Gurtej Singh vs 97 on 17 November, 2008

Punjab-Haryana High Court
Gurtej Singh vs 97 on 17 November, 2008
R.S.A No. 998 of 2007                               ::1::

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH



                                      R.S.A No. 998 of 2007

                                      Date of decision : November 17, 2008


Gurtej Singh,

                                             ...... Appellant.

                               through Mr.I.S.Brar, Advocate

                         v.
Zora Singh & others,
                                             ...... Respondents


CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

                                ***

1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

***

AJAY TEWARI, J

This appeal has been filed against the judgment of the learned

lower appellate Court allowing the appeal of the defendant/respondent No.1

and thereby dismissing the suit of the plaintiff for declaration and

permanent injunction. The learned trial Court decreed the suit in favour of

the plaintiff and held him to be the owner of the suit property by way of

adverse possession. In appeal, the learned lower appellate Court held

that the possession of a mortgagee can never be adverse to that of a true

owner and consequently dismissed the suit.

Learned lower appellate Court further relied upon Kanak Ram

and others vs Chanan Singh and others, 2007(2) RCR (Civil) 213(P&H),

and Bhim Singh and others vs. Zile Singh and others, 2006(3) RCR (Civil)

97, wherein this Court held that plea of adverse possession is available only
R.S.A No. 998 of 2007 ::2::

to a defendant and that a suit on the basis of adverse possession would not

lie.

Learned counsel for the appellant drew my attention to two

judgments of the Hon’ble Supreme Court in Bondar Singh and others vs

Nihal Singh, 2003(2) RCR (Civil) 222 and Girja Kumar and others v. State

of H.P & another, 2007 AIR SCW 7353, and a judgment of the Delhi High

Court in Manmohan Service Station v. Mohd. Haroon Japanwala and others,

AIR 1994 Delhi 337 to argue that the proposition of law, advanced by this

Court, was not correct.

In my opinion, this is not so. In the case of Bondar Singh and

others (supra), no doubt the Hon’ble Supreme Court allowed the suit filed by

a person claiming to be in adverse possession, yet it is to be seen from this

judgment that no plea was raised at all on behalf of the owners that a suit for

claiming title on the basis of adverse possession did not lie. This would be

clear from the fact that in para 3 of the judgment in Bondar Singh and

others (supra), the Hon’ble Supreme Court held as follows :-

“3. The main question for consideration in the present

suit is as to whether the plaintiffs were in hostile

continuous possession of the suit lands by virtue of

which they had perfected their title to the land by adverse

possession. …..”

Even in the case of Girja Kumar and others’ case (supra), no

plea was taken regarding the maintainability of the suit. The judgment of

the Delhi High Court in Manmohan Service Station’s case (supra) does deal

with this question to hold that such a suit is maintainable. I, however, find

that the judgment of this Court in Bhim Singh and others vs Zile Singh and
R.S.A No.
998 of 2007 ::3::

others, 2006(3) RCR (Civil) 97 considers the judgment of the Delhi High

Court and, relying upon an earlier judgment of the Delhi High Court [which

was not referred to in Manmohan Service Station’s case (supra)],

distinguished the judgment in Manmohan Service Station’s case (supra) and

held that such a suit is not maintainable. I am in respectful agreement with

the view taken in the case of Bhim Singh and others’ case (supra) and

consequently hold that the suit is not maintainable. This appeal is, thus,

dismissed with no order as to costs.

                                        ( AJAY TEWARI            )
November 17 , 2008.                          JUDGE
`kk'
 

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