Punjab-Haryana High Court
Joginder Kaur vs Gurbachan Kaur And Others ... on 30 May, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No.1278 of 2012(O&M)
Date of Decision: 30.5.2012.
Joginder Kaur --Appellant
Versus
Gurbachan Kaur and others --Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Amarjit Markan, Advocate for the appellant.
Mr. Chetan Mittal, Sr. Advocate with
Mr. Akshay Bhan, Advocate for the caveators/respondents.
***
TEJINDER SINGH DHINDSA.J Plaintiff filed a suit seeking a decree of declaration to the effect that she has become owner in possession of the suit land by way of adverse possession and the mutation entries no.990 and 991 sanctioned on 1.1.2002 and the orders dated 21.8.1980 and 6.8.1984 passed by the Assistant Collector 1st Grade, Karnal are null and void and not executable under Article 136 of the Limitation Act. The relief of permanent injunction was also sought for so as to restrain the defendants from interfering in the peaceful and continuous possession of the plaintiff in the capacity of owner as also restraining them from alienating, selling or creating any charge on the suit property.
Briefly noticed, it was pleaded that defendant no.1 Gurbachan Kaur was recorded the owner of the suit land measuring 74 kanals 3 marlas situated in village Singra, Tehsil Nissing, District Karnal as per Jamabandi for the year 1996-1997. Anokh Singh, predecessor-in interest of the plaintiff was recorded to be in possession of the suit land as gair marusi and he was recorded in occupation on payment of 1/3rd batai. RSA No.1278 of 2012(O&M) -2- Defendant no.1 had preferred objections under the provisions of the Punjab Security of Land Tenures Act for ejectment of said Anokh Singh on the ground of non-payment of rent. Vide order dated 21.10.1981 the Assistant Collector 1st Grade, Karnal passed an order of ejectment against Anokh Singh and upon an appeal having been preferred against such order of ejectment, the same was accepted and the case was remanded back to the Assistant Collector 1st Grade, Karnal vide order dated 9.4.1981 passed by the Collector, Karnal. In terms of passing a fresh order dated 6.8.1984 the Assistant Collector 1st Grade, Karnal passed an ejectment order against Anokh Singh in respect of the suit property. The ejectment order was never executed by defendant no.1 and even though, the relationship of landlord and tenant ceased to exist upon the passing of the ejectment order but the possession of Anokh Singh continued in the capacity of a trespasser/unauthorized occupant. Accordingly, it was pleaded that the possession of Anokh Singh, the predecessor in interest of the plaintiff became hostile, open and continuous to the knowledge of defendant no.1. Defendant no.1 was stated to have suffered a collusive decree in favour of Bakha Singh and Jasbir Kaur i.e the adopted daughter of defendant no.1 vide Civil Court judgement and decree dated 22.2.1985 and mutation no.633 was sanctioned in their favour on 17.2.1986. It was pleaded that such decree was collusive and the possession of the suit land was never handed over. Jasbir Kaur was stated to have died on 26.4.1987 and mutation no.990 dated 1.1.2002 was sanctioned in favour of defendant no.2. Bakha Singh i.e husband of Jasbir Kaur was also stated to have died on 17.3.2001 and mutation no.991 was also sanctioned in favour of defendant no.2 on 1.1.2002. It was pleaded that in terms of Article 136 of the RSA No.1278 of 2012(O&M) -3- Limitation Act the order of ejectment passed by the Assistant Collector 1st Grade, Karnal dated 6.8.1984 was executable within a period of 12 years i.e up to 5.8.1996. Such period had expired long back and on account of the open, continuous and hostile possession of the plaintiff a decree of declaration for having become owner in possession by way of adverse possession be granted.
The defendants contested the suit in terms of filing a joint written statement as also a counter claim. It was stated that Anokh Singh had been occupying the suit land on payment of 1/3rd batai. Upon his death his legal heirs inherited the tenancy rights. The filing of ejectment application against Anokh Singh for non-payment of rent was admitted and the factum of passing of the order of ejectment against Anokh Singh on 6.8.1984 was also admitted. The defendants took a stand that after the passing of the ejectment order Anokh Singh and his sons approached defendant no.1 and requested that he be allowed to continue occupying the suit land on payment of 1/3rd batai. It was stated that for such reason defendant no.1 did not execute the order of ejectment and permitted Anokh Singh to remain in occupation of the suit land. It was further stated that upon the demise of Anokh Singh his sons had been making the payment of 1/3rd batai and the suit had been instituted to take advantage of the non- execution of the ejectment order. The possession of the plaintiff over the suit land was stated to be in the capacity of a tenant and as such permissive in nature. As regards the counter claim filed by the defendants, it was pleaded that in terms of filing the instant suit the plaintiff had verified her tenancy rights by denying the same and as such the defendants were entitled to get a decree for possession of the suit land.
RSA No.1278 of 2012(O&M) -4-
On the basis of the pleadings the following issues were struck by the Trial Court:-
"1. Whether the plaintiff has become owner in possession of the disputed property, as prayed for?OPP.
2. Whether the mutation entries no.990 and 991 sanctioned on 1.12002 in favour of defendant no.2 are illegal, null and void and liable to be set aside as alleged?OPP.
3. Whether the order dated 22.10.1980 as well as dated 6.8.1984 passed by Assistant Collector 1st Grade is not executable as prayed for?OPP.
4. Whether the plaintiff is entitled to the decree of injunction as prayed for?OPP.
5. Whether the defendants are entitled to a decree for possession in respect of the land fully detailed in para no.3 by way of counter claim, as alleged?OPD.
5-A. Whether the civil court has no jurisdiction to pass a decree for possession on the basis of the facts mentioned in the counter claim?OPP.
5-B Whether the counter claim is not maintainable being beyond limitation?OPP.
5-C Whether the counter claim has not been properly valued for the purposes of court fee and jurisdiction?OPP.
6. Relief."
The Trial Court vide judgement dated 15.6.2009 held the plaintiff having failed to substantiate the ingredients required to establish adverse possession and accordingly held that the plaintiff had no right to claim ownership on such basis. The Trial Court further held that under the Indian Limitation Act the period to file a suit for possession was within 12 years of the passing of the ejectment order and the same had elapsed, accordingly, the defendants were not entitled to the decree of possession as prayed for in the counter claim.
RSA No.1278 of 2012(O&M) -5-
Aggrieved of the judgement itself by the Trial Court the defendant-appellant preferred a civil appeal praying for their counter claim regarding a decree for possession to be allowed. Likewise, respondent no.1 Balbir Singh also filed cross objections praying for setting aside the judgement and decree dated 15.6.2009 passed by the Trial Court and for declaring the plaintiff/objector to be the owner of the suit land by way of adverse possession.
The Additional District Judge (Fast Track Court), Karnal vide impugned judgement dated 20.1.2012 allowed the appeal filed by the defendant-appellant and as such allowed the counter claim and accordingly, held the defendant-appellant i.e the owner to be entitled to a decree of possession of the suit land from the plaintiffs. The cross objections filed by the plaintiffs-respondents were, accordingly, dismissed. Accordingly, the plaintiff-appellant is in second appeal before this Court.
I have heard Mr. Amarjit Markan, learned counsel appearing for the appellant and Mr. Chetan Mittal, learned Senior Advocate assisted by Mr. Akshay Bhan, Advocate for the caveators-respondents at length.
As per learned counsel appearing for the appellant the following substantial questions of law arise for consideration in the present second appeal:-
"I) Whether once the ejectment order dated 06.08.1984 passed against the plaintiff have not been executed so far, then in that eventuality counter claim of the defendants can be allowed to pass a decree for possession against the plaintiff, especially when they had extinguished their right in terms of Section 27 of the Limitation Act, 1963?
VI) Whether the findings contained in the impugned judgements by holding that the suit of the plaintiff on the basis of adverse possession is not maintainable, are perverse, contrary to law and the same are liable to be set aside?RSA No.1278 of 2012(O&M) -6-
VII) Whether the possession of the plaintiff is hostile and continuous, since the date of ejectment order dated 06.08.1984 as pleaded in the plaint Annexure A-1 as well as in the written statement to the counter claim Annexure A-2, which has ripened into adverse possession therefore the findings on issue no.5 and 5-B of Lower Appellate Court are liable to be set aside and that of the trial court be restored?"
Learned counsel appearing for the appellant would firstly contend that it is a settled principle of law that the status of a tenant becomes unlawful from the date of passing of the ejectment order and dispossession of the person is not necessary for determining the tenancy. In support of such contention learned counsel would place reliance upon a judgement of the Hon'ble Supreme Court rendered in case of Rikhi Ram and another Vs. Ram Kumar and others reported as 1975 PLJ 331. Learned counsel would further argue that a suit for declaration as regards ownership on the basis of adverse possession was even maintainable at the hands of the plaintiff and towards such submission learned counsel would place reliance upon two judgements of the Hon'ble Apex Court in the matters of Des Raj and others Vs. Bhagat Ram (Dead) by L.Rs and others reported as 2007 (2) RCR (Civil) 581 and Krishnamurthy S. Setlur Dead by L.Rs Vs. O.V. Narasimha Setty and others reported as 2007 (2) RCR (Civil) 313. Learned counsel for the appellant has also vehemently argued that the counter claim filed by the defendants- respondents seeking a decree for possession could not have been allowed by the Lower Appellate Court as such a counter claim in law would be construed as a separate suit and under the Limitation Act the period to file a suit for possession was within 12 years of the passing of the ejectment order and in the facts of the present case such period had long elapsed. RSA No.1278 of 2012(O&M) -7-
Per contra, learned counsel appearing for the respondents would contend that the suit itself was not maintainable as the plea of adverse possession was only available as a measure of defence and not to set up a claim for ownership on the basis thereof at the hands of the plaintiff. Learned senior counsel would further argue that even otherwise the ingredients required to establish adverse possession had neither been pleaded and as such had not been substantiated and as such the finding on such issue by both the courts below was well founded.
I have given my thoughtful consideration to the submissions advanced by respective counsel for the parties in the light of the substantial questions of law, which as per the present appellant arise for consideration in the present second appeal.
The claim of the appellant as regards ownership by way of adverse possession is untenable on two counts. Firstly, to assert title by way of adverse possession it requires pleadings to the effect as also corroborating such plea by way of leading cogent evidence to show that the possession was continuous, open, hostile and adverse to the true owner. As such it is imperative that such alleged adverse possession must start with a wrongful dispossession of the rightful owner. In case of Karnataka Board of Wakf Vs. Govt. of India and others reported as 2004 (2) R.C.R (Civil) 702 (S.C.) the Hon'ble Supreme Court had observed in the following terms:-
"11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true RSA No.1278 of 2012(O&M) -8- owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec claim, nec precario' that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
Admittedly, an ejectment order had been passed against Anokh Singh, i.e the predecessor-in-interest of the plaintiff and the same had not been executed. However, for a tenant to claim title of the suit land by way of adverse possession, he would have to prove the act of ouster. Mere non- payment of rent would not constitute adverse possession. The basic ingredient for adverse possession is lacking in the present case i.e. Anokh Singh was never ousted from the suit property in pursuance to the ejectment order dated 6.8.1984. On the contrary, it was the pleadings in the plaint itself that the possession of the suit land had never been surrendered by said Anokh Singh despite the ejectment order. Accordingly, I find that the courts below have rightfully held against the plaintiff as regards the ingredient of adverse possession having not been established.
Secondly, the plea of adverse possession would also not be available to the plaintiff as a suit seeking declaration for having become the owner of the suit property by way of adverse possession itself is not maintainable. A person in adverse possession can only raise such plea by way of defence and not by way of offence by filing a suit. Towards such view, I draw support from a judgement of Coordinate Bench of this Court in case of Bhim Singh and others Vs. Zile Singh and others reported as 2006 (3) R.C.R (Civil) 97, wherein it was held in the following terms:- RSA No.1278 of 2012(O&M) -9-
"11. Under Article 64 of the Limitation Act, a suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein based on title, can be filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned "when the possession of the defendant becomes adverse to the plaintiff." Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession."
The reliance placed by learned counsel appearing for the appellant on the judgements of the Hon'ble Apex Court in Des Raj and others (supra) and Krishnamurthy's (supra) case would be of no assistance to the appellant as the question as to whether a suit is RSA No.1278 of 2012(O&M) -10- maintainable or as to whether adverse possession can be pleaded only as a defence was not considered and adjudicated upon in the aforementioned judgements.
The submission raised by learned counsel appearing for the appellant to the effect that the impugned judgement of the Lower Appellate Court in terms of allowing the counter claim regarding granting a decree for possession in favour of the respondents is bad in law as the claim was time barred having not been initiated within 12 years of the passing of the ejectment order, is also without merit. Under Article 65 of the Limitation Act no period of limitation is prescribed for a suit for possession on the basis of a title. In the matter of Bhim Singh and others (supra), this court had also dealt with such aspect and had observed as follows:-
"15. 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."
For the reasons recorded above, the questions of law as indicated herein above are answered against the appellant. I do not find any RSA No.1278 of 2012(O&M) -11- basis that would warrant interference in the well reasoned judgement passed by the Lower Appellate Court. The findings recorded do not suffer from any perversity. The appeal, accordingly, is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE 30.5.2012.
lucky Whether to be reported? Yes.