JOGINDER KAUR Vs. GURBACHAN KAUR

JUDGEMENT

(1.) Plaintiff filed a suit seeking a decree of declaration to the effect that she has become owner in possession of the suit land by way of adverse possession and the mutation entries no.990 and 991 sanctioned on 1.1.2002 and the orders dated 21.8.1980 and 6.8.1984 passed by the Assistant Collector 1 st Grade, Karnal are null and void and not executable under Article 136 of the Limitation Act. The relief of permanent injunction was also sought for so as to restrain the defendants from interfering in the peaceful and continuous possession of the plaintiff in the capacity of owner as also restraining them from alienating, selling or creating any charge on the suit property.

(2.) Briefly noticed, it was pleaded that defendant no.1 Gurbachan Kaur was recorded the owner of the suit land measuring 74 kanals 3 marlas situated in village Singra, Tehsil Nissing, District Karnal as per Jamabandi for the year 1996-1997. Anokh Singh, predecessor-in interest of the plaintiff was recorded to be in possession of the suit land as gair marusi and he was recorded in occupation on payment of 1/3 rd batai. Defendant no.1 had preferred objections under the provisions of the Punjab Security of Land Tenures Act for ejectment of said Anokh Singh on the ground of non-payment of rent. Vide order dated 21.10.1981 the Assistant Collector 1 st Grade, Karnal passed an order of ejectment against Anokh Singh and upon an appeal having been preferred against such order of ejectment, the same was accepted and the case was remanded back to the Assistant Collector 1 st Grade, Karnal vide order dated 9.4.1981 passed by the Collector, Karnal. In terms of passing a fresh order dated 6.8.1984 the Assistant Collector 1 st Grade, Karnal passed an ejectment order against Anokh Singh in respect of the suit property. The ejectment order was never executed by defendant no.1 and even though, the relationship of landlord and tenant ceased to exist upon the passing of the ejectment order but the possession of Anokh Singh continued in the capacity of a trespasser/unauthorized occupant. Accordingly, it was pleaded that the possession of Anokh Singh, the predecessor in interest of the plaintiff became hostile, open and continuous to the knowledge of defendant no.1. Defendant no.1 was stated to have suffered a collusive decree in favour of Bakha Singh and Jasbir Kaur i.e the adopted daughter of defendant no.1 vide Civil Court judgement and decree dated 22.2.1985 and mutation no.633 was sanctioned in their favour on 17.2.1986. It was pleaded that such decree was collusive and the possession of the suit land was never handed over. Jasbir Kaur was stated to have died on 26.4.1987 and mutation no.990 dated 1.1.2002 was sanctioned in favour of defendant no.2. Bakha Singh i.e husband of Jasbir Kaur was also stated to have died on 17.3.2001 and mutation no.991 was also sanctioned in favour of defendant no.2 on 1.1.2002. It was pleaded that in terms of Article 136 of the Limitation Act the order of ejectment passed by the Assistant Collector 1 st Grade, Karnal dated 6.8.1984 was executable within a period of 12 years i.e up to 5.8.1996. Such period had expired long back and on account of the open, continuous and hostile possession of the plaintiff a decree of declaration for having become owner in possession by way of adverse possession be granted.

(3.) The defendants contested the suit in terms of filing a joint written statement as also a counter claim. It was stated that Anokh Singh had been occupying the suit land on payment of 1/3 rd batai. Upon his death his legal heirs inherited the tenancy rights. The filing of ejectment application against Anokh Singh for non-payment of rent was admitted and the factum of passing of the order of ejectment against Anokh Singh on 6.8.1984 was also admitted. The defendants took a stand that after the passing of the ejectment order Anokh Singh and his sons approached defendant no.1 and requested that he be allowed to continue occupying the suit land on payment of 1/3 rd batai. It was stated that for such reason defendant no.1 did not execute the order of ejectment and permitted Anokh Singh to remain in occupation of the suit land. It was further stated that upon the demise of Anokh Singh his sons had been making the payment of 1/3 rd batai and the suit had been instituted to take advantage of the nonexecution of the ejectment order. The possession of the plaintiff over the suit land was stated to be in the capacity of a tenant and as such permissive in nature. As regards the counter claim filed by the defendants, it was pleaded that in terms of filing the instant suit the plaintiff had verified her tenancy rights by denying the same and as such the defendants were entitled to get a decree for possession of the suit land.