AVNEESH JHINGAN, J.

C.M. No.1779-C of 2014

This is an application for condonation of delay of 147 days in filing the appeal. Notice was issued only in civil miscellaneous application.

For the reasons stated in the application, which is duly supported by an affidavit and after hearing learned counsel for the parties, the application is allowed and delay of 147 days in filing the appeal is condoned.

RSA No. 791 of 2014

The present appeal is at behest of the plaintiff being aggrieved of concurrent dismissal of his suit for declaration with consequential relief of permanent injunction, vide judgment and decree dated 23.04.2011 as well as dismissal of Ist Appeal by the First Appellate Court, vide judgment and decree dated 16.04.2013.

1. For the purpose of convenience, the parties are being referred as per their original position in the plaint.

2. The facts giving rise to the present litigation are that plaintiff filed a suit for declaration with consequential relief of permanent injunction claiming himself to be owner in possession of residential house shown in red colour and with letters 'A' B' C' D' E' in the site plan. The detail of the property was given in the suit. It was averred that the plaintiff was in continuous possession of the suit property since the time of his ancestors. It was further averred that he was in possession of the suit property for the last more than 20 years openly without any obstruction and had become owner thereof by way of adverse possession. On coming to know that defendant No.3, in collusion with defendants No.1 and 2, intend to interfere in the peaceful possession of the plaintiff and to demolish his house, the suit was filed.

3. On notice defendants No. 1 and 2 filed their joint written statement and defendant No.3 filed his separate written statement.

4. The learned Trial Court framed the following issues:

(1)Whether the plaintiff is owner in possession of the house in dispute since time of his forefather, as alleged in the head note of the plaint, if so to what effect? OPP

(2) Whether the plaintiff has no locus standi to file the present suit? OPD

(3) Whether the suit is not maintainable in the present form? OPD

(4)Relief.

5. In order to support the suit, the Special Power of Attorney of the plaintiff appeared as PW1.

6. In order to rebut the claim in the suit, Tara Chand, defendant No.3, appeared as DW1. Deep Chand appeared as DW2, Clerk from DC Office Jagdish appeared as DW3 and Halqa Patwari-Surender appeared as DW4.

7. The learned trial Court, after appreciating the facts of the case and considering the evidence produced, decided issue No.1 against the plaintiff and issues No. 2 and 3 were jointly dealt with and answered against the defendants as not argued. Consequently, the suit was dismissed.

8. Being aggrieved of the judgment and decree, the appeal was filed by the plaintiff. The District Judge, Bhiwani, vide judgment and decree dated 16.04.2013, dismissed the appeal. Hence, the present regular second appeal has been filed.

9. Following three questions of law have been framed in the present appeal:

(i)Whether the orders passed by the courts below are based on conjecture and surmises?

(ii) Whether the Courts below have failed to apply their judicial mind in accepting the plea of the defendant that the plaintiff is not entitled to the relief prayed in the suit in question?

(iii)Whether the possession of the plaintiff over the suit property for more than 20 years amounts to adverse possession and the respondent party is not entitled to any relief as the plaintiff has duly proved his ownership and possession?

10. At the time of arguments, the counsel restricted his arguments to question No.3. He contended that the plaintiff was possessing the suit property for the last 20 years and therefore, he has become owner of the property by way of adverse possession.

11. The legal aspect of the issue raised is no longer res-integra.

12. The law is well settled that the plea of adverse possession can be taken as a