Allowed

(O&M) Banto v. Ajmer Singh and Ors.

Punjab & Haryana HC27 Oct 2025RSA/2349/1990

Case brief

AI extract

What is this about?

Co-owner sued for possession alleging tenancy; tenancy not proved but defendants' adverse possession also unpleaded. High Court held plaintiff could recover possession on title, and res judicata / Order II Rule 2 bars were wrongly applied since earlier litigation concerned trees and its pleadings were never produced. Appeal allowed; decree for possession granted.

What did the court decide?

Judgments and decrees below set aside; decree for possession in favour of plaintiff-appellant; defendants to hand over vacant peaceful possession within 60 days.

(O&M) Banto Vs Ajmer Singh and Ors. — Property and Title | Punjab & Haryana HC (2025)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-2349-1990 (O&M)

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Banto @ Santo @ Palo

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. . . . Appellant

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Vs.

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Ajmer Singh (died) and Others . . . . Respondents

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Reserved on: 15.10.2025 Pronounced on: 27.10.2025

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CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA

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Argued by:- Mr. S.S. Swaich, Advocate and Ms. Ishani Goyal, Advocate for the appellant.

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Mr. Vikas Singh, Advocate for the respondents.

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DEEPAK GUPTA, J.

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It is the plain"ff’s appeal against the concurrent findings of the Courts below, whereby her suit for possession of the house in dispute, as detailed in the headnote of the plaint, was dismissed by the trial Court on 17.12.1987, and the appeal thereagainst was dismissed by the first Appellate Court on 20.09.1990.

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To avoid confusion, par"es are referred to as per their status before the trial Court. The trial Court record has been called and perused.

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Pleadings:

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According to the plain"ff, the suit property comprises a par"ally built-up house situated in Khasra No. 83-239/11, as per Jamabandi for the year 1977-78, located in Village Saini Majra (Prem Garh), Tehsil Kharar, District Ropar. The said house was constructed and owned by her father, Nikka Singh, and

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NEETIKA TUTEJA 2025.10.28 10:08 I attest to the accuracy and integrity of this document

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RSA-2349-1990 (O&M)

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devolved upon her a:er his death. It was further pleaded that the house was leased to the defendants on 01.03.1979 at a rent of ₹10/- per annum, but they defaulted in payment from 01.09.1983 onwards. A no"ce dated 11.04.1984 was issued termina"ng the tenancy and demanding possession, which the defendants failed to deliver, resul"ng in the present suit.

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The defendants contested the suit, asser"ng that Nikka Singh never resided in Village Saini Majra, but in Village Chao Majra. While not dispu"ng that Nikka Singh’s property devolved upon the plain"ff and her sisters, they denied receipt of any no"ce and claimed that in earlier li"ga"on, the plain"ff had relinquished her rights in her father’s estate, rendering the present suit not maintainable.

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Findings of the Trial & First Appellate Court:

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5.1 A:er framing of issues and apprecia"on of evidence, the trial Court found that Nikka Singh was indeed the owner and builder of the suit property, which a:er his death in 1951-52, devolved upon his five daughters, including the plain"ff, giving her a 1/5th share. The Court, however, held that there was no proof of any tenancy between the plain"ff and defendants, as the evidence showed that defendants had forcibly occupied the house around the "me of Nikka Singh’s death, nearly 40 years earlier. Angrej Kaur, one of the plain"ff’s sisters, admi@ed in her deposi"on that the defendants were in possession since then. However, it was also observed that there was neither any plea nor evidence that defendants had become owner of the suit property by way of adverse possession.

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5.2 The trial Court further held that although the plain"ff was a coowner, she could not base her claim for possession on termina"on of tenancy, as no tenancy was proved. Since the suit for possession was not founded on "tle but on alleged lease termina"on, it was held to be not maintainable. The plea regarding the bar under Order II Rule 2 or Order XXIII Rule 1 CPC was rejected, as pleadings from the earlier suit were not produced, and that suit per-

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RSA-2349-1990 (O&M)

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tained to a permanent injunc"on concerning trees and not to the present property. Consequently, the suit was dismissed on 17.12.1987.

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The first Appellate Court affirmed the findings that Nikka Singh was the original owner and that the house was inherited by his daughters, including the plain"ff. It also concurred that no evidence established any lease between the plain"ff and the defendants, whose possession dated back to 1951-52. However, the Appellate Court held that the suit was barred either under Order II Rule 2 CPC, if the property was not included in the earlier suit, or by res judicata, if it was included. The appeal was accordingly dismissed on 20.09.1990.

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Conten�ons of Appellant – Plain�f:f

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Assailing the above concurrent findings, learned counsel for the appellant has raised two principal conten"ons:

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�� Once it was found that the plain"ff and her sisters inherited the property of Nikka Singh, the suit could not have been dismissed merely because the tenancy was not proved. Since defendants’ possession was held to be forcible, the plain"ff was en"tled to possession on the strength of ownership. Reliance is placed on Bhagwa� Prasad v. Chandramaul , AIR 1966 SC 735.

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�� The bar of res judicata or Order II Rule 2 CPC was wrongly applied. As the pleadings of the earlier suit were neither produced nor proved, these provisions could not be invoked. Reliance is placed on Jayan�lal Chimanlal Patel v. Vadilal Purusho$amdas Patel , AIR 2017 SC 1197 . It is further urged that the earlier li"ga"on of 1957, which ended in compromise, related only to an injunc"on regarding trees on land other than the present suit property. Hence, the present claim is not barred under Order II Rule 2 or Order XXIII Rule 1 CPC.

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III. Conten�ons of Respondents - Defendants:

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RSA-2349-1990 (O&M)

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On the other hand, learned counsel for the respondents has supported the concurrent findings, contending that the plain"ff having failed to prove tenancy, was not en"tled to possession. It is further argued that the plain"ff had relinquished her rights in her father’s estate upon receiving ₹4,000/- in the previous li"ga"on, thereby disen"tling her from maintaining the present suit. With these submissions, dismissal of the appeal has been sought.

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This Court has considered submissions of both the sides and have perused the record carefully.

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Issues Involved:

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Short issues for decision are — (i) Whether the plain"ff, who is found to be one of the heirs of the deceased owner Nikka Singh, is en"tled to possession of the suit house on the strength of "tle; (ii) Whether the present suit is barred by res judicata / Order II Rule 2 CPC by reason of the earlier li"ga"on relied upon by the respondents.

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Established Facts:

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There is no ground to interfere with the concurrent findings of fact recorded by the Courts below that it was Nikka Singh, father of the plain"ff, who had constructed the house in dispute, and that a:er his death, the property devolved upon his five daughters including the plain"ff. These findings rest on a proper apprecia"on of the evidence on record. It also stands established that the plain"ff failed to prove the alleged tenancy said to have been created in favour of the defendants in 1979. The evidence further reveals that the defendants have been in possession of the suit property since around 1951–52, immediately a:er the death of Nikka Singh. However, the defendants have neither pleaded nor proved acquisi"on of ownership by way of adverse possession.

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En�tlement of plain�ff to seek possession on basis of �tle:

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RSA-2349-1990 (O&M)

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In this background, the central issue that arises for determina"on is whether the plain"ff, despite failing to establish tenancy, would nonetheless be en"tled to recover possession of the suit property on the strength of her ownership rights.

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A similar ques"on came up before the Hon’ble Supreme Court in Bhagwa� Prasad v. Chandramaul, AIR 1966 SC 735 , wherein it was observed that when the defendant admits the "tle of the plain"ff and sets up a specific plea regarding the nature of his possession, and both par"es lead evidence on that basis, the rela"onship between them can only be that of landlord and tenant, or of owner and licensee. If tenancy is not proved but the plain"ff’s ownership is established, and the defendant’s possession is permissive, the plain"ff cannot be denied relief of possession merely because the exact nature of the permission could not be proved. Once it is clear that possession was not hos"le, the plain"ff’s right to recover possession as owner follows as a ma@er of law.”

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Applying the above principle, it is evident that since the plain"ff’s "tle to the suit property stands proved and the defendants have not claimed adverse possession, their occupa"on cannot be treated as hos"le to the plain"ff’s ownership.

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Maintainability of the suit:

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It is also evident that there was no necessity for the plain"ff to ins"tute a separate suit for possession on the basis of ownership, once her "tle stood established. In this regard, Hon’ble Supreme Court in Bhagwa� Prasad (supra) has observed that where the plain"ff seeks ejectment of a defendant alleging tenancy, but the tenancy is not proved and at the same "me, the evidence nonetheless shows that the defendant is in possession as a licensee or by permission of the owner, a decree for possession can s"ll be granted. The Supreme Court further clarified that while the importance of pleadings cannot be ignored, the Court is not precluded from gran"ng appropriate relief if both par"es have understood the real controversy and have led evidence on that is-

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RSA-2349-1990 (O&M)

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sue. In such circumstances, insis"ng on a separate suit would amount to a mere procedural formality serving no purpose.

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Applying this principle to the present case, once it is established that the plain"ff is a co-owner of the suit property and the defendants are in permissive or unlawful possession without any plea or proof of adverse possession, there remains no legal impediment to grant her possession based on ownership. Consequently, even in the absence of a proved tenancy, the plain"ff, as a co-owner, remains en"tled to seek possession based on "tle. The Courts below, therefore, erred in law in declining the relief of possession despite the plain"ff’s proved "tle.

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Bar under Sec�on 11 CPC:

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Coming to the plea of bar on the present suit on account of earlier li"ga"on, it may be no"ced that the defendants themselves admi@ed in their wri@en statement that the suit property was not part of the previous li"ga"on. Once that is so, the First Appellate Court erred in observing that the khasra number of the present property might have been inadvertently omi@ed in the earlier case. Consequently, Sec"on 11 of the CPC was not applicable.

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Bar under Order II Rule 2 CPC:

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S"ll further, the judgment dated 18.02.1958 (Ex.D2) and decree dated 18.02.1958 (Ex.D3) in Civil Suit No.17 of 1957 "tled “Smt. Banto vs. Ajmer Singh and others” reveal that the earlier suit was filed by the same plain"ff seeking a decree of permanent injunc"on to restrain the defendants from cut"ng and removing trees standing on the land involved in that suit, and in the alterna"ve, for joint possession of her share therein. The said li"ga"on culminated in a compromise before this High Court on 24.03.1967 in RSA No.881 of 1958 (Ex.D1), whereby the plain"ff accepted an amount of ₹4,000/- regarding that dispute.

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RSA-2349-1990 (O&M)

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It is, therefore, evident that the earlier li"ga"on concerned only the trees standing on the land involved therein. The pleadings of that suit were never produced or proved on record. In such circumstances, the First Appellate Court commi@ed a grave error in applying Order II Rule 2 CPC, which had no applicability. Likewise, since the compromise was confined to the dispute over trees, there could be no bar to the present suit under Order XXIII Rule 1 CPC.

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In Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 , the Hon’ble Supreme Court held that a plea of bar under Sec"on 11 or Order II Rule 2 CPC, being a technical one, must be established sa"sfactorily by the defendant through produc"on and proof of the pleadings of the earlier suit. Such a bar cannot rest on presump"ons or inferences. Similarly, in Jayan�lal Chimanlal Patel (supra ), the Supreme Court reiterated that without producing and proving the plaint of the earlier suit, the bar under Order II Rule 2 CPC cannot be invoked.

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The foregoing discussion clearly establishes that the property involved in the present case is dis"nct from that of the earlier suit, and the causes of ac"on are en"rely different. In the absence of the pleadings of the previous li"ga"on, the finding of the First Appellate Court that the present suit was barred under Order II Rule 2 CPC, or Sec"on 11 CPC, or Order XXIII Rule 1 CPC is erroneous and is hereby set aside.

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Conclusion and Order:

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For the reasons recorded above, this appeal is allowed.

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The judgments and decrees passed by the Courts below are set aside.

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It is held and declared that the plain"ff-appellant, being one of the coowners of the property, is en"tled to possession of the house in dispute.

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A decree for possession of the suit house is accordingly passed in favour of the plain"ff-appellant and against the defendants-respondents.

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RSA-2349-1990 (O&M)

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The defendants are directed to hand over vacant and peaceful possession of the suit property to the plain"ff within a period of sixty (60) days from the date of receipt of a cer"fied copy of this judgment. In default, the plain"ff shall be en"tled to seek execu"on of this decree in accordance with law.

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The plea of bar under Order II Rule 2 CPC, or res judicata, or Order XXIII Rule 1 CPC is rejected.

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The plea of adverse possession having not been specifically pleaded or proved, is also rejected.

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No order is passed on the ques"on of mesne profits, the same being le: open to be claimed in appropriate execu"on proceedings, if the plain"ff so desires and in accordance with law.

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Par"es shall bear their own costs.

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		(DEEPAK GUPTA) JUDGE
27.10.2025
Nee�ka Tuteja
	Whether speaking/reasoned?	Yes
	Whether reportable?	Yes

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(O&M) Banto v. Ajmer Singh and Ors.

Case brief

What is this about?

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(O&M) Banto v. Ajmer Singh and Ors.

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