Punjab-Haryana High Court
Surender Kumar And Others vs Amrit Kaur on 30 July, 2013
R.S.A. No. 2372 of 2013 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No.2372 of 2013 [O&M].
Date of Decision: July 30th, 2013
Surender Kumar and others
.... Appellants
Versus
Amrit Kaur
.... Respondent
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. R.S.Mamli, Advocate,
for the appellants.
VIJENDER SINGH MALIK, J.
This is a regular second appeal brought by the plaintiffs against the judgment and decree dated 30.1.2012 passed by learned Civil Judge [Junior Division], Kurukshetra dismissing their suit as also the judgment and decree dated 8.3.2013 passed in appeal by learned Additional District Judge, Kurukshetra whereby the appeal filed by the plaintiffs- appellants has been dismissed.
The plaintiffs had brought a suit for declaration to the effect that they have become owners of the suit property by way of adverse possession. They also sought the relief of permanent injunction restraining the defendant from demolishing the suit property and from alienating the same. The claim of the plaintiffs-appellants is as under:- Prakash Som 2013.08.05 15:06 I attest to the accuracy and integrity of this document R.S.A. No. 2372 of 2013 2
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The house in dispute was owned by the vendors of the defendant. Ejectment order was passed in relation to this house against plaintiff No.1 on 11.5.1991 in a rent petition. Appeal against that ejectment order was withdrawn by plaintiff No.1 on 26.11.1992 and, consequently, the tenancy rights of plaintiff No.1 stood extinguished in this manner. On 1.12.1992, one of the landlords executed a rent note in favour of plaintiff No.2 and since then, the plaintiffs are residing in the house in question. Plaintiffs have claimed their possession over the disputed house to be hostile to the knowledge of the entire world. They have even raised construction of the house. No execution was ever filed by the landlords. The landlords, however, filed a contempt petition. The plaintiffs have claimed that their possession over the disputed house is uninterrupted from December, 1992. In this way, the decree is sought for declaration that the plaintiffs have become owners of the suit property by way of adverse possession.
The suit is resisted by the defendant who is a purchaser of the house in question from its previous owners. He has claimed that eviction order was passed against plaintiff No.1 in the year 1992 and despite that, plaintiff No.1 did not vacate the house in question. It is further averred that plaintiff No.1 was convicted in the contempt proceedings on 13.5.1993 which continued till the year 2005. The review petition filed by plaintiff No.1 against the order dated 19.1.2004 was also dismissed.
On the pleadings of the parties, following issues were framed by learned trial court.
"1. Whether the plaintiffs have become owner of the suit property by way of adverse possession and entitled Prakash Som 2013.08.05 15:06 I attest to the accuracy and integrity of this document R.S.A. No. 2372 of 2013 3 ..
to relief of injunction? OPP
2. Whether the plaintiffs have no locus standi to file and maintain the suit? OPD
3. Whether the suit is based on concealment and perjury? OPD
4. Whether the plaintiffs are estopped from filing the present suit by their own acts and conduct? OPD
5. Whether suit is not property valued for the purpose of court fee and jurisdiction?
6. Whether plaintiff No.1 has filed the suit to avoid his punishment awarded to him vide order dated 19.1.2004? OPD
7. Relief."
Parties led their evidence. Hearing learned counsel for the parties, learned trial court has returned finding on issue No.1 against the plaintiffs. It has been held that the plaintiffs are not entitled to the relief of declaration to the effect that they are owners of the house in question by way of adverse possession. In the result, the suit failed and was dismissed with costs.
Needless to say that the appeal preferred by the plaintiffs failed before learned Additional District Judge, Kurukshetra vide judgment and decree dated 8.3.2013.
Learned counsel for the appellants has contended that the plaintiffs-appellants have been in uninterrupted and hostile possession of the house in question since 1992. According to him, the suit was filed on 15.2.2006 and by that time, the adverse possession of the plaintiffs matured into ownership. He has further submitted that the plaintiffs are also in possession of the house in pursuance of an agreement of sale. According to him, under the agreement of sale, the plaintiffs can remain Prakash Som 2013.08.05 15:06 I attest to the accuracy and integrity of this document R.S.A. No. 2372 of 2013 4 ..
in possession of the suit property. He has submitted that they have got the protection of sections 53-A of the Transfer of Property Act.
It is a case where the plaintiff-appellants are clearly shown to be on wrong side of the law. Rent petition No. 89 of 1990 filed by the landlords against plaintiff No.1 culminated in an ejectment order on 11.5.1991. Plaintiff No.1 filed an appeal on 15.6.1991. The said appeal was withdrawn on the basis of a compromise in which plaintiff No.1 Om Parkash made a statement that he will hand over vacant possession of the property to the landlords on 1.12.1992. Despite it, he did not hand over possession of the house to the landlords. Thereafter the landlords filed a contempt petition which was decided on 19.1.2004 and plaintiff No.1 was ordered to be kept in civil imprisonment for one month. The present defendant has purchased the suit property from the previous owners vide sale deed dated 22.12.2005.
Learned counsel for the appellants could not deny the proposition of law that plea of adverse possession cannot be made a ground of attack because it is only a ground of defence. Though, the agreement of sale is not clearly brought to my notice, even if there was an agreement of sale, the plaintiffs-appellants were required to bring a suit for specific performance thereof. They have brought a suit for permanent injunction restraining the defendant from demolishing the suit property and alienating the same. The suit is, therefore, not maintainable against the defendant.
In view of my foregoing discussion, I find no fault with the findings arrived at by learned courts below. In the given facts and circumstances, no questions of law much less substantial questions of Prakash Som 2013.08.05 15:06 I attest to the accuracy and integrity of this document R.S.A. No. 2372 of 2013 5 ..
law arise in this appeal. Consequently, the appeal has no merit and is dismissed in limine.
(VIJENDER SINGH MALIK) JUDGE July 30th, 2013 som Prakash Som 2013.08.05 15:06 I attest to the accuracy and integrity of this document