A party claiming adverse possession against a true owner effectively admits the owner's title. Such an admission is binding, and the claimant cannot subsequently deny the owner's title or claim the suit is barred by Order II Rule 2 C.P.C. after failing to prove the plea of adverse possession.

Parmod Goyal, J.

Unsuccessful plaintiff is aggrieved by judgment and decree dated 27.04.2011, passed by learned Additional Civil Judge (Senior Division), Panipat, vide which her suit for possession was dismissed as well as judgment and decree dated 07.08.2013, passed by learned Additional District Judge, Panipat, vide which her first appeal was also dismissed.

2. Plaintiff/appellant in her suit for possession sought recovery of possession of agriculture land measuring 1 kanal 5 marlas comprised in Khasra No.23/18 min (0-10) and 23/22/1 (0-15) situated in revenue state of village Siwah Kheri, District Panipat, on the basis of registered sale deed No.598 dated 28.06.1990. It is the case of appellant/plaintiff that she had purchased the suit land from its previous owner Vidyawanti. Despite purchase of land vide registered sale deed and consequent mutation bearing No.1499 dated 11.11.1991 (Ex.PW1/D), defendants were in unauthorized possession of suit land are not vacating the suit land, hence suit for possession was preferred. It was also asserted that earlier defendants had claimed adverse possession over the suit land wherein suit preferred by them was dismissed and civil appeal against said order was partly allowed vide judgment and decree dated 26.08.2002 Ex.P-2 to the effect that defendants who were plaintiffs in the said case would not be dispossessed except for due course of law. It is asserted that since appellant/plaintiff is owner of suit property, therefore, she is seeking possession of the suit land.

3. On notice defendants No.5, 6, 8 to 14 vide their joint written statement pleaded that appellant/plaintiff is neither owner nor in possession of suit land, suit is barred by limitation, appellant/plaintiff has on cause of action and appellant/plaintiff has suppressed material facts. It was asserted that appellant/plaintiff has no legal right to recover possession as Vidyawanti herself was not having any right to sell the suit land to the appellant/plaintiff. It was asserted that in earlier litigation also appellant/plaintiff was one of the defendants and had not filed any counter claim regarding her ownership qua suit land and as such appellant/plaintiff is estopped from claiming such right, title and interest in the suit land. It was asserted that Kalu Ram predecessor in-interest of appellant/plaintiff was in possession of suit land since 1985 and many litigation had taken place between him and Vidyawanti, therefore, the sale deed has no effect on the rights of defendants.

4. From pleading of the parties, following issues were framed:-

1. Whether plaintiff is entitled for possession of the property in dispute as prayed for? OPP

2. Whether the suit filed by the plaintiff is not maintainable in the present form? OPD

3. Whether the plaintiff has no cause of action to file the present suit? OPD

4. Relief.

5. Learned Court of first instance decided issue No.1 against appellant/plaintiff and issue No.2 & 3 against defendants and accordingly, suit of appellant/plaintiff was dismissed. Learned First Appellate Court had affirmed the findings of Court of first instance and had dismissed the appeal preferred by the plaintiff/appellant.

6. Both the Courts below have non-suited appellant/plaintiff on the following grounds:

(i) That appellant/plaintiff has failed to prove the sale deed in her favour and, therefore, has failed to prove her title over the suit land;

(ii) That claim of plaintiff is barred by Order II Rule 2 CPC on the ground that in earlier litigation wherein appellant was also one of the defendants had not filed counter claim to prove he