The Jammu & Kashmir and Ladakh High Court has held that a plaintiff seeking a declaration of ownership on the basis of adverse possession does not raise contradictory pleas merely by referring to an agreement to sell to explain how possession of the disputed property was originally obtained. Justice Sanjay Dhar, while dismissing a civil revision petition filed by Tara Chand and another, upheld an order of the trial court that had decided preliminary issues in favour of the plaintiff, Bhagat Ram.

The dispute arises out of a suit filed by Bhagat Ram seeking a declaration that he is the exclusive owner in possession of 4 kanals and 1 marla of land in Village Mooni, Tehsil Billawar. According to the plaint, the predecessor-in-interest of the defendants and her co-sharer handed over 24 kanals and6 marlas of land, including the suit land, to the plaintiff after receiving the entire consideration of Rs 30,000 under an agreement to sell dated March12,1991. A sale deed was later executed for 20 kanals and5 marlas, but the defendants did not execute a deed for their share in the remaining land. The plaintiff claimed to have remained in possession since1991 without object ion and sought a declaration based on adverse possession.

The defendants, in their written statement, raised preliminary object ions that the suit was not maintain able because the property was not properly described as required under Order VII Rule3 of the Code of Civil Procedure, and that the plaintiff’s reliance on an agreement to sell while claiming adverse possession was contradictory. The trial court framed two preliminary issues: whether the suit was maintain able, and whether the suit was not maintain able for want of proper description. The court decided both issues in favour of the plaintiff.

Burden of Proof on Party Raising Objection

The petitioners challenged the order arguing that the issue of maintain ability involved a mixed question of law and fact and could not be decided without evidence, and that the onus was wrongly placed. Justice Dhar observed that the burden to prove non-maintain ability lay on the defendants, as civil courts have jurisdiction to try all suits unless expressly or inpliedly barred. “There was no need to lead evidence on the said issue because its determination depended upon the pleadings set up by the plaintiff,” the court noted. The court found that the trial court’s wording in framing the issue may have been erroneous but no prejudice was caused to the defendants.

No Contradiction in Pleas

One the core issue, the court held that the plaintiff’s claim of ownership by adverse possession was not contradictory with the reference to the agreement to sell. “The plaintiff seeks to claim ownership by way of adverse possession on the basis of his alleged uninterupted possession and not on the basis of the agreement to sell,” the court observed. The reference to the agreement was only to explain the manner in which the plaintiff entered into possession. Therefore, at the stage of examining maintain ability, the plaintiff could not be said to have raised contradictory pleas so as to render the suit unmaintainable.

Property Description Sufficient

On the object ion regarding property description, the court noted that the plaintiff had specified the relevant khasra numbers and measurements and also furnished the khewat and khata numbers pertaining to the land. “The description furnished in the plaint is, therefore, sufficient to identify the suit property,” the court said, find ing that the requirements of Order VII Rule3 CPC were complied with.

Decision

For the foregoing reasons, the High Court dismissed the revision petition, find ing no ground to interfere with the trial court’s order. The ruling clarifys that a litigant claiming adverse possession may refer to an prior agreement to sell to explain entry into possession without rendering the suit legally untenable. The case continues before the trial court on the merit of the adverse possession claim.