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2018 DIGILAW 405 (HP)

Kewal Krishan v. Braham Dass

2018-03-19

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —Looking to the nature of the order I propose to pass, it is not necessary to set out the facts in detail. 2. Suffice it to state that the appellant/plaintiff filed a suit for declaration to the effect that he had become owner in possession of the suit land comprised in Khasra No. 721, Khata No. 77 min, Khatauni No. 138, measuring 5-62 sq.mtrs. situated in Mohal Hamirpur, Tappa Bajuri, Tehsil and District Hamirpur, H.P. and further sought relief of permanent prohibitory injunction restraining the respondents/ defendants from interfering in his possession or from forcibly dispossessing him from the suit property in any manner. 3. The respondents/defendants contested the suit by filing written statement. The suit so filed by the appellant/plaintiff came to be decreed by the learned trial Court, however, the said judgment and decree came to be reversed by the learned first appellate Court, constraining the appellant/plaintiff to file the instant appeal. I have heard learned counsel for the parties and have gone through the material placed on record. 4. As regards the declaration based upon the plea of adverse possession, it is by now well settled that such plea can only be used as the shield and not as a sword, as has been held in Gurdwara Sahib vs. Gram Panchayat Village Sirthala and Anr. , (2014) 1 SCC 669 , wherein, it was observed as under:- "8.There cannot be any quarrel to this extent that 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 are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence." 5. Therefore, the suit filed by the appellant/plaintiff was clearly not maintainable and the learned first appellate Court below committed no illegality, irregularity or impropriety, much less, perversity in dismissing the same. Accordingly, there is no merit in this appeal and the same is dismissed, so also the pending application(s) if any. 6. Therefore, the suit filed by the appellant/plaintiff was clearly not maintainable and the learned first appellate Court below committed no illegality, irregularity or impropriety, much less, perversity in dismissing the same. Accordingly, there is no merit in this appeal and the same is dismissed, so also the pending application(s) if any. 6. However, before parting, it is observed that in the event of any suit being filed against the plaintiff/appellant qua the land in dispute, he shall be entitled to raise all pleas as available to him including the plea of adverse possession. The parties are left to bear their own costs.