SURESH AND OTHERS Vs. PARVEEN KUMAR AND ANOTHER

JUDGEMENT

(1.) Having failed in two rounds of litigation, the plaintiffs have approached this Court by filing the present Regular Second Appeal. The appellant plaintiffs had filed a suit for declaration claiming themselves to be owner in possession of the suit property on the basis of adverse possession. They further prayed for grant of permanent injunction restraining the defendant-respondents from interfering in their peaceful possession. It was pleaded that the suit land had remained in continuous possession of the appellant-plaintiffs as well as their predecessors-in-interest for the last more than 50 years. Hence, they asserted ownership over the suit property by way of adverse possession. The detail and description of the suit property has been given in the plaint. To claim adverse possession, it was specifically pleaded that possession of the plaintiffs over the suit land is open, hostile, adverse, peaceful continuous and without interruption to the knowledge of the whole world including the defendants. The adverse possession of the father of the plaintiffs was since 20.7.1987 and after his death ownership had accrued to the plaintiffs after 12 years. Upon notice of the suit, defendants caused appearance, filed the written statement and raised preliminary objections regarding maintainability of the suit; estoppel on the part of the plaintiffs to file the suit; locus standi and the suit being barred by limitation. On merits, it was stated that father of the plaintiffs was tenant over the suit property and after his death, plaintiffs have become tenant over the same. It was pleaded that a tenant is always a tenant and can not seek adverse possession. Father of the plaintiffs had also approached the revenue Court claiming himself to be a tenant. The application filed to this effect was withdrawn by him. It was further stated that the application filed by father of the plaintiffs under Section 77 of the Punjab Tenancy Act was allowed by the Assistant Collector, Sonepat, against which the defendants filed an appeal before the Collector. In the Court of Collector, father of the plaintiffs made a statement to withdraw the original application which was permitted vide order dated 25.1.2007.

(2.) The trial Court held that Brahm Singh was a tenant over the suit property and observed as under:-

(3.) The trial Court further held that the suit filed by the plaintiffs for declaration that they have become owner in possession because of adverse possession is not maintainable, as the plea of adverse possession can only be raised in defence in a suit for recovery of possession. In view of the findings returned above, the suit was dismissed.