Section 7(1) of the Punjab Village Common Lands (Regulations) Act, 1961 were initiated by the Gram Panchayat against Shankar for his ejectment. While filing his written statement, Shankar admitted himself to be in its unauthorized possession and, accordingly, he was ordered to be ejected from the suit land. It establishes the fact that the plaintiffs-appellants were never in possession of the suit land. Though the plaintiffs filed an application for correction of the khasra girdawari with regard to the suit land, yet their application was dismissed on 18.11.2004. The plaintiffs also relied upon the order dated 18.3.2008 passed by Assistant Collector, Fatehabad, wherein it was mentioned that the appeal filed by them against the order dated 18.11.2004 stood accepted. The fact remains that this is an ex parte order and, that too, passed during the pendency of the present civil proceedings. Even in the proceedings relating to correction of khasra girdawari , the plaintiffs did not take the plea of adverse possession.
The plaintiffs had sought declaration that they had become owners of the suit land by way of adverse possession. The plea of adverse possession can be raised in defence in a suit for recovery of possession, but the relief of declaration that the plaintiff has become absolute owner cannot
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be claimed in view of the provisions of Articles 64 and 65 of the Limitation Act, 1963. In Bhim Singh and others Vs Zile Singh and others 2006(3) PLR 159, it was observed as follows:-
“Therefore, it must follow that the intention behind Article 65 is clear and unambiguous, i.e., not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title”.
The above proposition of law was also reiterated in Dewaki and
others Vs Dayawanti and others 2006(3) R.C.R.(Civil) 75 and Himat Rai Vs Kehar Singh 2 008(4) PLR 624.
Applying the dictum of law, the present suit filed by the plaintiffs for a similar relief on the basis of their adverse possession cannot be entertained and the suit is held to be not maintainable.
The concurrent findings of facts arrived at by the learned Courts
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below, do not suffer from any illegality or infirmity. None of the findings could be termed as perverse. These findings cannot be interfered with in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The substantial questions of law, which have been formulated by learned counsel for the appellants, do not arise for determination. The appeal is, accordingly, dismissed in limine.
August 4, 2009 ajay-1
( T.P.S. MANN ) JUDGE
To be referred to the Reporters; Yes.
1 issue framed by the court
Whether a suit can be maintainable for a declaration that the plaintiff has become the absolute owner of the suit land by way of adverse possession under Articles 64 and 65 of the Limitation Act, 1963
Colour shows how this judgement treated each authority
Bhim Singh and others Vs Zile Singh and othersRelied on¶16
2006(3) PLR 159
Dewaki and others Vs Dayawanti and othersRelied on¶18
2006(3) R.C.R.(Civil) 75
Himat Rai Vs Kehar SinghRelied on¶19
2008(4) PLR 624
2 provisions across 2 enactments
Savitri and others
Gram Panchayat Sarwarpur and others
T.P.S. MANN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
