Gurudwara Sahib Vs Gram Panchayat Village Sirthala

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C.A.No. /2013 @ SLP(c)No.23728 of 2012

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

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C.A.No. /2013 @ SLP(c)No.23728 of 2012

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)

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C.A.No. /2013 @ SLP(c)No.23728 of 2012

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

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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

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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.

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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

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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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