IMPORTANT POINT
Adverse Possession--Where ownership and possession is pleaded, with the consent of true owner, possession, howsoever long, would not fructify into ownership by adverse possession.

1. By way of the present Regular Second Appeal, the appellant impugns the judgment and decree, dated 31-10-1980, passed by the learned Additional District Judge, Patiala, whereby an appeal, filed by the defendants/respondents was accepted and the judgment and decree, dated 22-7-1976, passed by the learned Sub-Judge Ist Class, Bassi was set aside.

2. Vide judgment, dated 8-12-2000, this appeal was accepted and the judgment and decree of the first appellate Court, was set aside and the judgment and decree, passed by the trial Court, was restored.

3. The respondents herein preferred Civil Appeal No. 1023 of 2002 before the Hon ble Supreme Court of India. Vide order dated 19-9-2005, the Hon ble Supreme Court of India set aside the judgment of this Court, restored the Regular Second Appeal, and remitted the matter to be decided afresh, after formulating necessary questions of law.

4. A perusal of the record, as also the impugned judgments, in my considered opinion, raise the following substantial questions of law :-

(i) Whether the judgment and decree, passed by the first appellate Court, are perverse for failure to notice the lack of pleadings and evidence in support of the plea of adverse possession?

(ii) Whether a defendant, raising a plea of possession, with the consent of the true owner, can put-forth a claim of ownership by adverse possession?

(iii) Whether mere long established possession, is sufficient to accept a plea of ownership by adverse possession?

A brief narrative of the factual matrix of the present case would be appropriate. The appellant herein filed a suit for possession, pleading that he was the sole surviving heir of one Ludan Singh son of Kabul Singh, who passed away issueless. Ludan Singh was owner of land, measuring 9 Bighas 10 Biswas, comprised in Khasra No. 41, and Khewat/Khata No. 46/77, situated in village Khalas Pur Tehsil Sirhind, as reflected in the Jamabandi for the year 1969-70. It was further pleaded that the defendants (respondents herein), had no right, title or interest, in the aforementioned property but had manipulated the revenue record to reflect their names, as owners, 5 to 6 years ago.

5. The respondents resisted the suit and specifically pleaded that they had become owners of the suit land, by way of a mutual exchange. They exchanged the land, subject-matter of the suit, with Ludan Singh, for their land in village Mulanpur. A mutation reflecting this exchange was sanctioned on 30-4-1966 at the behest of Ludan Singh. In the alternative, however, they pleaded that if mutual exchange was not established, they had become owners by adverse possession. They also denied any relationship between the appellant and Ludan Singh. The appellant rebutted these pleadings by way of replication.

6. The learned trial Court framed the following issues :-

"1. Whether the plaintiff is the nearest heir? OPP

2. Whether the defendants have exchanged their property with the suit property of Ludan Singh and if so, with what property, the property in dispute was exchanged? OPD

3. Whether defendants have become owners of the suit land through adverse possession for more than 12 years?

4. Relief."

7. The parties led evidence and upon conclusion thereof, the learned trial Court decreed the suit. On issue No. 1, the appellant was held to be the nearest heir of Ludan Singh, deceased. On issue No. 2, the learned trial Court recorded a categoric finding that no exchange was proved or established. On issue No. 3, the learned trial Court held that evidence, adduced by the respondents, was insufficient to hold that they had become owners of the land in dispute, by way of adverse possession. It was held that the respondents had failed to establish the attributes of adverse possession, namely, the date, they entered possession, the nature of their possession, whether it was open, hostile, undisturbed, to the knowledge of Ludan Singh etc. It was also held that as per the case, set out by the respondents and as reflecte