Hemant Gupta, J.
1. The defendant is in second appeal, aggrieved against the judgment and decree passed by the first Appellate Court, arising out of a suit for possession filed by the respondents.
2. The plaintiff has filed a suit for recovery of possession on the ground that he is in continuous possession of suit property since 1945, which was being used by the plaintiff as part of its mill and factory as it adjoins the factory of the plaintiff and is part of Khasra No. 115 Khata No. 5811 situated in village Gobindgarh. The plaintiff has claimed that the possession of the plaintiff over the site was peaceful, legal, continuous for the last more than 30 years and the same was also open and within the knowledge of the defendant. It is also pleaded that the defendant has no concern with this site nor is the owner of the site nor it has any right or interest thereon. The plaintiff has claimed that the defendant has issued a notice to the plaintiff on 4,2.1974 admitting the possession of the plaintiff. The same was replied by Nahar Singh, partner of the firm, which reply was incorrect one. The plaintiff alleges that the notice dated 4.2.1974 was illegal, void, unauthorized, unconstitutional, mala fide and discriminatory. It is alleged that the plaintiff earlier filed a suit for injunction along with an application for grant of ad-interim injunction. The trial Court vacated ad-interim injunction on 31.7.1974 and the appeal against the said order was dismissed on 9.8.1974. It is the case of the plaintiff that the plaintiff was dispossessed in an illegal and forcible manner on 10.8.1974. The plaintiff claimed that since the possession of the plaintiff was that as an owner for more than 30 years, which possession was hostile, open and within the knowledge of the defendant, therefore, the defendant was bound to deliver back the possession of the site in suit to the plaintiff.
3. In written statement, it was alleged that the plaintiff was in possession of the site, which was a part of public street. The same was in possession of the plaintiff for some time. However, the possession of the plaintiff since 1945 was denied. The question whether the property falls in a particular Khasra Number was stated to be a matter of verification from record. It was further alleged that the plaintiff is in possession of the land for the last two years and the land vests in the Municipality. One of the issues framed was whether the plaintiff has become owner by adverse possession at the time of dispossession of the plaintiff by the defendant. On the said issue, the learned trial Court recorded a finding that the plaintiff was in possession for a short period, and not for the last 30 years and that the plaintiff was not entitled to re-delivery of possession. In appeal against the said judgment, the learned District Judge affirmed the finding that the plaintiff has not become owner by adverse possession but found that no document under which property in question was transferred by the Municipality was brought on record nor the record of the Municipality shows that the property is in ownership of the Municipality and, therefore, the plaintiff is entitled to possession on the basis of his possessory title. It is the said finding, which is challenged in the present appeal.
4. Learned Counsel for the respondent has, during the course of arguments, raised a preliminary objection that the appeal is not maintainable for want of Resolution by the Municipality, Learned Counsel for the appellant has produced Resolution No. 115 dated 25.2.1980 passed by the Municipality approving the office order dated 7.2.1980 under Section 35 of the Punjab Municipal Act, 1911 authorising the Executive Officer to file appeal against and also approving the expenses to be incurred in respect of appeal before this Court against the judgment passed by the learned District Judge, Patiala.
5. In view of the said Resolution, I do not find any merit in the argument raised by the learned Counsel for the respondent that the appeal is not maintainable. The action of filing of appeal can be ratified in view of the judgment of the Hon'ble Supreme Court reported as Punjab University v. V.N. Tripathi and Anr. : AIR2001SC3672 . In view of the said decision, I do not find any merit in the preliminary objection raised by the learned Counsel for the respondent.
6. The following substantial questions of law arise for consideration of this Court:-
1. Whether the property cannot be said to be vesting with the Municipality even in view of notification dated 17.5.1950?
2. Whether the plaintiff having raised plea of adverse possession can assert that Municipality is not the owner of the disputed property?
7. A perusal of the pleadings raised by the parties, shows that the plaintiff has stated that the defendant is not the owner of the disputed property, but still raised the plea of adverse possession alleging open and hostile possession to the knowledge of the defendant. The name of the true owner has not been pointed out in the plaint. There is no issue framed whether the Municipality is, in fact, owner of the suit property or not. The issue framed is only in respect of adverse possession of the plaintiff and whether the plaintiff is entitled to possession of the property in suit. In my view, the plea of adverse possession raised by the plaintiff debars the plaintiff to dispute the title of the defendant over the suit property. As a matter of fact, when the plaintiff is denying the ownership of the defendant, it is in the context of assertion of the plaintiff that with possession of 30 years, the plaintiff become owner of the suit property. Therefore, the learned first Appellate Court was not justified in law in holding that the plaintiff is entitled to possession on the basis of possessory title. It may be noticed that the plaintiff is claiming possession on the plea of adverse possession. Even if the defendant is not able to prove its title in absolute terms but the defendant has definitely better title than the plaintiff, who is a rank encroacher.
8. Learned Counsel for the respondent has vehemently argued that the Municipality has failed to prove its title over the suit land and, therefore, on the basis of previous possession, the plaintiff is entitled to possession and only true owner can resist the possession of the plaintiff. There is no dispute about the proposition canvassed by the learned Counsel for the respondent, but in the facts of the present case, the defendant has proved its title as well DW1 Rameshwar Lal Patwari, who has deposed that the disputed land is part of Town and Planning Scheme, which adjoins Dashmesh Mill. DW2 is Surjit Singh, Licence Inspector of the Municipality, who has brought the property register. As per the said register, the disputed property is shown at Serial No. 5. On the said site, cattle fair used to be held. The property in dispute was entered at Page No. 43 of the Register and this property was entered as a Government land near Railway Road Cattle Fair Ground. However, he could not produce any communication of the Government transferring the property to the Committee.
9. There is no evidence to controvert the evidence led by the defendant. Mere fact that the Municipality has not brought on record the document of transfer of land by the State Government to the Municipality will not show that the Municipality is not owner of the property. The property having been reflected as vesting in the Municipality in terms of Section 56 of the Act, the entry would carry a presumption of correctness. In any case, such presumption cannot be rebutted at the instance of a person, who raise a plea of adverse possession without stating a word about the true owner. The finding recorded by the learned District Judge is that the property belonged to State of Punjab and no document has been produced to prove the transfer of the same to Municipal Committee. The said finding is, in fact, based upon the statement of DW2 Surjit Singh. The appellant's application for additional evidence has been allowed vide separate order. The documents produced is the notification issued by the Government of Patiala and East Patiala States Union dated 17.5.1950 by which Govt has transferred all lands and buildings belonging to the Government to the Municipality, except Hospitals and Dispensaries, Educational Institutions, such as Schools, Post Offices, and Sub-Post Offices, Court building and Court compounds, Telephone Offices, Patiala State Banks Buildings and Rest Houses and State Houses. In view of the Notification dated 17.5.1950, it is apparent that the property which belonged to the State of Punjab stood transferred to the Municipality vide the aforesaid Notification and, therefore, the same was included in the property Register being maintained by the Municipality. Therefore, in view of the said notification, there is no manner of doubt that the property stood transferred to the Municipality. Consequently, the finding recorded by the first Appellate Court that the Municipal Committee is not the owner, is not sustainable in law.
10. Therefore, the judgment and decree passed by the learned first Appellate court, is not sustainable and the same is set aside. Consequently the suit is dismissed.
11. The plaintiff has taken possession on 25,3.1980 in terms of the decree of the first Appellate Court. Since the judgment and decree passed by the first Appellate Court has been set aside, the learned Executing Court shall ensure that possession of the property is restituted to the Municipality within three months. Since the plaintiff has failed to prove its right to seek possession, but has enjoyed the possession on the basis of the decree passed by the first Appellate Court since March 25, 1980, the plaintiff would be liable to pay mesne profits for such possession, to the Municipality. Such mesne profits shall be determined by the learned Executing Court within a period of six months from today.