Punjab-Haryana High Court
Labhu Ram (Deceased) vs Bhagwanti @ Bhag Devi (Deceased) on 27 July, 1995
Equivalent citations: (1997)115PLR247
JUDGMENT N.K. Kapoor, J.
1. This is defendant's regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court.
2. Plaintiff filed a suit for permanent injunction to the effect that the defendants be restrained from preventing the plaintiff from using the site as detailed in the headnote of the plaint and in the alternative for possession of the site including the well.
3. Suit was contested by the defendants. By way of preliminary objection it was stated that civil Court has got no jurisdiction to try the suit and that the plaintiff is not in possession of the land and so the suit in the present form does not lie. Defendants, however, admitted the dismissal of their suit by the High Court but denied the identity of the suit land. On the basis of the pleadings of the parties, the following issues were framed:-
(1) Whether the plaintiff is entitled to the injunction prayed for ? OPP. (2) Whether the present suit is barred by time ? OPD.
4. Initially both these issues were decided in favour of the defendants by Sub Judge I Class vide judgment and decree dated 26.3.1971. On appeal the case was remanded back to the trial Court and further two following issues were framed by the appellate Court.
(2-A) Whether the civil court has no jurisdiction to try the suit ? OPD.
(2-B) Whether the property in suit formed part of the property in regard to which the defendants had filed a suit for declaration which has ultimately been dismissed'by the High Court as alleged by the plaintiff in para No. 2 of the plaint, if so to what effect ? OPP.
5. Though the appellate Court framed only the above mentioned two additional issues, the trial Court on its own framed two more issues bearing Nos. (2-C) and (2-D) and after recording evidence of the parties dismissed the suit vide judgment and decree dated 28.8.1973. Since the trial Court travelled beyond the remand order this judgment too was set aside by the appellate Court and the case was once again remanded for fresh adjudication. Trial Court on the basis of evidence came to the conclusion that plaintiff is not in possession of the property. Under issue No. 2 the Court came to the conclusion that the plaintiffs are owners of the suit land and the defendants have failed to prove that they have become owners by way of adverse possession. Issue No. (2-A) was also decided in favour of the plaintiffs. Resultantly, the decree for possession in favour of the plaintiff was passed By the trial Court.
6. Before the appellate Court the matter was once again examined on facts as well as law. Defendants primarily addressed the Court in respect of the finding of the trial Court under issue No. 2 and urged that since they are in possession of suit land for the last 30 to 35 years present suit is per se barred by limitation. The Appellate Court after exhaustively dealing with the documentary as well as oral evidence came to the conclusion that this plea of the appellants-defendants has no merit. Resultantly, the appeal was dismissed.
7. Almost identical pleas have been, raised by the learned counsel far the appellants which did not find favour with the Courts below. Mere long possession cannot be construed to be adverse qua the real owner. As per written statement filed by the defendants, all that it has been stated is that they are in cultivating possession of land for the last more than 30 to 35 years. Such a possession can be permissive unless a hostile title-is set up. Defendant has not pleaded that he has become owner by way of adverse possession and so no issue was framed by the Court below. Both the Courts below on appraisal of evidence have come to the conclusion that the plaintiff is owner of the suit land and the possession of the defendants is permissive in law.
8. Thus, finding no merit in this appeal the same is dismissed.