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Saturday, September 21, 2013

adverse possession can be used as a shield/defence but not as a weapon = Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.- As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of issue No.1 to the effect that the appellant is in possession of adverse possession since 13.4.1952 operates as res- judicata. Subject to this clarification, the appeal is dismissed.

         published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40774       
                                          NON-REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO. 8244/2013
              (arising out of S.L.P.(Civil) No. 23728 of 2012)

Gurudwara Sahib                                    …Appellant



                 Vs.

Gram Panchayat Village Sirthala & Anr.
…Respondents



                             J U D G M E N T



A.K.SIKRI,J.

1.    Leave granted.

2.    The appellant herein is the original plaintiff  which  had  filed  the
suit for decree of declaration to the effect that it  had  become  owner  of
the suit property by adverse possession.  Declaration  was  also  sought  to
the effect that the Revenue record  showing  ownership  of  respondent  No.1
herein i.e.  Gram  Panchayat  (defendant  in  the  suit)  is  liable  to  be
corrected in the name of the appellant and the auction already held  by  the
Gram Panchayat of the land in  dispute  is  null  and  void.   Consequential
relief   of   permanent   injunction   restraining   Gram   Panchayat   from
dispossessing the appellant from the disputed  land  was  also  prayed  for.
This suit  was  partly  decreed  by  the  trial  court  granting  relief  of
injunction.  First Appeal against that part of the judgment  whereby  relief
of declaration was denied was dismissed by the learned  Additional  District
Judge and the Second  Appeal  preferred  by  the  appellant  has  also  been
dismissed by the High Court of Punjab and Haryana vide judgment  dated  22nd
September 2011.   Undeterred  by  successive  failures,  the  appellant  has
knocked at the door of this Court with the plea that its suit be decreed  in
entirety.

3.    The appellant claims ownership by adverse  possession  on  the  ground
that it is in possession of  the  land  in  dispute  for  sufficiently  long
period which fact has been established and, therefore, his  suit  could  not
be dismissed.  We, however, find that this relief of  declaration  has  been
denied on the ground that suit  for  such  a  prayer  was  not  maintainable
inasmuch as declaration to this effect on the basis  of  adverse  possession
cannot be sought and the plea of adverse possession is available only  as  a
defence to the defendant.

4.    On the basis of pleadings of the parties, the trial court  had  framed
the following issues:

      1. Whether the plaintiff is in adverse possession  of  the  suit  land
since 13.4.1952 as alleged? (OPP)

      2. If  issue  No.1  is  proved,  whether  adverse  possession  of  the
plaintiff has matured into ownership? (OPP)

      3. Whether plaintiff is entitled to declaration as prayed for? (OPP)

       4.  Whether  the  plaintiff  is  entitled  to  injunction  as  prayed
for?(OPP)

      5. Whether the suit is not maintainable in the present form?(OPP)

      6. Relief.

5.    In so far as first issue is concerned, it was  decided  in  favour  of
the plaintiff returning the findings  that  the  appellant  was  in  adverse
possession of the suit property  since  13.4.1952  as  this  fact  had  been
proved by plethora  of  documentary  evidence  produced  by  the  appellant.
However,  while  deciding  the  second  issue,  the  court  opined  that  no
declaration can be sought on the basis of  adverse  possession  inasmuch  as
adverse possession can be used as a shield and not as a sword.  The  learned
Civil Judge relied upon the judgment of the Punjab and  Haryana  High  Court
in Gurudwara  Sahib Sannuali vs. State of Punjab  PLR  page  756  and  thus,
decided the issue against the plaintiff.  Issue No.3 was also, in  the  same
vein, decided against the appellant.    In so far as issue  no.4  pertaining
to relief of injunction is concerned, the learned Civil Judge held  that  as
long  uninterrupted  possession  of  the  appellant  was  established,   the
appellant was entitled to the decree of injunction and the respondents  were
restraining from dispossessing the appellant  forcibly  and  illegally  from
the suit land and also restrained from damaging the  building  of  Gurudwara
Sahib.  Issue No.5 was decided against the respondent on the ground that  no
evidence was led to show how the suit was not maintainable  in  the  present
form.   While granting relief, the learned Civil Judge  partly  decreed  the
suit holding as under:

                 “It is held that plaintiff is in adverse  possession  over
           the suit property since 13.4.1952 and defendants are  restrained
           from dispossessing the plaintiff forcibly and illegally from the
           suit property and further restrained  from damaging the building
           of Gurudwara Sahib except according to due process of  law.   As
           discussed above, the remaining relief as sought by the plaintiff
           is dismissed.  Decree sheet be prepared. File  be  consigned  to
           the record room.”



6.    It is pertinent to note that the  respondents  accepted  the  judgment
and decree pertaining to prohibiting injunction.   It is the  appellant  who
filed the First Appeal. Obviously, the confines of the said appeals  related
to the issue pertaining to declaration of ownership of  adverse  possession.
The First Appellate Court while dismissing the appeal observed as under:

                  “The respondents have  not  challenged  the  judgment  and
          decree dated 6.1.2009 passed by the ld. Civil  Judge  (Jr.  Div.),
          Khanna, which means that they have accepted that the appellant was
          in adverse possession of the suit land since 13.4.1952. The  issue
          whether adverse possession of the appellant/plaintiff had  matured
          into his ownership is purely a question of law and it is a settled
          that no declaration of title can be sought on the basis of adverse
          possession.  Ld. Trial court has  rightly  relied  upon  the  case
          titled Gurudwara Sahib Sannauli       vs. State of Punjab PLR  756
          wherein  it is held that no  declaration  can  be  sought  by  the
          plaintiff with regard to adverse possession because such a plea is
          available only to the defendant. Since the appellant was  not  the
          lawful owner of the property  in  dispute,  therefore,  respondent
          No.1 was within its rights to auction  a  part  of  the  same,  on
          19.12.2003 in favour  of  respondent  No.2.  Respondent  No.1  has
          proved that land measuring 13B-12B was auctioned on 19.12.2003  in
          the presence of BDPO Doraha and Ranjit Singh was declared  as  the
          last  bidder  and  the  auction  was  struck  in  his  name  of  a
          consideration of Rs.1,11,000/- and the land measuring 6B on  which
          the building of Gurudwara Sahib  had  been  constructed,  was  not
          auctioned.

                  In view  of  my  above  discussion,  I  find  no  material
          illegality or  irregularity  in  the  judgment  and  decree  dated
          6.11.2009 passed by ld. Trial court and therefore  the  appeal  is
          dismissed and the findings of the ld. trial  court  are  affirmed.
          Decree  sheet  be  prepared.  File  of  lower  court  be  returned
          forthwith. File be consigned to the record room.”




7.    In the Second Appeal, the relief of ownership  by  adverse  possession
is again denied holding that such a suit is not maintainable.  There  cannot
be any quarrel to this extent the judgments of the courts below are  correct
and without any blemish.
Even if the plaintiff is found to  be  in  adverse
possession, it cannot seek a declaration to the  effect  that  such  adverse possession has matured into ownership. 
Only  if  proceedings  filed  against
the appellant and appellant is arrayed as defendant that  it  can  use  this adverse possession as a shield/defence.

8.    However, we also find from the reading of the  judgment  of  the  High
Court that the High Court has refused  the  injunction  observing  that  the
appellant was not entitled to the same as it is the Gram Panchayat which  is
the owner of the property in dispute and as the appellant is  in  possession
without any right, it has no right  to  seek  injunction  against  the  Gram
Panchayat.  This finding is totally perverse and, in fact, unnecessary.   In
the first instance, there was no occasion  or  reason  for  the  appellant’s
counsel to seek this prayer in the Second Appeal.   As  pointed  out  above,
the relief of injunction had already been granted by  the  Civil  Court  and
this portion of the decree had  not  been  challenged  by  the  respondents.
Decree to this extent in favour of  the  appellant  had  attained  finality.
The First Appellate Court also specifically recorded this fact and  observed
that by not challenging the judgment and decree passed by the learned  Civil
Judge,  the  respondents  accepted  that  the  appellant  was   in   adverse
possession  of  the  land  since  13.4.1952.    We,   thus,   clarify   that
observations of the High  Court  that  the  appellant  is  not  entitled  to
injunction, were unnecessary and beyond the scope of the appeal .

9.    As  the  appellant  is  in  possession  of  the  suit  property  since 13.4.1952 and has been granted the decree of injunction, it obviously  means that the possession of the appellant  cannot  be  disturbed  except  by  due process of law.  
We make it clear that though  the  suit  of  the  appellant
seeking relief of declaration has been dismissed, in case  respondents  file suit for possession and/or ejectment of the appellant, it would be  open  to the appellant to plead in defence that the appellant had  become  the  owner of property by adverse possession.  
Needless to mention at this  stage,  the
appellant shall also be at liberty to plead that findings of issue  No.1  to the effect that the appellant is in possession of adverse  possession  since 13.4.1952 operates as res- judicata.  
Subject  to  this  clarification,  the appeal is dismissed.



                                             ………………………….J.
                                             (K.S.RADHAKRISHNAN)



                                             ………………………….J.
                                             (A.K.SIKRI)
New Delhi,
September 16,  2013

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