Adverse Possession - Suit for possession by way of adverse possession, without disclosing the name of true owner is not maintainable.

Hemant Gupta, J.

1. The defendant is in second appeal, aggrieved against the judgment and decree passed by the first Appellate Court, arising out of a suit for possession filed by the respondents.

2. The plaintiff has filed a suit for recovery of possession on the ground that he is in continuous possession of suit property since 1945, which was being used by the plaintiff as part of its mill and factory as it adjoins the factory of the plaintiff and is part of Khasra No. 115 Khata No. 5811 situated in village Gobindgarh. The plaintiff has claimed that the possession of the plaintiff over the site was peaceful, legal, continuous for the last more than 30 years and the same was also open and within the knowledge of the defendant. It is also pleaded that the defendant has no concern with this site nor is the owner of the site nor it has any right or interest thereon. The plaintiff has claimed that the defendant has issued a notice to the plaintiff on 4,2.1974 admitting the possession of the plaintiff. The same was replied by Nahar Singh, partner of the firm, which reply was incorrect one. The plaintiff alleges that the notice dated 4.2.1974 was illegal, void, unauthorized, unconstitutional, mala fide and discriminatory. It is alleged that the plaintiff earlier filed a suit for injunction along with an application for grant of ad-interim injunction. The trial Court vacated ad-interim injunction on 31.7.1974 and the appeal against the said order was dismissed on 9.8.1974. It is the case of the plaintiff that the plaintiff was dispossessed in an illegal and forcible manner on 10.8.1974. The plaintiff claimed that since the possession of the plaintiff was that as an owner for more than 30 years, which possession was hostile, open and within the knowledge of the defendant, therefore, the defendant was bound to deliver back the possession of the site in suit to the plaintiff.

3. In written statement, it was alleged that the plaintiff was in possession of the site, which was a part of public street. The same was in possession of the plaintiff for some time. However, the possession of the plaintiff since 1945 was denied. The question whether the property falls in a particular Khasra Number was stated to be a matter of verification from record. It was further alleged that the plaintiff is in possession of the land for the last two years and the land vests in the Municipality. One of the issues framed was whether the plaintiff has become owner by adverse possession at the time of dispossession of the plaintiff by the defendant. On the said issue, the learned trial Court recorded a finding that the plaintiff was in possession for a short period, and not for the last 30 years and that the plaintiff was not entitled to re-delivery of possession. In appeal against the said judgment, the learned District Judge affirmed the finding that the plaintiff has not become owner by adverse possession but found that no document under which property in question was transferred by the Municipality was brought on record nor the record of the Municipality shows that the property is in ownership of the Municipality and, therefore, the plaintiff is entitled to possession on the basis of his possessory title. It is the said finding, which is challenged in the present appeal.

4. Learned Counsel for the respondent has, during the course of arguments, raised a preliminary objection that the appeal is not maintainable for want of Resolution by the Municipality, Learned Counsel for the appellant has produced Resolution No. 115 dated 25.2.1980 passed by the Municipality approving the office order dated 7.2.1980 under Section 35 of the Punjab Municipal Act, 1911 authorising the Executive Officer to file appeal against and also approving the expenses to be incurred in respect of appeal before this Court against the judgment passed by the learned District Judge, Patiala.

5. In view of the said Resolution, I do not find any merit in the argument raised by the lea