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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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