A consent decree cannot be dismissed on procedural grounds, and adverse possession claims require proof of hostile possession, which was not established.

JUDGMENT

Anil Kshetarpal, J.

Brief facts of the case:-

1.1 This is the plaintiff's second appeal against the concurrent judgments passed by the courts below while dismissing their suit for the grant of decree of possession with respect to land measuring 177 kanals 15 marlas.

1.2 In order to comprehend the issue involved in the present case, some relevant facts, in brief, are required to be noticed, alongwith the following family tree is required to be noticed:-

Deva Singh

Hazura Singh

Natha Singh

(plaintiff no.1)

Bishan Kaur @ Bishno

Kakkar Singh

Buta Singh

Labh Singh

(plaintiff no.2)

Sher Singh

1.3 Smt. Bishno alias Bishan Kaur was owner of the property. Sh. Natha Singh and Sh. Labh Singh, the plaintiffs, filed a suit for the grant of decree of declaration that in a family settlement the property has fallen into their share against Smt. Bishno. She conceded to the claim of the plaintiffs resulting in judgment and decree dated 23.05.1985. However, the court passed the following brief order, the operative part whereof reads as under:-

"Heard. A collusive decree passed. No costs. Decree-sheet be prepared and file be consigned."

1.4 Sh. Sukhdev and Smt. Jangir Kaur filed a civil suit no.471 dated 13.08.1985 for the grant of decree of permanent injunction against Sh. Natha Singh, Sh. Labh Singh and Smt. Bishno. In that suit, the plaintiffs claim themselves to be in possession of the suit land as tenants under Smt. Bishno. Defendants no. 1 to 3 contested the suit claiming that the plaintiffs in that suit were not in possession and previously defendant no.3 Smt. Bishno was the owner and now defendants no. 1 and 2 are owners thereof. It was alleged that even if the land was given on lease for a particular year, after expiry of the period, the plaintiffs could not claim to be in possession as lessees. In that suit, the following issues were settled by the trial court:-

"1) Whether the plaintiffs are in possession of the suit land under defendant No.3, if so its effect? OPP.

2) Whether the plaintiffs are entitled for injunction prayed for? OPP.

3) Whether the plaintiffs have no locus standi to file the suit? OPD.

4) Whether the plaintiffs have no cause of action? OPD.

5) Whether the suit is maintainable in the present form? OPD.

6) Whether the defendants are in possession of the suit land as owner? OPD.

7) Relief."

1.5 The trial court held that from the perusal of the Jamabandis, it is proved that the plaintiffs are in possession as lessees. The court also found there is an entry in the revenue record to the effect that defendant no.1 and 2 namely Sh. Natha Singh and Sh. Labh Singh have become the owners. Ultimately, the court held that the plaintiffs are in possession of the suit land but no more under Smt. Bishno. Thus, the plaintiffs' suit was decreed and the defendants were restrained from dispossessing the plaintiffs from the suit land otherwise than in due course of law. Thereafter on 16.07.1987 Sh. Natha Singh and Sh. Labh Singh filed a suit for possession with respect to land measuring 177 kanals 15 marlas. Smt. Jangir Kaur alias Jagir Kaur filed civil suit no. 120 of 1988 to challenge the correctness of the judgment and decree passed on 23.05.1985, however, the same was withdrawn on 25.08.1989. The plaintiffs suit for possession was dismissed by the trial court, which in appeal has been affirmed by the appellate court.

2. Arguments adduced:-

2.1 Heard the learned counsel representing the parties at length and with their able assistance perused the paperbook, alongwih the requisitioned record.

2.2 Learned counsel representing the appellants has filed synopsis of the case, which reads as under:-

"The Decree dated 23.05.1985 (Ex.A2, pg 88 LCR) is valid as per the following averments:-

The decree has been pleaded in para 2 at backside of pg. No.8 LCR, though the Defendants denied it but no counter claim has been filed to challenge decree.

The Defendant No.3 filed suit to challenge the said decree (Ex.P8, pg. 60 LCR) I.e Civil Suit no.120