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2006 DIGILAW 3272 (PNJ)

Darbara Singh v. Nihal Kaur

2006-08-10

VINOD K.SHARMA

body2006
Judgment , J. 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: 1. Whether the defendants have become owners in possession of the suit land by way of adverse possession, as alleged? OPD 2. Whether the plaintiff is entitled for possession of the suit land, as alleged? OPP 3. Relief. 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 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/s. 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. 4. However,In my opinion, the judgment does apply to the facts of the case. In the present case the petitioners have not taken any alternative plea of adverse possession but claimed to have perfected their title by way of adverse possession against the plaintiff. The learned Counsel for the petitioner placed reliance on the judgment passed by the Honble Supreme Court P. Perasami (dead) by L. Rs. V/s. P. Periathambi and Ors. to contend that plea of adverse possession implies that some one else is the owner of the property. From this he wishes to contend that the learned trial Court was not right to hold that merely by claiming plea of adverse possession the ownership is admitted. 5. The next contention of the petitioners was that when the suit is based on title then the plaintiff has to succeed or fail on the title he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has not title to the property. The judgment also does not support the case of the petitioner as in the present case no finding has been decreed in favour of the respondents. The learned trial Court is to decide on the evidence as to whether the suit for injunction is to succeed or fail but this does not give petitioners right to claim an additional issue. 6. The learned trial Court is to decide on the evidence as to whether the suit for injunction is to succeed or fail but this does not give petitioners right to claim an additional issue. 6. Lastly, by placing reliance on the judgment of this Court Ram Kishan V/s. Bhagwan Sarup Nagar (2006-1) 142 P. L. R.754, it was contended that even if the defendant claims adverse possession against every one after specifically denying the ownership of the plaintiff, it can never constitute admission of the title of the plaintiff on the part of the defendant and in case the plaintiff fails to prove his title, he cannot claim the same merely on the plea of adverse possession. 7. I feel that this also does not support the case of the petitioner as no finding with regard to the title of the plaintiff has been recorded by the Court below, only the application for framing of issues, has been rejected keeping in view the pleadings of the parties. 8. There is no illegality or impropriety in the order passed by the learned trial Court which may call for any interference by this Court under Article 227 of the Constitution of India. .