IMPORTANT POINT
Mere possession how so long it may be is not sufficient to divest the real owner of his title over the property.

L.N. Mittal, J.—Plaintiffs Karan Singh etc having lost in both the courts below have filed this second appeal.

2. Plaintiffs sought declaration that they have become owners of suit land measuring 1 kanal 4 marlas by adverse possession having been in adverse possession thereof since the year 1960.

3. The defendants pleaded that they are owners of the suit land and they gave the suit land to the plaintiffs as licensees but since plaintiffs have repudiated the title of the defendants, licence of the plaintiffs has been terminated and therefore, defendants are entitled to possession of the suit land. Defendants made counter claim for the same.

4. Plaintiffs repudiated the counter claim of the defendants and reiterated the averments made in the plaint.

5. Learned Civil Judge (Junior Division), Sonipat vide judgment and decree dated 25.10.2011 dismissed the plaintiffs suit and decreed the counter claim of the defendants. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Sonipat vide judgment and decree dated 15.3.2012. Feeling aggrieved, plaintiffs have filed this second appeal.

6. I have heard learned counsel for the appellants and perused the case file.

7. Counsel for the appellants contended that appellants are proved to be in possession of the suit land since the year 1963 in view of revenue record and therefore; plaintiffs suit should have been decreed and defendants counter claim should have been dismissed. The contention is completely merit less and untenable. Firstly suit seeking declaration of ownership by adverse possession is not maintainable because adverse possession can be set up as defence and not to claim ownership by adverse possession as plaintiff. In this view, I am supported by two judgments of this Court in Dewaki and others v. Dayawanti and others, 2006(3) PLR 132 and Bhim Singh and others v. Zile Singh and others, 2006(3) PLR 159. Secondly there is no cogent evidence to show that possession of the plaintiffs was adverse and hostile to the defendants who are admittedly owners of the suit land. Mere possession how so long it may be is not sufficient to divest the real owner of his title over the property.

8. Counsel for the appellants contended that appellants are recorded gair-marusi over the suit land in the revenue record and therefore, being tenants, decree for possession in counter claim of the defendants could not be passed by the Civil Court. The contention is devoid of substance being not only beyond the pleadings but completely contrary and contradictory to the pleadings of the plaintiffs-appellants. The plaintiffs never claimed themselves to be tenants over the suit land. On the contrary, the plaintiffs claimed themselves to be in adverse possession thereof. Consequently, only civil court has jurisdiction to pass decree for possession of the suit land against plaintiffs being in unauthorized possession of the suit land. Moreover entry in the revenue record depicting the possession of occupant as gair-marusi does not imply that the possession is as tenant. As per practice, expression gair-marusi is recorded in the revenue record when proper capacity of the occupant is not known to the revenue official. Whether the occupant is tenant or not can be ascertained from the entry in the column of rent. In the instant case, entry in column of rent in jamabandies completely demolishes the case of the plaintiffs and substantiates the case of the defendants. Perusal of jamabandies for 1963-64 Ex. P1, for 1968-69 Ex. P2, for 1973-74 Ex. P3, for 1978-79 Ex. P4, for 1983-84 Ex. P5, for 1988-89 Ex. P6, for 1993-94 Ex. P7 and for 1998-99 Ex. P8 reveals that possession of plaintiffs has been recorded to be without payment of rent. Thus no rent was payable by the plaintiffs. Consequently, plaintiffs cannot be said to be in possession of the suit land as tenants. It has also been recorded in the column of rent that capacity of possession of the plaintiffs is not known. Thus ent