Adverse possession does not confer ownership or title on the adverse possessor, and a suit merely based on adverse possession is not maintainable.

RAJESH BINDAL, J.

1. The defendants are in appeal against the concurrent findings of fact recorded by both the Courts below whereby the suit filed by the plaintiff for declaration to the extent that he has become owner in possession of the suit land on the basis of adverse possession, was decreed.

2. Briefly, the facts are that the suit was filed by the respondent-plaintiff seeking a declaration that he had become owner of the land measuring 23 kanals 6 marlas being in possession thereof since 1922. The claim was contested by the appellants pleading that as per the revenue record, they are the owners of the property and the plaintiff was tenant under the predecessors of the defendants-appellants. The plea was also raised regarding non maintainability of the suit on various grounds. The trial Court decreed the suit. The appeal filed by appellant No. 1 was dismissed by the learned Lower Appellate Court. The respondent was declared to be owner of the suit property by way of adverse possession. The present appeal has been filed by the defendants.

3. When the case was taken up for hearing on 26.8.2013, the following substantial questions of law were framed for determination by this Court:

(i) Whether the plaintiff is competent to seek for declaration of the property by adverse possession or whether the same is available only to a defendant to plead as a source of title?

(ii) Whether the plaintiff is not estopped from setting up adverse claim against the owner of the property without actual surrender to landlord and re-entry in the light of Section 116 of the Evidence Act?

4. The arguments were heard and the judgment was reserved on 26.8.2013.

5. The learned single Judge of this Court vide order dated 11.9.2013, referred the matter for consideration by a larger Bench for considering various judgments on the issue pertaining to declaration sought by the plaintiff as owner on the basis of adverse possession. The matter was heard by a Division Bench and the reference was answered vide order dated 8.12.2014 opining that no declaration can be sought by a plaintiff with regard to ownership on the basis of adverse possession, as such a plea is available only to the defendant.

6. Learned counsel for the appellants submitted that as in the suit filed by the respondent/ plaintiff, the relief was for declaration as owner on the basis of adverse possession and it has been opined by the Division Bench of this Court that such a relief cannot be claimed by a plaintiff, as this plea is available only to a defendant, hence, the suit filed by the respondent/plaintiff deserves to be dismissed, while accepting the appeal.

7. On the other hand, learned counsel for the respondent submitted that no specific plea having been raised by the appellants in the written statement filed regarding non-maintainability of the suit on this ground, such a plea is not available at this stage. He further submitted that there is finding already recorded that the respondent is in possession of the property and plea of adverse possession is available to a defendant. Even for seeking possession, the appellants will have to file a suit, in which plea of adverse possession will be available to the respondent, hence, to avoid multiplicity of litigation, the matter be decided here.

8. Heard learned counsel for the parties and perused the paper book.

9. As already noticed above, this Court had framed two issues arising out of appeal. Main being regarding maintainability of the suit filed by the plaintiff claiming declaration as owner on the basis of adverse possession. The issue was referred to Division Bench for consideration. Vide order dated 8.12.2014, the reference was answered holding that no declaration can be sought by a plaintiff claiming ownership on the basis of adverse possession, as such a plea is available only to the defendant. Relevant paras thereof are extracted below:

14. Thus, a short but a significant question that arises is, whether on an extinguishment of such