Punjab-Haryana High Court
Bijender vs Surender Pal Singh And Another on 16 October, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:134897
RSA-3565-2023 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
114
RSA-3565-2023 (O&M)
Reserved on : 29.08.2024
Pronounced on : 16.10.2024
Bijender ...... Appellant
versus
Surender Pal Singh and another ...... Respondents
****
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Sant Lal Barwala, Advocate
for the appellant.
*****
PANKAJ JAIN, J.
1. Defendant is in appeal. For convenience, parties
hereinafter are referred to by their original position in the suit i.e. the
appellant as defendant and respondents as the plaintiffs.
2. Plaintiffs filed suit for possession and permanent injunction
pleading that they are owner in possession of Gair Mumkin comprising
khewat No.273//204, khatoni No.302, khasra No. 263(4-5), situated
within the revenue estate of Paposa, Tehsil Bawani Khera, District
Bhiwani. Plaintiffs want to construct their house on a 358 sq. yards plot
which is part of the aforesaid land. Demarcation was conducted on
05.01.2018 in which it came to light that defendant No.1 and father of
defendants No.2 and 3 have illegally encroached upon the part of the
land. Defendants though initially gave assurance to hand over the
possession of the encroached land but later on resiled. The plaintiffs
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thus prayed for decree of possession alongwith consequential relief of
permanent injunction restraining the defendants from altering the nature
of the suit property.
3. Defendants No.2 and 3 were proceeded ex-parte. Suit was
contested by defendant No.1-appellant. Encroachment was denied. It
was claimed that in the year 1998, father of defendant No.1 got khasra
No.252 demarcated and constructed house over the plot in question.
The demarcation claimed by the plaintiff was never carried out in
presence of the answering defendant and thus same were binding upon
him.
4. On the basis of pleadings raised by the parties, following
issues were framed:-
"1. Whether the plaintiffs are entitled for relief of
possession with consequential relief of permanent
injunction as prayed for? OPP
2. Whether the suit of the plaintiffs is not maintainable
in the present form? OPD
3. Whether the plaintiffs have no locus standi to file the
present suit? OPD
4. Whether the plaintiffs have no cause of action to file
the present suit? OPD
5. Whether the plaintiffs are estopped by their own act
and conduct from filing the present suit? OPD
6. Whether the plaintiffs have concealed the true and
material facts from the court? OPD
7. Whether the suit of the plaintiffs is hopelessly time
barred? OPD
8. Relief."
5. While deciding issue No.1, Trial Court came to the
conclusion that plaintiffs proved on record ownership by proving
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jamabandi for the year 2015-16 Ex.P-1, wherein they have been
recorded co-owners over the suit property to the extent of 1/2 share
each in view of the record of right having been proved. Demarcation
report Ex.P-4 has been proved which shows encroachment by defendant
No.1 to the extent of 160 sq. feet. Resultantly, issue No.1 was decided
in favour of plaintiffs and against the defendants. Issue No.2 to 4 were
also decided against the defendants. Resultantly, suit filed by the
plaintiffs was decreed. The findings stands affirmed by the Lower
Appellate Court in appeal preferred by defendant-appellant.
6. Counsel for the appellant while drawing attention of this
Court to demarcation report dated 18.07.1999 as Ex.DW-2/A submits
that even if any cause of action accrued in favour of plaintiffs, the same
was on 18.07.1999 when the defendant was found to be in illegal
possession over the suit property. Thus, the present suit filed in the
year 2018 is barred by limitation and the Courts below erred in
decreeing the suit filed by the plaintiffs.
7. I have heard counsel for the appellant and have carefully
gone through the records of the case.
8. The solitary contention raised before this Court by the
counsel for the appellant is that the suit is barred by time and that the
appellant has become owner by way of adverse possession. However,
perusal of the written statement filed by defendant No.1-appellant does
not show any plea with respect to adverse possession raised before the
Courts below. Rather, the positive case pleaded by the appellant before
the Trial Court is that the appellant is not in illegal possession over any
part of Gair Mumkin khasra No.263. The plaintiffs proved their title
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over the suit property by placing on record jamabandi. The law
provides for presumption in favour of record of rights which could not
be rebutted by the defendants. Rather by raising plea of adverse
possession before this Court, defendant No.1 impliedly admits the
ownership of the plaintiffs. Suit for possession based upon titled is
governed by the provision of Article 65 of the Limitation Act which
reads as under:-
Description of suit Period of Time from which
limitation period begins to run
65. For possession of immovable Twelve When the possession
property or any interest therein years. of the defendant
based on title. becomes adverse to
Explanation.--For the purposes of the plaintiff.
this article--
(a)where the suit is by a
remainderman, a reversioner
(other than a landlord) or a
devisee, the possession of the
defendant shall be deemed to
become adverse only when the
estate of the remainderman,
reversioner or devisee, as the
case may be, falls into
possession;
(b) where the suit is by a Hindu
or Muslim entitled to the
possession of immovable
property on the death of a
Hindu or Muslim female, the
possession of the defendant
shall be deemed to become
adverse only when the female
dies;
(c)where the suit is by a
purchaser at a sale in execution
of a decree when the judgment-
debtor was out of possession at
the date of the sale, the
purchaser shall be deemed to
be a representative of the
judgment-debtor who was out
of possession
9. In order to hold that the suit filed by the plaintiff is barred
by time, the defendant needs to prove the date on which his possession
became adverse to the plaintiffs. Adverse possession being plea of fact
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needs to be raised before the Court of the first instance and proved in
accordance with law. There being neither any plea nor any evidence
with respect to the possession of the defendants being adverse, the plea
raised by counsel for the appellant cannot be sustained.
10. In view of above, this Court does not find any reason to
interfere in the pure finding of facts recorded by the Courts below after
appreciating the entire evidence on record.
11. Consequently, the present appeal is dismissed.
12. Since the main case has been decided, pending
miscellaneous application, if any, shall also stands disposed off.
(PANKAJ JAIN)
JUDGE
16.10.2024
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : No
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