The main legal point established in the judgment is that the plea of adverse possession cannot be taken by the plaintiffs while filing a suit for declaration, and the plea of res sub judice must be specifically raised as a preliminary objection in the written statement.

Sandeep Sharma, J.

1. Since dispute involved in these appeals is qua same land and between same parties, appeal were tagged together for hearing and are being disposed of vide this common judgment. However, for the sake of clarity, facts of both the appeals are being discussed separately.

RSA No. 77 of 2005

2. Appellants in this case, filed a suit under Section 34 of the Specific Relief Act, 1963 and Section 9 CPC, for decree of declaration to the effect that plaintiff No. 1-Mohan Singh had become owner of the land comprised in Khewat No. 39, Khatauni No. 78 Khasra Nos. 27 (8-10 Bigha) and plaintiffs No. 2 to 13 had become owners of land comprised in Khewat No. 39, Khatauni No. 77, Khasra Nos. 33 (2-13 Bigha), No. 26 (5-5 Bigha), No. 28 (4-3 Bigha) situated in Village Uttamwala, Baraban, Tehsil Nahan, District Sirmaur, Himachal Pradesh as per Jamabandi for the year 1999-2000 by way of adverse possession and respondents-defendants have no right, title or interest over the suit land. Suit was registered as Civil Suit No. 55/1 of 2002. It was averred in the plaint that the predecessor-in-interest of the plaintiff as well as defendants namely Netar Singh, Jagat Singh, Jiwan Singh and Pratap Singh were co-sharers of land situate at Village Uttamwala Baraban, Tehsil Nahan, District Sirmaur, HP as per Jamabandi for the year 1999-2000. Plaintiffs further claimed that plaintiff No. 1 was sole owner in possession of Khasra No. 27 measuring 8-10 Bigha, which was given to him by his father Shri Netar singh and was recorded in the revenue records and no co-owner had any right, title or interest over the same. It was further averred in the plaint that an application for partition, i.e. Jiwan Singh vs. Jagat Singh, being Case No. 19/9 instituted on 9.7.1974 and decided on 9.8.1977 was filed. Instrument of partition was prepared on 28.7.1979. Netar Singh, predecessor-in-interest of plaintiff No. 1 was allotted land in Khasra Nos. 26/2, 27/9, 28/2, 33/4, Jagat Singh was allotted land in Khasra Nos. 27/3, 33/ and 28/1. Similarly, Jiwan Singh was allotted land in Khasra Nos. 27/2, 33/2 and Pratap Singh was allotted land in Khasra Nos. 26/1, 271 and 33/3. Plaintiffs are successors-in-interest of Netar Singh and defendants are successor-in-interest of Jagat Singh, Jiwan Singh and Pratap Singh. Plaintiffs No. 2 to 13 further claimed that they are in continuous possession of Khasra Nos. 33, 26 and 28, even though this land had been allotted to the defendants, but they did not get possession of this land, which was in their possession since the time, instrument of partition was framed. It was further claimed that plaintiff No. 1-Mohan Singh had become owner of land comprised in Khasra No. 27, by way of adverse possession. Plaintiffs further claimed that suit land is in their possession since 9.8.1972, when instrument of partition was framed. Plaintiff further claimed that he has become owner-in-possession qua the entire area of suit land, by way of adverse possession, holding the same adversely to the defendants, even from the date of physical partition as described above. Plaintiffs further claimed that they have become owners of land in their possession, which was allotted to the defendants, as such, all the rights, title and interest of theirs are extinguished and entries recorded in revenue record, showing co-sharers in the column of ownership are against facts and not valid and legal.

3. Defendants by way of a joint written statement, disputed aforesaid claim of plaintiffs on the ground of maintainability, cause of action, non-joinder of parties, as well as valuation. Defendants specifically denied that the plaintiffs have become owners by way of adverse possession qua the suit land. Defendants admitted that one of the co-sharers i.e. Jiwan Singh had filed a partition application for the partition of the suit land including Khasra No. 27. Defendants, further stated that partition application was contested in different revenue courts, but,