DARBARA SINGH Vs. NIHAL KAUR

JUDGEMENT

(1.) The present revision petition has been filed against the order dated 11.10.2004 passed by the learned Civil Judge (Senior Division), Faridkot dismissing the application moved under Order 14 Rule 5 CPC for framing of additional issues.

(2.) The plaintiff-respondents had filed a suit for possession on the basis of the title against the petitioner-defendant by claiming themselves owners of the land measuring 68 K - 1 M, fully described in the head note of the plaint. This contention of the petitioners was denied by the respondents by claiming that they had become owner by way of adverse possession. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues on 12.9.2002:

(3.) The application was thereafter moved on the plea that an issue regarding ownership of property should be framed and burden of which should be placed on the plaintiff-respondent. The learned Court below came to the conclusion that the parties to the suit were not strangers as the plaintiff is the mother of defendant No. 1 and other defendants were the grandsons of the plaintiff. The learned Court also noticed that once a stand was taken by the defendants that they had perfected their title by way of adverse possession, this admission persists that the plaintiffs are owner of the land. The learned Court also noticed that the property had come to the ownership of the plaintiff-respondents on the basis of Civil Court decree dated 28.8.1986. The claim of the petitioners was that the said decree was not binding on them. The learned Court below came to the conclusion that the framing of this issue would result de novo trial, and accordingly dismissed the application moved for framing of additional issues. The learned Counsel for the petitioner vehemently argued by relying upon the judgment of this Court Subhadra Devi v. Balbir Nath alias Sadhu and Ors. 2004 (3) R.C.R. (Civil) 263 to contend that when the defendant denied the claim of ownership and title of the plaintiff and takes as an alternative plea of adverse possession not as their principal relief, defendants cannot be debarred from claiming adverse possession on the strength of their own case without admitting title of the plaintiff.