IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No.1626 of 1987
Decided on: 5.12.2014
Nizam Din son of Boota . . . Appellant
Versus
Idu son of Jiwa . . . Respondent
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. Ghulam Nabi Malik, Advocate
for the appellant.
Mr. Ravinder Kumar, Advocate for
Mr. Manu K. Bhandari, Advocate
for the respondent.
*****
RAJ MOHAN SINGH, J. (Oral)
This is regular second appeal filed by defendant No.2
Nizam Din against the concurrent judgments and decrees passed by
the courts below decreeing the suit of the plaintiff.
2. Brief facts of this case are that plaintiff Idu son of Ziwa
filed a suit for declaration and permanent injunction to the effect that
he is owner in possession of the suit property measuring 17 Biswas
comprised in Khasra No.191/98 min situated in the area of
Rehmatgarh Killa, Malerkotla and also sought restraint order against
defendants Nizam Din and Abdul Hamid from taking forcible
possession of the subject land. It was alleged that Abdul Hamid was
the owner of the land and the same was sold by him in favour of
plaintiff on 27.07.1957 and 14.08.1957 vide two sale deeds in the
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ratio of area of 9 Biswas and 8 Biswas of land respectively. Since the
sale consideration was less than `100/-, therefore, these sale deeds
were not registered. It was alleged that since the plaintiff was in
possession of the land since long, therefore, alternatively the plaintiff
had become owner of the land by adverse possession.
3. Defendant Abdul Hamid contested the suit by saying that
he did not execute the sale deeds in favour of plaintiff. Nizam Din
contested the suit on the ground that sale deed for 8 Biswas of land
was not executed by Abdul Hamid and he claimed himself to be co-
sharer in the suit land having purchased the same from Abdul Hamid
through registered sale deed.
4. On the basis of pleadings of the parties, following issues
were framed:-
(1) Whether the plaintiff purchased the disputed property
from Abdul Hamid defendant No.1 by means of sale
deeds dated 27.05.1957 and 14.08.1957? OPP.
(2) Whether the plaintiff has become owner of the disputed
property by adverse possession? OPP.
(3) Whether Nizam Din defendant No.2 is owner in
possession of the disputed property on having purchased
the same from Abdul Hamid defendant No.1? OPD.
(4) Whether the present suit is barred by the principles of
resjudicata? OPD.
(5) Whether the suit is not maintainable in the present form?
OPD.
(6) Whether Abdul Hamid defendant No.1 was minor at the
time of execution of alleged sale deeds in favour of the
plaintiff? If so, its effect? OPD.
(7) Relief.
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5. Both the parties adduced their respective evidence and
the learned trial court decreed the suit vide judgment and decree
dated 26.04.1983, on the basis of findings recorded under Issue No.2
i.e. whether the plaintiff has become owner of the disputed property
by adverse possession? The said findings were upheld by the
learned lower appellate court vide judgment and decree dated
23.12.1986 that is why the present regular second appeal came to be
filed.
6. This court has considered the arguments raised by the
parties.
7. The trial court under Issue No.1 held that plaintiff had
purchased the suit land from defendant No.1 Abdul Hamid by means
of sale deeds dated 27.05.1957 and 14.08.1957 respectively. Under
Issue No.3 the learned trial court also held that the defendant No.2
Nizam Din had also purchased 13 Bighas 10 Biswas of land in
Khasra No.2/98 from defendant No.1 Abdul Hamid on 06.01.1958.
This issue was decided in favour of defendant No.2 i.e. the appellant.
Issue No.6 i.e. whether Abdul Hamid defendant No.1 was minor at
the time of execution of alleged sale deeds in favour of the plaintiff?
The learned trial court held that sale deeds were executed by
defendant No.1 Abdul Hamid when he was aged about 14 years
being born on 08.04.1943 and therefore, Abdul Hamid was proved to
be minor at the time of execution of sale deeds Ex.P1 and Ex.P2.
The sale deed in favour of defendant No.2 i.e. the present appellant,
Ex.D1 dated 06.01.1958, was also proved to have been executed by
defendant No.1 Abdul Hamid when he was aged about 15 years. All
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the sale deeds were held to be void because Abdul Hamid was
proved to be minor at the time of execution of sale deeds. This issue
No.6 was decided in favour of defendant No.1 Abdul Hamid.
8. The findings recorded under Issue No.2 were the subject
matter of contest between the parties. The learned trial court
ultimately held that the plaintiff Idu was proved to be in continuous
possession of land in dispute measuring 17 Biswas from 1957 to
1981 and this continuous possession was weighed in favour of the
plaintiff to hold him owner in possession. Therefore, the only
controversy is whether the plaintiff can be declared as owner by
adverse possession?
9. This court formulated the aforesaid poser to be the
question of law “whether plaintiff can use his long possession to
perfect his title on the basis of adverse possession?”
10. Since in view of findings recorded under Issue No.6, the
title of the property in favour of both the parties vanished away in
view of the fact that Abdul Hamid was held to be minor at the time of
execution of both the sale deeds. Now, the question arises whether
plea of adverse possession is available to the plaintiff as a weapon of
offence. Secondly whether the case of the plaintiff satisfies all the
ingredients of adverse possession i.e. nec vi, nec clam, nec precario.
Ingredients of adverse possession are that the party claiming the
same must prove that his possession is nec vi, nec clam, nec
precario i.e. peaceful, open and continuous. The aforesaid
ingredients have been well answered in a case of ‘Karnataka Board
of Wakf versus Government of India’ 2004 (2) RCR (Civil) 702,
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wherein the Hon’ble Supreme Court has held that the plea of adverse
possession is not a pure question of law rather it is a blended
question of fact and law and the person who claims adverse
possession must show firstly that on what date he came into
possession? secondly what was the nature of his possession? thirdly
whether the factum of possession was known to the other party?
fourthly how long his possession has continued? and fifthly his
possession was open, undisturbed, hostile to the very knowledge of
the opposite party. It was also held that the person pleading adverse
possession has no equities in his favour because this right is alike to
a piratical right, where the party is trying to defeat the rights of the
true owner and therefore, such party has to clearly plead and
establish all the necessary ingredients of adverse possession. The
aforesaid judgment has been subsequently relied upon by the
Hon’ble Supreme Court in 2014(1) RCR (Civil) 206 titled as
‘Tribhuvanshankar versus Amrutlal’ wherein the aforesaid maxim
nec vi, nec clam, nec precario has been highlighted with reference to
Limitation Act. In the instant case, the plea of adverse possession
was taken as an alternate plea for which there is no foundation made
on the aspect of adverse possessions. Therefore, plea has no
nexus/source in terms of pleadings and evidence on record with
reference to the necessary ingredients, which are required to be
established for proving adverse possession. In the instant case, the
plaintiff himself has come forward with the plea of adverse
possession, which is simply not tenable because plea of adverse
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possession is only available to the defendant as a weapon of
defence.
11. A suit for declaration by such a person who claims
ownership by way of adverse possession is not maintainable. In the
aforesaid context reliance is being placed on 2006 (3) RCR (Civil) 97
titled as ‘Bhim Singh & Ors. Versus Zile Singh & Ors.’. The
observations made in the aforesaid judgment are necessary in the
present context which are given as under:-
“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
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R.S.A. No.1626 of 1987
defendant becomes adverse to the 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.
13. The following observations made in the Prem Nath
Wadhawan’s case (supra) may be noticed :
“I have given my thoughtful consideration to the
submissions made by the learned counsel for the parties
and have also perused the record. I do not find any merit
in the contention of the learned counsel for the plaintiff
that the plaintiff has become absolute owner of the suit
property by virtue of adverse possession as the plea of
adverse possession can be raised in defence in a suit for
recovery of possession but the relief for declaration that
the plaintiff has become absolute owner, cannot be
granted on the basis of adverse possession.”
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 title.
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16. The judgment relied upon by the learned counsel in
Manmohan Service Station’s case (supra) is however
totally different and the same does not support the
proposition of law canvassed by him. In the said case, the
Court was dealing with a situation where the plaintiff had
filed the suit for protection of his possession and had
claimed injunction. It was in those circumstances that the
Court had ruled that the plaintiff was entitled to protect his
possession. Certain observations were also made with
regard to the right of such a plaintiff to seek declaration
but in my considered view the said observations are
wholly orbiter. As a matter of fact, the Court in the said
case was merely deciding an application for interim
injunction filed by the said plaintiff under Order 39 Rules
1 and 2 of the Code of Civil Procedure. In these
circumstances, the said authority has no application to
the proposition of law canvassed by the learned counsel
for the appellant and cannot be used by the present
plaintiff-appellant in his favour.
12. Similarly, in case of ‘Smt. Mohinder Kaur & Anr. Versus
Teja Singh & Ors.’ 2010 (2) RCR (Civil) 779, this court has
observed that a suit for declaration on the basis of adverse
possession is not maintainable because the plea of adverse
possession is available to the defendant against the plaintiff. The
judgment in Bhim Singh versus Zile Singh (supra) has been relied
and the court has observed thus:-
“12. After hearing the learned counsel for the parties, I have
found that even if it is conceded that the trial Court should
have proceeded under Order 17 Rule 2 C.P.C. instead of
Order 17 Rule 3 C.P.C., yet in view of the fact that the
suit has been filed for seeking declaration under Section
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34 of the specific Relief Act that the plaintiffs have
become owner of the suit property by way of adverse
possession, the decree cannot be granted in view of the
decision of this Court in Bhim Singh’s Case (Supra) in
which it has been held that no declaration can be sought
by a plaintiff with regard to his ownership on the basis of
an adverse possession because plea of adverse
possession is available only to a defendant against a
plaintiff.”
13. Both the courts below have discarded the title of both the
parties on the basis of sale deeds in view of findings recorded under
Issue No.6, but decreed the suit of the plaintiff solely on the plea of
adverse possession for which there is no justifiable reasons shown in
terms of necessary ingredients as well as maintainability of the suit
itself. Resultantly, this court finds that a suit for declaration, on the
basis of adverse possession, is not maintainable. This plea is not
available to the plaintiff rather this plea is available to the defendant
against the plaintiff. This legal proposition if read in conjunction with
missing ingredients of adverse possession, make this court to hold
that the suit of the plaintiff itself is not maintainable. Therefore, the
impugned judgments and decrees passed by the courts below are
liable to be set aside. Consequently, the same are set aside. The
appeal is allowed and the suit itself is dismissed leaving both the
parties to bear their own costs.
[ Raj Mohan Singh ]
Judge
5 .12.2014
sachin
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