Ghulam Nabi vs State on 28 May, 2019

[Cites 27, Cited by 0]

Jammu & Kashmir High Court

Ghulam Nabi vs State on 28 May, 2019

1. This revision petition has arisen out of order dated 10th January, 2015 passed by Sub Judge (Chief Judicial Magistrate), Udhampur (hereinafter referred to as the "Court below") in civil suit titled Bimla Devi and another v. Ghulam Nabi, whereby prayer of the petitioner for rejection of plaint made in terms of Order-VII Rule 11 of the Code of Civil Procedure has been rejected.

2. The litigation between the parties has a chequered history. The suit house which is owned by the petitioner is situated in Khasra No.57 of village Barrian, Udhampur. The respondents were inducted in the suit house as tenants by the petitioner. On 14th August, 1975, a suit for ejectment came to CR No.31/2016 Page 1 of 16 be filed by the petitioner against the respondents in the Court of Sub Judge, Udhampur. The respondents initially contested the suit and filed their written statement. However, subsequently they did not appear in the suit and were, thus, proceeded ex-parte. The suit of the petitioner for ejectment was decreed by the Sub Judge, Udhampur vide ex-parte decree dated 10th April, 1976 and the respondents were directed to be evicted from the suit house. The decree was not obeyed by the respondents, an execution petition was filed against the respondents. With a view to defeat the execution petition, the respondents filed a suit on 10th August, 1978 in the Court of Sub Judge, Udhampur seeking a declaration that the judgment and decree passed by the Court below on 10.0.1976 was a nullity having been obtained by fraud. The said suit of the respondent was dismissed on 31 st December, 1987. The first appeal before the District Judge, Udhampur and the second appeal before this Court too were dismissed on 31st January, 1997 and 1st December, 2000 respectively.

When, the respondents found their eviction imminent and evitable, they got a suit filed through one Sh. Ajay Kumar, the son of respondent No.1 and brother of respondent No.2. This suit was filed by said Ajay Kumar in the Court of Munsiff, Udhampur seeking a declaration that respondent Nos. 2 and 3 herein were owners in possession of the suit house. In the suit Ajay Kumar pleaded that the suit house was situated in Khasra No.50 and, therefore, was different from the house qua which the eviction degree had been passed by the Court below on 10th April, 1976. The said suit too was dismissed by the learned Munsiff, Udhampur vide judgment and decree dated 30th November, 2012 recording a clear finding that the suit house was not falling in Khasra No.50 as pleaded in the suit but was in Khasra No.57. CR No.31/2016 Page 2 of 16 The said judgment and decree, as admitted by the parties, has not been further challenged before the higher Court and the same has, therefore, attained finality.

3. After dismissal of the suit filed by Ajay Kumar, which was primarily aimed at defeating the execution of the eviction decree, the petitioner moved fresh execution petition before the Court below. The respondents with a view to perpetuate their possession over the suit house with respect to which there was a final decree of eviction passed against them, instituted another suit before the Court below seeking a declaration that on account of failure of the petitioner to file execution proceedings within the period of limitation prescribed therefor, the respondents have become owners by adverse possession. The petitioner contested the suit of the respondents, inter alia, on the ground that the same was barred in terms of Section 47 of the Code of Civil Procedure. The plea of res judicata too has been taken by the petitioner in the written statement. Alongside, the petitioner also moved an application under Order VII Rule 11 CPC for rejection of the plaint on the ground that the same was barred in terms of Section 47 CPC and was also hit by the principle of res judicata. The Court below vide order impugned rejected the application filed by the petitioner primarily on the ground that whether or not the cause of action has accrued to the plaintiff and whether or not the plaintiffs had become owners by adverse possession were disputed questions of fact which needed adjudication and determination by the Court by holding the trial. It is this order of the trial Court, the petitioner is aggrieved of and assails the same inter alia on the following grounds:-

i) The Court below has not appreciated the fact that the suit was barred by Section 47(1) of the CPC.

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ii) the suit was barred by principle of res judicata.

iii) The suit was vexatious and meritless based on no cause of action.

4. Apart from the aforesaid grounds pleaded in the memorandum of revision, learned counsel for the petitioner has also raised an important question of law that the suit of the plaintiffs seeking declaration of title of the property by adverse possession was not maintainable on the ground that the plaintiffs cannot set up adverse possession as cause of action seeking declaration of title but can only use it as a defence in a suit for possession brought about by the owner who is out of possession for the last more than 12 years.

5. Having heard learned counsel for the parties and perused the record, I am of the view that the suit of the respondents before the Court below is barred by law not maintainable and, therefore, should have been rejected by the Court below under Order VII Rule 11 CPC.

6. From the narration of facts given herein above, it is abundantly clear that there has been a consistent and well thought after effort on the part of the respondents to defeat the decree of ejectment passed against them. The decree of ejectment passed in favour of the petitioner and against the respondents qua the suit house was passed as back as on 10 th April, 1976 but despite lapse of 42 years, the petitioner has not been permitted to reap the fruits of the litigation which culminated into the decree of eviction passed on 10th April, 1976 and the suit house regarding which final judgment and decree of eviction against the respondents was passed continues to be in possession of the respondents. The respondents have succeeded in CR No.31/2016 Page 4 of 16 perpetuating their possession by flagrant misuse of the mercies of law in receiving plaints. A bare reading of the plaint in the context of factual matrix makes it crystal clear that the plaint filed by the respondents is manifestly vexatious and meritless and, therefore, does not disclose a clear right to sue. On this score only, the Court below should have exercise its power under Order-VII Rule 11 of the Code of Civil Procedure and this way would have shot down bogus litigation. Law with regard to the scope of Order-VII Rule 11 CPC is well settled and has been beautifully summed up by the Supreme Court in the case of T.Arivandanam v. T.V.Satyapal; 1977 (4) SCC 467.

7. It may be relevant to note that a party claiming adverse possession must prove that his possession is open, peaceful, continuous and adverse to the actual owner of the property. This possession must be adequate in continuity, in publicity and in extent to show that it is adverse to the true owner. The Supreme court in the judgment of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others; (2009) 16 SCC 517 surveyed the whole law pertaining to adverse possession and in paragraph No.34 and 35 concluded thus:-

"34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation."

8. The Supreme Court in the aforesaid judgment frowned upon the law of adverse possession and held that right to possess property is not only a CR No.31/2016 Page 5 of 16 constitutional but a human right also. The Union of India was, thus, asked to have a fresh look regarding the law of adverse possession and seriously consider and make suitable changes in the law of adverse possession. In the aforesaid judgment itself, the Supreme Court revisited the law regarding principle of adverse possession laid down in some important cases. The discussion of the Supreme Court in paragraph Nos.11 to 22 is worth taking note of and the same is reproduced hereunder:-

"11. We deem it appropriate to deal with some important cases decided by this court regarding the principle of adverse possession.

12. In Secretary of State for India v. Debendra Lal Khan AIR 1934 PC 23, it was observed that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

13. This Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314, while following the ratio of Debendra Lal Khan's case (supra), observed as under:

"But it is well settled that in order to establish adverse possession of non-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non- possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be one the basis of joint title. The co- heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is a settled rule of law that as between co- heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to be knowledge of the other so as to constitute ouster."

The court further observed thus:

"The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."

14. In S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Hidayatullah, J. speaking for the court observed as under:-

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title was not CR No.31/2016 Page 6 of 16 enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."

15. The facts of R. Chandevarappa & Others v. State of Karnataka & Others (1995) 6 SCC 309 are similar to the case at hand. In this case, this court observed as under:-

"The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."

16. In D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 this court observed as under:-

"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."

17. In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC 271, paras 21-22, this Court observed as under:

"21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus possidendi.

22. ....We may further observe that in a proper case the court may have to construe the entire pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been raised in the written statement or not which can also be gathered from the cumulative effect of the averments made therein."

18. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed as under:-

"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use 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 owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, 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."

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The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

19. In Saroop Singh v. Banto (2005) 8 SCC 330 this Court observed:

"29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376)

30. `Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)"

20. This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114 para 7. This Court observed as under:

"...In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession."

21. This court had an occasion to examine the concept of adverse possession in T. Anjanappa & Others v. Somalingappa & Another [(2006) 7 SCC 570]. The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that the classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.

22. In a relatively recent case in P. T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59] this court again had an occasion to deal with the concept of adverse possession in detail. The court also examined the legal position in various countries particularly in English and American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with adverse possession in paras 5 and 6 observed as under:-

"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner CR No.31/2016 Page 8 of 16 to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957);

Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]

6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim."

9. In the backdrop of legal position summed up by the Supreme Court in the aforesaid case, when we look to the averments made in the plaint, we clearly find that no such foundational facts have been pleaded which would constitute adverse possession as it is known to law. It is admitted case of the parties that the very entry of the respondents in the suit house was permissive in the capacity as a tenants thereof. The respondents suffered a decree of ejectment but did not vacate the house by successfully avoiding its execution by filing suit after suit and embroiling the petitioner in litigation. The two suits filed after the decree of ejectment, one by the respondents and the other through their kin Ajay Kumar, were found to be meritless and were accordingly, dismissed. It is also not in dispute that the decree for ejectment passed in favour of the petitioner and against the respondents could not be CR No.31/2016 Page 9 of 16 successfully put to execution as there was another suit filed by the respondents seeking declaration that the judgment and decree of eviction passed by the Court below was a nullity. When the aforesaid suit was dismissed, another suit was filed by Ajay Kumar, who is none other than the son of respondent No.1 and brother of respondent No.2 which also prevented the petitioner from executing the decree of ejectment. It is only after the suit filed by Ajay Kumar was dismissed, an application for execution was filed by the petitioner. From the narration of these events, which are not disputed by the parties, it is abundantly clear that the parties are in litigation since prior to 1976 and the litigation has not ended as on date. In such situation, the plea of adverse possession set up by the respondents as a cause of action to file the suit is totally frivolous and vexatious and a ingenious effort to create an illusion of cause of action. Even if, one has to accept the case set up by the respondents in the plaint as a gospel truth, no decree for title on account of adverse possession can be passed by the Court. The necessary ingredients, which constitute adverse possession, are completely missing in the plaint. Had the Court below taken little pain to go through the facts pleaded in the plaint and appreciated the same in the light of settled position of law regarding adverse possession, there would not have been any difficulty in accepting the application of the petitioner and rejecting the plaint at the threshold.

10. That apart, the plea of the petitioner that it was not competent for the respondents as plaintiffs to set up adverse possession as a cause of action to seek declaration of title, though not taken before the Court below, cannot be ignored. Since the plea raised for the first time in this revision petition is a pure question of law and, therefore, the same can always be raised at any stage of the proceedings.

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11. I have heard learned counsel for the parties on this aspect in extenso. In the first blush, the law regarding adverse possession being set up as a cause of action to seek declaration of title appeared to be hazy and unclear but by delving little deeper into the issue, I have found the law on the point also well settled. Before proceeding further, it would be necessary to set out the provisions of Section 28 of the Limitation Act which, for expediency, is reproduced hereunder:-

"28. Extinguishment of right to property At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

12. From a plaint reading of Section 28 of the Limitation Act, which is pari materia to Section 27 of the Central Limitation Act, it is clear that at the determination of the period of limitation for filing a suit for possession of any property, the right to such property gets extinguished. Article 144 of the First Schedule of Limitation Act provides such period of limitation as 12 years to be reckoned with effect from the date the possession of the defendant becomes adverse to the plaintiff. Thus, a conjoint reading of Section 28 and Article 144 of the First Schedule would suggest that if the suit for possession of property is not filed by the plaintiff within a period of 12 years from the date, the possession of the defendant become adverse, the same would be liable to be dismissed being barred in terms of Section 3 of the limitation Act and if, the suit is so barred after the expiry of the period of 12 years, the defendant is entitled to set up the plea of adverse possession and claim that the suit be dismissed being barred by limitation. Section 27 of the Central Limitation Act which is in pari materia to Section 28 of the State Limitation Act has remained subject matter of debate since the time of Privy Council. The question as to whether the plea of adverse possession can be CR No.31/2016 Page 11 of 16 used as a sword or shield has been subject matter of discussion in many cases. In the case of Perry v. Clissold and others [1907] A.C. 73 the Privy Council considered the effect of adverse possession on the original owner and held:

"If the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."

13. In a later decision rendered in the case of Mohunt Bhagwan Ramanuj v. Ramkrishna Bose, AIR 1922 PC 184, the Privy Council while explaining the scope of adverse possession in the light of Section 28 of the repealed Indian Limitation Act, laid down as under:-

"4. Under S.28 of the Indian Limitation Act, it is expressly provided that at the expiration of the period prescribed by the Act for limitation of suits, not only is the remedy barred but the right is gone. That is quite clear. That being so, the statute has operated to revoke the estate that was originally vested in the plaintiff, and to confer a statutory estate upon the defendants."

14. Similarly, in another case reported at AIR 1942 PC 64 ( Lala Hem Chand v. Lala Pearey Lal), the Privy Council took a view that the plaintiff by holding the property adversely for 12 years had acquired title by prescription and the tile of the defendant got extinguished.

15. Similarly, acknowledging the effect of adverse possession, the Supreme Court in the case of P.T.Munichikkanna Reddy v. Revamma (2007) 6 SCC 59 in para graph No.6 held thus:-

"............................Modern statutes of limitation operate, as a result, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vet the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of the property for the time specified by the statute under claim of right or colour of title............"

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16. The aforesaid decision of the Privy Council as also of the Supreme Court expressly lays down that as a consequence of adverse possession, original owner's title is extinguished and the possessor also acquires title as a consequence thereof. There are further instances of grant of decree of title based on adverse possession which have been upheld by the Supreme Court in several judgments, though, the question that adverse possession could at all provide cause of action to seek declaration of title was neither raised nor considered. To quote few Balkrishan v. Satyaprakash (2001) 2 SCC 498, Bondar Singh v. Nihal Singh (2003) 4 SCC 161 and Des Ra v. Bhagat Ram (2007) 9 SCC 641. To the similar extent is the judgment of a Division Bench of this Court rendered in the case of Ahmed Wani v. Lassu Ganai and others; AIR 1967 J&K 149 wherein the Division Bench relying upon judgment of the Bombay High Court in the case reported as AIR 1943 Bom. 263 upheld the view that when the right to property gets extinguished by operation of Section 28 of the limitation Act, the title of the immovable property cannot be left in the air and on extinguishment of the title of the true owner, title vests on trespasser who has got it by adverse possession.

17. Recently, the Supreme Court, however, taken a contrary view in the case of Gurudwara Sahib v. Gram Panchayat Village Sirthala and another (2014) 1 SCC 669. Observations of the Supreme Court in para Nos.6 and 7 of the judgment are noteworthy and are, therefore, reproduced hereunder:-

"6. It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the First Appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The First Appellate Court while dismissing the appeal observed as under:

"The respondents have not challenged the judgment and decree dated 6.1.2009 passed by the ld. Civil Judge (Jr. Div.), Khanna, which CR No.31/2016 Page 13 of 16 means that they have accepted that the appellant was in adverse possession of the suit land since 13.4.1952. The issue whether adverse possession of the appellant/plaintiff had matured into his ownership is purely a question of law and it is a settled that no declaration of title can be sought on the basis of adverse possession. Ld. Trial court has rightly relied upon the case titled Gurudwara Sahib Sannauli vs. State of Punjab PLR 756 wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, respondent No.1 was within its rights to auction a part of the same, on 19.12.2003 in favour of respondent No.2. Respondent No.1 has proved that land measuring 13B-12B was auctioned on 19.12.2003 in the presence of BDPO Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name of a consideration of Rs.1,11,000/- and the land measuring 6B on which the building of Gurudwara Sahib had been constructed, was not auctioned.

In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6.11.2009 passed by ld. Trial court and therefore the appeal is dismissed and the findings of the ld. trial court are affirmed. Decree sheet be prepared. File of lower court be returned forthwith. File be consigned to the record room."

7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."

18. This decision of the Supreme Court has been followed by various High Courts. Punjab & Haryana High Court in the case of Vijay Bhawar and others v. Ajab Singh(deceased) through his LR decided on 08.12.2014 has also taken the similar view while deciding a question of law referred by the learned Single Judge. The precise question that fell for consideration of the Division Bench of the Punjab & Haryana High Court in the aforesaid case reads thus:-

"Whether the plaintiff is competent to seek declaration of title of the property by adverse possession, or whether the same is available only to the defendant to plead the same as defence in a suit for possession filed by the plaintiff on the basis of title?

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19. After thoroughly discussing the case law on the issue, the Division Bench of the Punjab & Haryana High court answered the reference in paragraph No.15 in the following manner:-

"In view of the above, in none of the judgments cited by learned counsel for the respondent (plaintiff), the proposition of law was directly in issue. Thus, we are of the opinion that no declaration can be sought by a plaintiff with regard to ownership on the basis of adverse possession as such plea is available only to defendant."

20. Following the law laid down by the Supreme Court in the case of Gurduwara Sahib (supra) and the Division Bench of the Punjab & Haryana High Court, I am persuaded to accept the plea of the learned counsel for the petitioner that the suit for declaration of title based on the plea of adverse possession is not maintainable and the adverse possession can only be set up as a defence in an action brought against him by the plaintiff.

21. In this view of the matter the suit filed by the respondents which is pending adjudication before the Sub Judge, Udhampur, which is a suit for declaration of title on the basis of adverse possession is, thus, barred by law.

22. That being the position, the plaint is liable to be rejected under Order VII Rule 11 CPC. That apart, as already held herein above, the plaint also does not contain the foundational facts constituting adverse possession as a cause of action to file the plaint and illusion of cause of action has been sought to be created by the respondents by raising the pleas in the plaint which, in the context of factual matrix, are utterly frivolous and vexatious. The possession of respondents for twelve years or more due to failure of the petitioner to file execution petition in itself does not amount to adverse possession, unless it is shown that the possession has been peaceful, continuous, open and hostile to the petitioner, a paper owner. CR No.31/2016 Page 15 of 16

23. Accordingly, this revision petition succeeds and is allowed. The order impugned is quashed. The plaint filed by the respondents, which is pending adjudication before learned Sub Judge, Udhampur is rejected. Registrar Judicial to draw the decree sheet accordingly.

24. The record be sent back.

(Sanjeev Kumar) Judge 28 .05.2019 Vinod.

Whether the order is speaking: Yes Whether the order is reportable: Yes VINOD KUMAR 2019.05.29 15:16 I attest to the accuracy and integrity of this document CR No.31/2016 Page 16 of 16

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