JUDGMENT Mr. Paramjeet Singh, J.: - This regular second appeal by defendant No.1 is directed against the judgment and decree dated 16.05.1986 passed by learned Sub Judge Ist Class, Panipat, whereby the suit for declaration and permanent injunction filed by respondent No.1/plaintiff has been decreed qua permanent injunction and dismissed qua declaration of ownership on the basis of adverse possession, as well as well against the judgment and decree dated 02.05.1987 passed by learned Additional District Judge, Karnal, whereby the appeal filed by appellant/defendant No.1 has been dismissed. 2. Respondent No.1/plaintiff has filed cross-objections challenging the judgment and decree dated 02.05.1987 whereby the learned Additional District Judge has dismissed cross-objections filed by respondent No.1/plaintiff, as well as judgment and decree dated 16.05.1986 passed by learned Sub Judge Ist Class whereby suit of plaintiff has been dismissed qua declaration declaring him owner of the suit property on the basis of adverse possession. 3. For convenience sake, reference to parties is being made as per their status in the civil suit. 4. Before narrating the facts, it would be appropriate to reproduce the pedigree table showing the relationship of the parties, which reads as under: - Balram l --------------------------------------------------------------------------------------- l l Chuni Raj Mal l l ------------------- -------------------------------------------------------------------- l l l l l l Munshi Makri Sham Singh Harphool Karam Surat l (daughter) (deft. No.2) Singh Singh Singh l l (deft. No.3) (deft.4) (Pltf.) Bhujia Bharpai (widow) (daughter) (deft. No.5) 5. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that Chuni son of Balram was the owner in possession of the suit land fully detailed in headnote of the plaint. Chuni had a son, namely, Munshi and a daughter, namely, Makri. Munshi died during the lifetime of his father Chuni and left behind his widow Bhujia @ Bhujan and Makri daughter of Chuni had a daughter, namely, Bharpai. Brother of Chuni, namely, Raj Mal was having four sons i.e. Sham Singh, Harphool Singh, Karam Singh, defendants No.2 to 4, respectively and Surat Singh plaintiff. It is alleged that Chuni died about 55-56 years prior to the filing of the suit and Bhujia died about 50-60 years prior to the institution of the suit. The suit was filed in the year 1981. It is alleged that Chuni died about 55-56 years prior to the filing of the suit and Bhujia died about 50-60 years prior to the institution of the suit. The suit was filed in the year 1981. Chuni died leaving behind his son’s widow Bhujia in 1926-27. Though Bhujia being widow of Munshi was not entitled to inherit the property left by her father-in-law yet the mutation of the suit property was sanctioned in favour of Bhujia and she was recorded as owner of the suit property in the revenue record. Bhujia was entitled to residence and maintenance only as she was the widow of pre-deceased son of Chuni, namely, Munshi. It is averred that even Bhujia was not heard of by her relations for a long period as such she suffered a civil death. It is alleged that after the death of her husband Bhujia never visited the village where the property is situated. It was claimed that plaintiff came in possession of the suit property on the death of Chuni and continued to remain in possession of the suit property as owner and to the exclusion of defendants No.2 to 5 as well as Bhujia without paying any rent or profit to anybody. As such he became owner of the suit property by way of adverse possession. It was also averred that minor son of defendant No.6 got a fictitious ‘will’ dated 30.01.1975 executed in his favour. Validity of the ‘will’ was challenged on the ground that Bhujia having not been heard of for more than seven years was presumed to be dead under Section 108 of the Indian Evidence Act and, therefore, some impostor had acted for her, thus, the alleged ‘will’ came into existence. Bhujia had already sold the suit property by means of sale deed dated 13.01.1973 in favour of defendants No.6 to 9 for Rs.20,000/-. As such she had no interest whatsoever in the property so as to execute ‘will’. It was also pointed out that at the time of death of Chuni, his daughter Makri was also alive. Makri had filed a suit against general public and defendant No.1 claiming herself to be owner of the suit property being legal heir of Bhujia, after the death of Bhujia and defendant No.1 set up the alleged ‘will’. It was also pointed out that at the time of death of Chuni, his daughter Makri was also alive. Makri had filed a suit against general public and defendant No.1 claiming herself to be owner of the suit property being legal heir of Bhujia, after the death of Bhujia and defendant No.1 set up the alleged ‘will’. During the pendency of said suit, Makri died and her daughter defendant No.5 was impleaded as her legal representative. Ultimately, suit was dismissed vide judgment and decree dated 30.01.1976 and appeal against that was also dismissed on 14.09.1979 by learned Additional District Judge, Karnal, observing that it was open to the plaintiff-appellant to challenge the ‘will’ in a separate suit and the orders passed in these proceedings in this regard would not operate as res judicata. It was further averred that on the basis of mutation No.2221, sanctioned in favour of defendant No.1 and the failure of the suit filed by defendant No.5 and her mother, defendants have started interfering in the peaceful possession of the plaintiff over the suit property. Hence, the suit was filed. 6. Upon notice only defendant No.1 contested the suit by way of filing written statement and remaining defendants were proceeded against ex parte. Defendant No.1 took preliminary objections that suit is not maintainable in the present form, suit is not within time, plaintiff got filed suit No.237 of 1973 through Smt. Makri against the general public pleading that Smt. Bhujia having not been heard of for more than seven years and presumed to have died, Smt. Makri (sister of Bhujia’s husband) was entitled to inherit her property. The plaintiff intended to get the said suit decreed stealthily but to his surprise Smt. Bhujia put in appearance and she was impleaded in the suit. During the pendency of the abovesaid suit, Smt. Bhujia died and prior thereto had executed a ‘will’ in favour of defendant No.1. Consequently, defendant No.1 was impleaded in the abovesaid suit and the suit filed by Makri was dismissed vide judgment and decree dated 30.09.1976 holding the validity of ‘will’. Plaintiff of the present suit was the attorney of Smt. Makri, therefore, plaintiff is estopped from bringing the suit by his own act and conduct and has waived of every right relating to the suit property. The suit is barred by the principal of res judicata and estoppel. Plaintiff of the present suit was the attorney of Smt. Makri, therefore, plaintiff is estopped from bringing the suit by his own act and conduct and has waived of every right relating to the suit property. The suit is barred by the principal of res judicata and estoppel. On the basis of ‘will’ and judgment and decree of civil Court, mutation of the suit land was entered in favour of defendant No.1 and again Smt. Makri contested the mutation. After the death of Makri, plaintiff brought her daughter Bharpai defendant No.5 to contest the mutation and again plaintiff in the present suit appeared as witness against Smt. Bharpai and, therefore, the plaintiff is estopped from taking such plea. On merit, defendant No.1 admitted the death of Chuni and Munshi and devolution of the property on Bhujia. It was claimed that Bhujia became absolute owner of the suit property. It was pleaded that Bhujia remained in possession of the suit property though she used to live partly at Garhi Sadhan and partly at Babail, where the property is situated. The averment of abandonment of interest in the suit property by Bhujia was denied. It was asserted that Bhujia was absolute owner of the suit property and she remained in possession of the suit property and she executed a valid ‘will’ relating to the suit property in favour of defendant No.1 and consequently he became owner of the suit property. The claimed adverse possession of the plaintiff over the suit property was denied. A prayer for dismissal of the suit was made. 7. Plaintiff filed replication to the written statement denying the averments in the written statement and reiterating the averments in the plaint. 8. Court of first instance, on the basis of pleadings of the parties, framed following issues: - “1. Whether the plaintiff has become the owner of the suit property by way of adverse possession? 2. Whether Smt. Bhujan has abandoned her rights in the estate as alleged? 3. Whether Smt. Bhujan became the owner of the suit property upto the extent of her right as the widow of pre-deceased son of Chuni Lal? 4. Whether Smt. Bhujan executed a valid will in favour of defendant No.1. 5. Whether Smt. Bhujan sold away the suit land in favour of defendant Nos.6 to 9? 6. Whether the suit is time barred? 7. 4. Whether Smt. Bhujan executed a valid will in favour of defendant No.1. 5. Whether Smt. Bhujan sold away the suit land in favour of defendant Nos.6 to 9? 6. Whether the suit is time barred? 7. Whether the suit is barred by the principles of res judicata? 8. Whether the plaintiff has waived his right as alleged? 9. Whether the plaintiff is estopped from filing the present suit? 10. Whether the possession of defendant No.1 is that of cosharer? If so, to what extent? 11. Whether the suit is bad for non-joinder of the necessary parties? 12. Whether the suit is not maintainable in the present form? 13. Relief.” 9. The Court of first instance, after appreciating evidence on record, recorded a finding that plaintiff could not prove his ownership by way of adverse possession. However, it was held that plaintiff succeeded in proving his exclusive possession over the suit property and the suit qua permanent injunction was decreed and defendants were restrained from dispossessing the plaintiff by force. Suit of the plaintiff regarding declaration of his ownership by way of adverse possession was dismissed. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has been dismissed and the judgment and decree of the Court of first instance has been affirmed by lower appellate Court. Hence, this second appeal. 10. Plaintiff/respondent No.1 also filed cross-objections before the lower appellate Court against dismissal of his suit qua declaration of ownership by way of adverse possession, which have been dismissed by lower appellate Court. Plaintiff/respondent No.1 has filed crossobjections in the second appeal as well challenging the impugned judgments and decrees of the Courts below challenging findings against him. 11. I have heard learned counsel for the parties and perused the record. 12. At the time of admission, no substantial question of law was framed, however, during the pendency of appeal following substantial questions of law have been placed on record: - “1. Whether Surat Singh is entitled to file the suit in question in view of order dated 05.09.1980 passed in RSA No.471 of 1989 and can claim to be plaintiff? 2. Whether suit filed by plaintiff Surat Singh seeking declaration of ownership by way of adverse possession is maintainable in view of judgment 2006 (3) RCR 75? 3. Whether Surat Singh is entitled to file the suit in question in view of order dated 05.09.1980 passed in RSA No.471 of 1989 and can claim to be plaintiff? 2. Whether suit filed by plaintiff Surat Singh seeking declaration of ownership by way of adverse possession is maintainable in view of judgment 2006 (3) RCR 75? 3. Whether the Will dated 30.01.1975 which has already been decided to be a valid Will vide Ex.D-7 can again be decided by the courts below? 4. Whether the judgments of the courts below are sustainable in law as the material as well as relevant evidence has not been considered and findings have been arrived by the Courts below are not perverse? 5. Whether Bhujan who died on 04.07.1975 has not become absolute owner in view of section 14(1) of Hindu Succession Act?” 13. Plaintiff had filed a suit for declaration and permanent injunction claiming ownership by way of adverse possession. Both the Courts below have recorded a finding that plaintiff is in possession for sufficiently long period which has been established on record. The Court of first instance has recorded a finding that plaintiff is in possession of the suit property and defendants have been restrained from dispossessing the plaintiff forcibly and illegally except in due course of law. It is settled principle of law that plea of adverse possession is a plea of defence and on that basis declaration cannot be sought. Since the suit of plaintiff has been decreed only qua restraining the defendants from dispossessing him except in due course of law, I do not find any illegality or irregularity in the judgments and decrees of the Courts below. The Courts below after appreciating evidence on record have recorded concurrent findings of fact. No question of law muchless substantial question of law, as claimed, arises in this appeal. 14. In view of above, the appeal is dismissed. 15. In view of above, there is also no merit in the cross-objetions. The Courts below after appreciating evidence on record have recorded concurrent findings of fact. No question of law muchless substantial question of law, as claimed, arises in this appeal. 14. In view of above, the appeal is dismissed. 15. In view of above, there is also no merit in the cross-objetions. However, it is clarified that in view of the judgment of Hon’ble Supreme Court in Gurudwara Sahib v. Gram Panchayat village Sirthala and another, [2013(6) Law Herald (SC) 4641 : 2014(1) Law Herald (P&H) 193 (SC) : 2013(3) Land L.R. 99 (SC)] : 2013(4) R.C.R. (Civil) 703, though the suit of respondent No.1/plaintiff seeking relief of declaration has been dismissed, in case appellant/defendant No.1 files suit for possession and/or ejectment of respondent No.1/plaintiff, it would be open to respondent No.1/plaintiff to plead in defence that he had become owner of property by way of adverse possession. With these observations, cross-objections are disposed of. No costs. ---------0.B.S.0------------ —————————