A person in adverse possession cannot file a suit for declaration and the plea of adverse possession is available only as a defence.

Ajay Kumar Mittal, J.

1. Having lost before the Courts below, the appellant-plaintiff No.3 has approached this Court by way of instant Regular Second Appeal challenging the judgment and decree dated 17.8.2016 passed by the District Judge, Sonipat, affirming that of the Civil Judge (Junior Division), Sonipat, whereby the suit of the plaintiffs for declaration with consequential relief of permanent injunction, was dismissed.

2. The facts necessary for the disposal of the present appeal are that the plaintiffs filed a suit for declaration with consequential relief of permanent injunction alleging that their father Shri Vishwa Nath was in possession of the property as detailed and described in para 1 of the plaint. It was further alleged that the disputed property forming part of the house was in abandoned condition in the year 1960 and the father of the plaintiffs had started living there along with family. The house in question was in a dilapidated condition and, therefore, the father of the plaintiffs had reconstructed it in the year 1975 after getting the site plan sanctioned from the Municipal Committee, Sonipat. It was further alleged that from the time of their father, the plaintiffs were continuing in actual physical possession of the disputed property and their possession over the property in question was more than 50 years. According to the plaintiffs, they had become owner of the suit property by way of adverse possession and the defendants had no right, title or interest over the same. The said suit was contested by the defendants by filing a joint written statement and raising various preliminary objections. It was pleaded therein that the possession of the plaintiffs over the suit property was as of tenants and that the husband of defendant No.1 had let out the suit property to the father of the plaintiffs at the rate of Rs. 700/- per month, in addition to house tax and later on the said rent was enhanced. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made.

3. From the pleadings of the parties, the trial Court framed the following issues:-

1. Whether the plaintiffs have become absolute owners of the house (as detailed in para No.1 of the plaint) by way of adverse possession? OPP

2. If issue No.1 is proved, whether the plaintiffs are entitled for a decree of permanent injunction, as prayed for? OPP

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

4. Whether the plaintiffs have no locus standi to file the present suit? OPD

5. Whether the plaintiffs have not come to the court with clean hands? OPD

6. Whether the plaintiffs have no cause of action to file the present suit? OPD

7. Relief.

4. On appreciation of the oral as well as documentary evidence led by the parties, the trial Court came to the conclusion that admittedly the plaintiffs had already been ejected from the house in question by the Rent Controller, Sonipat, therefore, they had no right, title or interest in the property in question. Accordingly, the trial Court vide judgment and decree dated 31.8.2013 dismissed the suit of the plaintiffs. Trial Court taking up issues No.1 and 2 together concluded that the same did not stand proved with the following findings:-

“9. After appreciating the rival contentions raised by learned counsel for both the parties and taking into consideration the evidence led on record and the facts and circumstances of the present case, I am of the considered view that it is the settled proposition of law that the plaintiff has to stand on his own legs and has to prove his own case and he cannot take advantage of the weakness of the defendants. Reliance has been placed on Punjab Urban Planning and Development Authority Vs. M/s Shiv Saraswati Iron and Steel Re-rolling Mills 1998 (3) LJR 106. In the instant case,

Firstly, in para No.2 of the plaint, the plaintiffs have admitted that the said portion of the house was abandoned in the year 1960 and thus, their father started livi