VIJAY BHAWAR Vs. AJAIB SINGH (DECEASED)

JUDGEMENT

(1.) The defendants, who have suffered the decree for injunction in the two Courts below, are the appellants before this Court. The suit had been filed by the respondent-plaintiff for a declaration to the effect that the plaintiff was the owner in possession of the land measuring 27 kanals 6 marlas of land since 1922 and that the plaintiff has prescribed title to the property by adverse possession. The defendants claimed that they were owners of the property and relied on revenue entries recording their names as original owners of the property. It was contended that the plaintiff's predecessors were the tenants from the defendants' predecessors and the claim for adverse possession by the plaintiff was not tenable. The case has been brought for consideration before this Court on two questions of law which have been formulated on 26.08.2013 as follows:-

(2.) Learned counsel for the appellants would argue that the suit for declaration on the basis of adverse possession is not competent and relies on judgments of this Court contending that adverse possession is not possible at the instance of the plaintiff (see (2006-3) PLR 159 page 1, 2006 (3) RCR (Civil) 75 page 4, 2007(2) RCR (Civil) 213 page 6, (2008-4) PLR 624 page 8 and (2009-2) PLR 756 page 12). All these judgments have taken up the position that adverse possession is a plea in defence and it cannot be urged at the instance of the plaintiff.

(3.) I am of the view that the proposition laid down is not correct in law. There are judgments of the Supreme Court that take contrary view and there are also decisions literally from many High Courts which have upheld the claims of adverse title on the basis of adverse possession in favour of the plaintiffs. I could have merely referred to the judgment of the Supreme Court as stating the correct law but since there has been long string of authorities in our Court which take the position advanced by the counsel appearing on behalf of the appellants, it will be only appropriate that the law settled by our Court is reappraised in the light of judgments of the Supreme Court. If the proposition advanced by the counsel appearing on behalf of the appellants is not correct, it would require to be authoritatively so laid down. I will merely state the cases which have upheld the plaintiff's claim to title by adverse possession. In Desh Raj Vs. Bhagat Ram, 2007 9 SCC 641, the plaintiff was asserting for prescription of title by adverse possession. It was a suit instituted against co-owners and therefore, the plaintiff was also seeking for a contention that he had ousted the claims of others. He was relying on revenue entries standing in his name and failure of the defendants to object to the same as constituting the knowledge of the plaintiff's adverse claim. The Court upheld the claim of the plaintiff as having been established. In Krishnamurthy S. Setlur Vs. O.V. Narasimha Setty and Others, 2007 3 SCC 569, the Supreme Court was again expounding the manner of pleading and proof of adverse possession by the plaintiff. The Court held that the plaintiff has to plead the date and period from which he claimed to be in possession. Here again, the Court was not making an issue that the plaintiff cannot claim for adverse possession. In Girija Kumar (II) Vs. State of Himachal Pradesh, 2007 14 SCC 90, the Supreme Court was actually remanding the matter to the High Court for consideration of the plaintiff's claim to adverse possession.