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2012 Supreme(P&H) 713
2012(3) LAW HERALD (P&H) 1950
IN THE HIGH COURT OF PUNJAB & HARYANA
Before
The Hon’ble Mr. Justice Tejinder Singh Dhindsa
RSA No.1278 of 2012(O&M)
Joginder Kaur
v.
Gurbachan Kaur & Ors.
{Decided on 30/05/2012}
For the Appellant:Mr. Amarjit Markan, Advocate.
For the Caveators/Respondents:Mr. Chetan Mittal, Sr. Advocate with Mr. Akshay Bhan, Advocate.
Adverse Possession--Ejectment order against predecessor in interest of plaintiff for non-payment of rent--Order not executed with--Limitation period of 12 years--Claim of ownership by plaintiff basis of adverse possession--Not maintainable.
Headnote:(A) Limitation Act, 1963, Art.27--Adverse Possession--To assert title by way of adverse possession it requires pleadings to the effect as also corroborating such plea by way of leading cogent evidence to show that the possession was continuous, open, hostile and adverse to the true owner--As such it is imperative that such alleged adverse possession must start with a wrongful dispossession of the rightful owner. (Para 13)
(B) Limitation Act, 1963, Art.27--Adverse Possession--Plaintiff in a suit seeking declaration for having become the owner of the suit property by way of adverse possession itself is not maintainable--A person in adverse possession can only raise such plea by way of defence and not by way of offence by filing a suit. (Para 15)
(C) Limitation Act, 1963, Art.27--Adverse Possession--Ejectment order against predecessor in interest of plaintiff for non-payment of rent--Order not executed with--Limitation period of 12 years--Claim of ownership by plaintiff basis of adverse possession--Not maintainable--Held;For a tenant to claim title of the suit land by way of adverse possession, he would have to prove the act of ouster--Mere non-payment of rent would not constitute adverse possession--Never ousted from the suit property in pursuance to the ejectment order--It was the pleadings in the plaint itself that the possession of the suit land had never been surrendered by said despite the ejectment order--Ingredient of adverse possession having not been established. (Para 17)
Mr. Tejinder Singh Dhindsa, J.: - Plaintiff filed a suit seeking a decree of declaration to the effect that she has become owner in possession of the suit land by way of adverse possession and the mutation entries no.990 and 991 sanctioned on 1.1.2002 and the orders dated 21.8.1980 and 6.8.1984 passed by the Assistant Collector 1st Grade, Karnal are null and void and not executable under Article 136 of the Limitation Act. The relief of permanent injunction was also sought for so as to restrain the defendants from interfering in the peaceful and continuous possession of the plaintiff in the capacity of owner as also restraining them from alienating, selling or creating any charge on the suit property.
2. Briefly noticed, it was pleaded that defendant no.1 Gurbachan Kaur was recorded the owner of the suit land measuring 74 kanals 3 marlas situated in village Singra, Tehsil Nissing, District Karnal as per Jamabandi for the year 1996-1997. Anokh Singh, predecessor-in interest of the plaintiff was recorded to be in possession of the suit land as gair marusi and he was recorded in occupation on payment of 1/3rd batai. Defendant no.1 had preferred objections under the provisions of the Punjab Security of Land Tenures Act for ejectment of said Anokh Singh on the ground of non-payment of rent. Vide order dated 21.10.1981 the Assistant Collector 1st Grade, Karnal passed an order of ejectment against Anokh Singh and upon an appeal having been preferred against such order of ejectment, the same was accepted and the case was remanded back to the Assistant Collector 1st Grade, Karnal vide order dated 9.4.1981 passed by the Collector, Karnal. In terms of passing a fresh order dated 6.8.1984 the Assistant Collector 1st Grade, Karnal passed an ejectment order against Anokh Singh in respect of the suit property. The ejectment order was never executed by defendant no.1 and even though, the relationship of landlord and tenant ceased to exist upon the passing of the ejectment order but the possession of Anokh Singh continued in the capacity of a trespasser/unauthorized occupant. Accordingly, it was pleaded that the possession of Anokh Singh, the predecessor in interest of the plaintiff became hostile, open and continuous to the knowledge of defendant no.1. Defendant no.1 was stated to have suffered a collusive decree in favour of Bakha Singh and Jasbir Kaur i.e the adopted daughter of defendant no.1 vide Civil Court judgement and decree dated 22.2.1985 and mutation no.633 was sanctioned in their favour on 17.2.1986. It was pleaded that such decree was collusive and the possession of the suit land was never handed over. Jasbir Kaur was stated to have died on 26.4.1987 and mutation no.990 dated 1.1.2002 was sanctioned in favour of defendant no.2. Bakha Singh i.e husband of Jasbir Kaur was also stated to have died on 17.3.2001 and mutation no.991 was also sanctioned in favour of defendant no.2 on 1.1.2002. It was pleaded that in terms of Article 136 of the Limitation Act the order of ejectment passed by the Assistant Collector 1st Grade, Karnal dated 6.8.1984 was executable within a period of 12 years i.e up to 5.8.1996. Such period had expired long back and on account of the open, continuous and hostile possession of the plaintiff a decree of declaration for having become owner in possession by way of adverse possession be granted.
3. The defendants contested the suit in terms of filing a joint written statement as also a counter claim. It was stated that Anokh Singh had been occupying the suit land on payment of 1/3rd batai. Upon his death his legal heirs inherited the tenancy rights. The filing of ejectment application against Anokh Singh for non-payment of rent was admitted and the factum of passing of the order of ejectment against Anokh Singh on 6.8.1984 was also admitted. The defendants took a stand that after the passing of the ejectment order Anokh Singh and his sons approached defendant no.1 and requested that he be allowed to cont
