Jot Ram (Deceased and Represented by Legal Representatives) and Others Vs. Jot Ram (Deceased and Represented by Legal Representatives) and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1053045
CourtPunjab and Haryana High Court
Decided OnAug-08-2013
AppellantJot Ram (Deceased and Represented by Legal Representatives) and Others
RespondentJot Ram (Deceased and Represented by Legal Representatives) and Others
Excerpt:
r.s.a no.1599 of 1988 (o&m) -1- in the high court of punjab and haryana at chandigarh ***** r.s.a no.1599 of 1988 (o&m) date of decision:08. 08.2013 jot ram (deceased and represented by legal representatives) and others ..... appellants versus sahab ram and others ..... respondents coram: hon’ble mr. justice mahavir s. chauhan present: mr. ashwani kumar chopra, senior advocate, with mr. vaibhav narang, advocate, for the appellants. none for respondent nos.1 to 6. mr. rahul sharma, additional advocate general, haryana, for respondent no.7 & 8. ***** mahavir s. chauhan, j.civil suit no.299-c of 1981 was brought by jot ram and others, the appellants herein, for declaration to the effect that they have become owners of the land in suit as described in the head note of the plaint, by way of adverse possession or in the alternative, they have acquired rights of ownership in the suit property under the provisions of punjab occupancy tenants (vesting of proprietary rights) act, 1952 (hereinafter referred to as 'the 1952 act') and that the entries in the revenue record showing respondent nos.1 to 6 to be owners of the suit land are wrong and liable to be corrected; and a decree of permanent injunction to restrain the respondents from dispossessing them from the suit land and/or from allotting it to, or utilizing it in any other manner in favour of, any other person. virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -2- it was the case pleaded on behalf of the plaintiffs/appellants that their father manna ram, since deceased, was in cultivating possession of the suit land and posthumous manna ram, the appellants have been in its cultivating possession. their possession over the suit land has been for more than 50 years, has been continuous, uninterrupted to the knowledge of the true owner, peaceful, hostile and without payment of lagaan or rent and, thus, they have become owners of the suit land by adverse possession. according to the appellants, entries showing respondent nos.1 to 6 as owners of the suit land were wrong and are liable to be corrected. in the alternative, it was pleaded that the appellants being in continuous possession of the suit land since before coming into force of the 1952 act, had acquired ownership rights in respect of the suit land in terms of provisions of the 1952 act and that ancestors of respondent nos.1 to 6 had agreed not to eject ancestor of the appellants and confer occupancy rights upon him, however, respondent nos.1 to 6, when requested to admit claim of the appellants and to get the revenue record corrected, had refused to accede to their demand. it was in this situation that the appellants had to bring the civil suit under adjudication. a written statement was filed on behalf of respondent nos.1 to 6 denying all the allegations constituting suit and adding that part of the suit land had been utilized on 13.03.1981 and part on 25.02.1982 by way of allotment to permissible tenants and father of the appellants, namely, manna ram had already been allotted 40 kanals of 'c' category land out of the suit land on 13.03.1981, while rest of the suit land stood allotted to ratti ram, shanker, sheo karan and mahi ram on 25.02.1982. they also pleaded preliminary objections, inter alia, to the effect that the virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -3- suit was bad for mis-joinder of parties and non-compliance of provisions of section 80 of the code of civil procedure; it was without cause of action; hands of the appellants were sullied; civil court had no jurisdiction to try the suit in view of the provisions of section 26 of the haryana ceiling on land holdings act, 1972, (hereinafter referred to as 'the 1972 act'). in the written statement, a prayer for dismissal of the suit was made. from the pleadings of the parties, learned trial court formulated following issues:-“1. whether the plaintiffs are in possession of the suit land for the last more than twelve years?. opp.2. whether the plaintiffs have become owners by virtue of adverse possession?. opp.3. whether the plaintiffs have acquired occupancy rights over the suit land, as alleged and as such have become owner of the suit land?. opd.4. whether the suit is bad for mis-joinder of parties?. opd.5. whether the suit is bad for want of notice under section 80 c.p.c.?. opd.6. whether the plaintiffs have no cause of action?. opd.7. whether the civil court has got no jurisdiction to try the suit?. opd.8. relief.”. after both the sides had concluded their evidence in support of their respective contentions, learned trial court afforded them an audience and perused the record. in view of the evidence available on record and submissions made at the bar, learned trial court returned findings on issue nos.1, 4, 5 and 7 in favour of the appellants, on issue nos.2, 3 and 6 against them virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -4- and vide judgment and decree dated 20.12.1985 dismissed suit of the appellants with no order as to costs. appellants failed before the additional district judge, sirsa (for short as 'the first appellate court') also, as their appeal challenging judgment and decree dated 20.12.1985 was dismissed vide judgment and decree dated 26.05.1988. to assail correctness of the judgment and decree dated 20.12.1985 of the learned trial court, as affirmed by the judgment and decree dated 26.05.1988 of the learned first appellate court, the unsuccessful plaintiffs have approached this court by way of the instant regular second appeal. while respondent nos.1 to 6 have chosen not to appear despite service, respondent nos.7 and 8, i.e., the state of haryana through collector, sirsa and the sub-divisional officer (civil), sirsa, respectively, are the contesting the appeal. learned counsel for the appearing parties have been heard and record of the case has been gone into. it has been argued on behalf of the appellants that the learned trial court has decided issue no.1 in favour of the appellants holding that they have been in possession of the suit land for more than 12 years but has rejected their claim for declaration that they have become owners of the suit land by adverse possession. according to the learned counsel, in view of the clear finding recorded by the learned trial court, the appellants ought to have been declared to have become owners of the suit land by way of adverse possession and, as such, finding recorded by the learned trial court on issue no.2 cannot be allowed to sustain. virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -5- it has further been contended by learned counsel for the appellants that even if plea of the appellants based on adverse possession is found to be unacceptable, they satisfy the ingredients of occupancy tenants in terms of section 2(f) of the 1952 act and, as such, are liable to be declared as occupancy tenants and, therefore, entitled to the benefits available to such tenants in terms of section 3 of the 1952 act. to support this contention, learned counsel for the appellants refers to report dated 06.06.2009 (annexure a/2) of the civil judge (senior division), sirsa, submitted in compliance of order dated 22.12.2008 of this court and points out that it has been specifically stated in the report that as per jamabandi, exhibit a1, for the year 1925-26, the land in suit was in possession of nanda son of khumba as gair marusi to the extent of 32 bighas 17 biswas whereas one dilsukh rai son of kanshi ram has been recorded as owner thereof and same is the position as regards jamabandi, exhibit a2, for the year 1929-30, jamabandi, exhibit a3, for the year 1937-38 and so on. however, the contention of counsel for the appellants, is contested by the learned additional advocate general, haryana, representing respondent nos.7 and 8, by submitting that jurisdiction of civil court is barred and the report referred to by the learned counsel for the appellants is inconsequential because no such report could be sought at the stage of regular second appeal. it is further contended by the state counsel that no substantial question of law has been filed on behalf of the appellants and for this reason also, the appeal is liable to be dismissed. nothing more has been urged on either side. issue nos. 4, 5 and 7 were decided by the courts below virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -6- against the respondents and they have decided not to challenge the findings on these issues. the findings on these issues, therefore, deserve to be affirmed. as regards the jurisdiction of the civil court, it only needs to be stated that issue no.7 was formulated by the learned trial court with regard to jurisdiction of the civil court but no arguments were apprised on behalf of the respondents on this issue and, as such it was decided against the respondents. findings on this issue were not challenged by the respondents either by filing of cross-objections or in terms of order 41 rule 22 of the code of civil procedure. thus, findings on the said issue have become final and, therefore, the contention put up on behalf of respondent nos.7 and 8 (for shake of brevity referred to as 'the official respondents'), is liable to be rejected. as regards the calling of report, it may be pointed out that order dated 22.12.2008 was passed in the presence of the state counsel and no objection was raised to calling of the report. then, no objections have been filed to the report dated 06.06.2009 submitted by the civil judge (senior division), sirsa. that being the situation, the official respondents cannot be heard to say that the report has been wrongly called for or is inconsequential. before setting out to dispose of the appeal on merits, it is necessary to dispose of another contention raised on behalf of the official respondents that no substantial questions of law have been placed on record by the appellants. requirement of section 100 of the code of civil procedure is that a regular second appeal can be entertained only if it involves a substantial question of law. though, substantial questions of law have not been filed on behalf of the appellants but from the virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -7- submissions put forth for and against acceptance of the plea of the appellants, the following two substantial questions of law are prima facie found to be involved in the appeal:- 1. whether plea of adverse possession is available to a plaintiff to seek declaration that he has become owner of the suit land by way of adverse possession?.2. whether a person in occupation of the land can claim himself to have become an occupancy tenant, if he proves his possession over the land in dispute with effect from the date on which the punjab occupancy of tenants (vesting of proprietary rights) act, 1952, came into force?. plea of the appellants that they have become owners of the land in dispute by way of adverse possession must fail because plea of adverse possession is a shield available to a defendant against owner of the property seeking to retrieve possession after expiration of period of limitation prescribed for seeking possession and it cannot be used by a plaintiff to assert his right by aflux of time because the principle is based upon the provisions of section 27 of the indian limitation act, 1963, according to which, on determination of the period of 12 years prescribed for staking claim to possession of immovable property, right to the property in dispute, stands extinguished. such a plea can be taken in defence to a suit for possession and not by way of a positive assertion by a plaintiff. therefore, finding of the learned trial court on issue no.2 as affirmed by the first appellate court, cannot be faulted. in respect of issue no.3, learned trial court found that entries in the revenue record were in favour of respondent nos.1 to 6 and in support of the plea of the appellants, there was only their assertion that virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -8- entries in the revenue record were wrong and that the evidence on record showed possession of manna ram and after his death of the appellants over the suit land on payment of cash rent only from the year 1960 onwards and not before that. the finding was affirmed by the first appellate court also. however, as stated hereinbefore, during the pendency of the appeal, this court passed order, dated 22.12.2008 to the following effect:- “in this appeal, the appellants have challenged concurrent findings of the courts below holding them to be not proved to be occupancy tenants on the land which had been declared surplus in the hands of sahab ram. counsel for the appellants has argued that the assertion made in paragraph 3 of the plaint that the appellants had been in possession of the land in dispute for the last 50 years went largely un-rebutted primarily because defendants no.1 to 6 (who were the landlords) did not contest the suit and were ex parte, while defendants no.7 and 8 (the state of haryana) did not deny the fact specifically. consequently, even though issue no.3 was framed with regard to the question whether the appellants had proved themselves to be occupancy tenants and, thus, eligible for allotment of the land, they did not lead evidence with regard to the consolidation record, even though they had submitted jamabandis for the last more than 50 years. it is his assertion that had paragraph 3 been specifically controverted, the appellants would have placed in evidence the consolidation record also to link the said numbers. in my opinion, to arrive at an effective adjudication on the issue, it would be appropriate to call for a report from the trial court on the issue as to whether infact the land which was on lease with the predecessor-in-interest of the appellants is the same land which is not in their possession. it can not be lost sight of that while the state is claiming that virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -9- the land was allotted to land-less persons yet if the appellants are able to prove their assertion, their claim for allotment would be stronger than that of any subsequent allottee. i, therefore, direct that the trial court would give a report on the issue as to whether the appellants have been in possession of the same land for the last more than 50 years. for this purpose, two opportunities each will be granted to the appellants and the respondent-state of haryana. the parties, through their counsel, are directed to appear before the trial court on 25.1.2009. since it is an old appeal, it is directed that the trial court will send its report within a period of three months from the said date. list the case as and when the report is received from the trial court.”. in compliance of the aforesaid order, a report, dated 06.06.2009, has been submitted by the civil judge (senior division), sirsa. the learned civil judge (senior division), sirsa, has examined revenue record from the year 1925-26 onwards and has come to a conclusion that throughout the afore-stated period, predecessor-in- interest of the appellants, namely, nanda and after his death manna ram has been in occupation of the land, in dispute, and khasra numbers of the land, in dispute, have been changed during the consolidation proceedings. the conclusion recorded by the learned trial court is to the following effect:- “ 7. this oral as well as documentary evidence placed on record of the case is not at all rebutted on behalf of the respondents state of haryana. the only witness examined on behalf of respondents is rw1 jagdish chander kanungo, surplus area, ellenabad, has admitted in his cross- examination that from khasra girdawari from the year 1961 to 2000 and from several jamabandis ex.a1 to a18 the possession of the land is shown in the name of nanda son of virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -10- khumba, then sons of nanda namely chuni, manna and bhera and then in the name of sons of manna. it is also admitted by him that as per record the appellants and their father and grand father are coming in possession of the suit land since the year 1925.”. no objection has been filed to this report. the situation makes necessary a reference to section 2 (f) of the 1952 act, which reads as under:- “2(f). “occupancy tenant”. means a tenant who, immediately before the commencement of this act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of their land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors-in-interest of an occupancy tenant.”. a perusal of the definition of occupancy tenant as culled out above, reveals that to become an occupancy tenant, it has to be shown that the person should be a tenant, who after commencement of the 1952 act obtains a right of occupancy in respect of the land held by him whether by agreement or through a court of competent jurisdiction or otherwise and also includes the predecessors-in-interest and successors- in-interest of an occupancy tenant. the act came into force on 15th day of june, 1954. as held by the civil judge (senior division), sirsa, in her report dated 06.06.2009, the appellants through their predecessor-in- interest have been in occupation of the land in dispute since the year 1925-26. their status in the revenue record has been recorded as gair marusi. that being so, the appellants satisfy the ingredients of occupancy tenants within the meaning of section 2(f) of the 1952 act. in the consequence, findings recorded by the courts below on issue no.3 are virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh r.s.a no.1599 of 1988 (o&m) -11- reversed and this issue is decided in favour of the appellants. in the consequence, while answering the questions posed here-in-before in the afore-stated terms, the appeal is accepted and suit of the appellants is decreed for declaration to the effect that they have become occupancy tenants in respect of land, in dispute, and are thus, entitled to the benefits as available under section 3 of the 1952 act. however, in the facts and circumstances of the case, parties are left to bear their own costs. cm no.3283-c of 2007: by way this civil miscellaneous sheo karan son of ganesha ram of village neemla seeks to be impleaded as a respondent in the regular second appeal on the plea that the land in suit was allotted in his favour. however, in view of acceptance of the regular second appeal declaring the appellants as occupancy tenants, the application is rendered infructuous and is disposed of accordingly. (mahavir s. chauhan) judge 08 08.2013 adhikari virender singh adhikari 2013.08.14 14:26 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

R.S.A No.1599 of 1988 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** R.S.A No.1599 of 1988 (O&M) Date of Decision:

08. 08.2013 Jot Ram (deceased and represented by legal representatives) and others ..... Appellants Versus Sahab Ram and others ..... Respondents CORAM: HON’BLE MR. JUSTICE MAHAVIR S. CHAUHAN Present: Mr. Ashwani Kumar Chopra, Senior Advocate, with Mr. Vaibhav Narang, Advocate, for the appellants. None for respondent Nos.1 to 6. Mr. Rahul Sharma, Additional Advocate General, Haryana, for respondent No.7 & 8. ***** MAHAVIR S. CHAUHAN, J.Civil Suit No.299-C of 1981 was brought by Jot Ram and others, the appellants herein, for declaration to the effect that they have become owners of the land in suit as described in the head note of the plaint, by way of adverse possession or in the alternative, they have acquired rights of ownership in the suit property under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as 'the 1952 Act') and that the entries in the revenue record showing respondent Nos.1 to 6 to be owners of the suit land are wrong and liable to be corrected; and a decree of permanent injunction to restrain the respondents from dispossessing them from the suit land and/or from allotting it to, or utilizing it in any other manner in favour of, any other person. Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -2- It was the case pleaded on behalf of the plaintiffs/appellants that their father Manna Ram, since deceased, was in cultivating possession of the suit land and posthumous Manna Ram, the appellants have been in its cultivating possession. Their possession over the suit land has been for more than 50 years, has been continuous, uninterrupted to the knowledge of the true owner, peaceful, hostile and without payment of lagaan or rent and, thus, they have become owners of the suit land by adverse possession. According to the appellants, entries showing respondent Nos.1 to 6 as owners of the suit land were wrong and are liable to be corrected. In the alternative, it was pleaded that the appellants being in continuous possession of the suit land since before coming into force of the 1952 Act, had acquired ownership rights in respect of the suit land in terms of provisions of the 1952 Act and that ancestors of respondent Nos.1 to 6 had agreed not to eject ancestor of the appellants and confer occupancy rights upon him, however, respondent Nos.1 to 6, when requested to admit claim of the appellants and to get the revenue record corrected, had refused to accede to their demand. It was in this situation that the appellants had to bring the civil suit under adjudication. A written statement was filed on behalf of respondent Nos.1 to 6 denying all the allegations constituting suit and adding that part of the suit land had been utilized on 13.03.1981 and part on 25.02.1982 by way of allotment to permissible tenants and father of the appellants, namely, Manna Ram had already been allotted 40 Kanals of 'C' category land out of the suit land on 13.03.1981, while rest of the suit land stood allotted to Ratti Ram, Shanker, Sheo Karan and Mahi Ram on 25.02.1982. They also pleaded preliminary objections, inter alia, to the effect that the Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -3- suit was bad for mis-joinder of parties and non-compliance of provisions of Section 80 of the Code of Civil Procedure; it was without cause of action; hands of the appellants were sullied; Civil Court had no jurisdiction to try the suit in view of the provisions of Section 26 of the Haryana Ceiling on Land Holdings Act, 1972, (hereinafter referred to as 'the 1972 Act'). In the written statement, a prayer for dismissal of the suit was made. From the pleadings of the parties, learned trial Court formulated following issues:-

“1. Whether the plaintiffs are in possession of the suit land for the last more than twelve years?. OPP.

2. Whether the plaintiffs have become owners by virtue of adverse possession?. OPP.

3. Whether the plaintiffs have acquired occupancy rights over the suit land, as alleged and as such have become owner of the suit land?. OPD.

4. Whether the suit is bad for mis-joinder of parties?. OPD.

5. Whether the suit is bad for want of notice under Section 80 C.P.C.?. OPD.

6. Whether the plaintiffs have no cause of action?. OPD.

7. Whether the civil court has got no jurisdiction to try the suit?. OPD.

8. Relief.”

. After both the sides had concluded their evidence in support of their respective contentions, learned trial Court afforded them an audience and perused the record. In view of the evidence available on record and submissions made at the bar, learned trial Court returned findings on Issue Nos.1, 4, 5 and 7 in favour of the appellants, on Issue Nos.2, 3 and 6 against them Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -4- and vide judgment and decree dated 20.12.1985 dismissed suit of the appellants with no order as to costs. Appellants failed before the Additional District Judge, Sirsa (for short as 'the first appellate court') also, as their appeal challenging judgment and decree dated 20.12.1985 was dismissed vide judgment and decree dated 26.05.1988. To assail correctness of the judgment and decree dated 20.12.1985 of the learned trial Court, as affirmed by the judgment and decree dated 26.05.1988 of the learned first appellate court, the unsuccessful plaintiffs have approached this Court by way of the instant Regular Second Appeal. While respondent Nos.1 to 6 have chosen not to appear despite service, respondent Nos.7 and 8, i.e., the State of Haryana through Collector, Sirsa and the Sub-Divisional Officer (Civil), Sirsa, respectively, are the contesting the appeal. Learned counsel for the appearing parties have been heard and record of the case has been gone into. It has been argued on behalf of the appellants that the learned trial Court has decided Issue No.1 in favour of the appellants holding that they have been in possession of the suit land for more than 12 years but has rejected their claim for declaration that they have become owners of the suit land by adverse possession. According to the learned counsel, in view of the clear finding recorded by the learned trial Court, the appellants ought to have been declared to have become owners of the suit land by way of adverse possession and, as such, finding recorded by the learned trial Court on Issue No.2 cannot be allowed to sustain. Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -5- It has further been contended by learned counsel for the appellants that even if plea of the appellants based on adverse possession is found to be unacceptable, they satisfy the ingredients of occupancy tenants in terms of Section 2(f) of the 1952 Act and, as such, are liable to be declared as occupancy tenants and, therefore, entitled to the benefits available to such tenants in terms of Section 3 of the 1952 Act. To support this contention, learned counsel for the appellants refers to report dated 06.06.2009 (Annexure A/2) of the Civil Judge (Senior Division), Sirsa, submitted in compliance of order dated 22.12.2008 of this Court and points out that it has been specifically stated in the report that as per jamabandi, Exhibit A1, for the year 1925-26, the land in suit was in possession of Nanda son of Khumba as Gair Marusi to the extent of 32 Bighas 17 Biswas whereas one Dilsukh Rai son of Kanshi Ram has been recorded as owner thereof and same is the position as regards jamabandi, Exhibit A2, for the year 1929-30, jamabandi, Exhibit A3, for the year 1937-38 and so on. However, the contention of counsel for the appellants, is contested by the learned Additional Advocate General, Haryana, representing respondent Nos.7 and 8, by submitting that jurisdiction of Civil Court is barred and the report referred to by the learned counsel for the appellants is inconsequential because no such report could be sought at the stage of regular second appeal. It is further contended by the State Counsel that no substantial question of law has been filed on behalf of the appellants and for this reason also, the appeal is liable to be dismissed. Nothing more has been urged on either side. Issue Nos. 4, 5 and 7 were decided by the courts below Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -6- against the respondents and they have decided not to challenge the findings on these issues. The findings on these issues, therefore, deserve to be affirmed. As regards the jurisdiction of the Civil Court, it only needs to be stated that Issue No.7 was formulated by the learned trial Court with regard to jurisdiction of the Civil Court but no arguments were apprised on behalf of the respondents on this issue and, as such it was decided against the respondents. Findings on this issue were not challenged by the respondents either by filing of cross-objections or in terms of Order 41 Rule 22 of the Code of Civil Procedure. Thus, findings on the said issue have become final and, therefore, the contention put up on behalf of respondent Nos.7 and 8 (for shake of brevity referred to as 'the official respondents'), is liable to be rejected. As regards the calling of report, it may be pointed out that order dated 22.12.2008 was passed in the presence of the State Counsel and no objection was raised to calling of the report. Then, no objections have been filed to the report dated 06.06.2009 submitted by the Civil Judge (Senior Division), Sirsa. That being the situation, the official respondents cannot be heard to say that the report has been wrongly called for or is inconsequential. Before setting out to dispose of the appeal on merits, it is necessary to dispose of another contention raised on behalf of the official respondents that no substantial questions of law have been placed on record by the appellants. Requirement of Section 100 of the Code of Civil Procedure is that a regular second appeal can be entertained only if it involves a substantial question of law. Though, substantial questions of law have not been filed on behalf of the appellants but from the Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -7- submissions put forth for and against acceptance of the plea of the appellants, the following two substantial questions of law are prima facie found to be involved in the appeal:- 1. Whether plea of adverse possession is available to a plaintiff to seek declaration that he has become owner of the suit land by way of adverse possession?.

2. Whether a person in occupation of the land can claim himself to have become an occupancy tenant, if he proves his possession over the land in dispute with effect from the date on which the Punjab Occupancy of Tenants (Vesting of Proprietary Rights) Act, 1952, came into force?. Plea of the appellants that they have become owners of the land in dispute by way of adverse possession must fail because plea of adverse possession is a shield available to a defendant against owner of the property seeking to retrieve possession after expiration of period of limitation prescribed for seeking possession and it cannot be used by a plaintiff to assert his right by aflux of time because the principle is based upon the provisions of Section 27 of the Indian Limitation Act, 1963, according to which, on determination of the period of 12 years prescribed for staking claim to possession of immovable property, right to the property in dispute, stands extinguished. Such a plea can be taken in defence to a suit for possession and not by way of a positive assertion by a plaintiff. Therefore, finding of the learned trial Court on Issue No.2 as affirmed by the first appellate Court, cannot be faulted. In respect of Issue No.3, learned trial Court found that entries in the revenue record were in favour of respondent Nos.1 to 6 and in support of the plea of the appellants, there was only their assertion that Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -8- entries in the revenue record were wrong and that the evidence on record showed possession of Manna Ram and after his death of the appellants over the suit land on payment of cash rent only from the year 1960 onwards and not before that. The finding was affirmed by the first appellate Court also. However, as stated hereinbefore, during the pendency of the appeal, this Court passed order, dated 22.12.2008 to the following effect:- “In this appeal, the appellants have challenged concurrent findings of the Courts below holding them to be not proved to be occupancy tenants on the land which had been declared surplus in the hands of Sahab Ram. Counsel for the appellants has argued that the assertion made in paragraph 3 of the plaint that the appellants had been in possession of the land in dispute for the last 50 years went largely un-rebutted primarily because defendants No.1 to 6 (who were the landlords) did not contest the suit and were ex parte, while defendants No.7 and 8 (the State of Haryana) did not deny the fact specifically. Consequently, even though issue No.3 was framed with regard to the question whether the appellants had proved themselves to be occupancy tenants and, thus, eligible for allotment of the land, they did not lead evidence with regard to the consolidation record, even though they had submitted jamabandis for the last more than 50 years. It is his assertion that had paragraph 3 been specifically controverted, the appellants would have placed in evidence the consolidation record also to link the said numbers. In my opinion, to arrive at an effective adjudication on the issue, it would be appropriate to call for a report from the trial Court on the issue as to whether infact the land which was on lease with the predecessor-in-interest of the appellants is the same land which is not in their possession. It can not be lost sight of that while the State is claiming that Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -9- the land was allotted to land-less persons yet if the appellants are able to prove their assertion, their claim for allotment would be stronger than that of any subsequent allottee. I, therefore, direct that the trial Court would give a report on the issue as to whether the appellants have been in possession of the same land for the last more than 50 years. For this purpose, two opportunities each will be granted to the appellants and the respondent-State of Haryana. The parties, through their counsel, are directed to appear before the trial Court on 25.1.2009. Since it is an old appeal, it is directed that the trial Court will send its report within a period of three months from the said date. List the case as and when the report is received from the trial Court.”

. In compliance of the aforesaid order, a report, dated 06.06.2009, has been submitted by the Civil Judge (Senior Division), Sirsa. The learned Civil Judge (Senior Division), Sirsa, has examined revenue record from the year 1925-26 onwards and has come to a conclusion that throughout the afore-stated period, predecessor-in- interest of the appellants, namely, Nanda and after his death Manna Ram has been in occupation of the land, in dispute, and Khasra numbers of the land, in dispute, have been changed during the consolidation proceedings. The conclusion recorded by the learned trial Court is to the following effect:- “ 7. This oral as well as documentary evidence placed on record of the case is not at all rebutted on behalf of the respondents State of Haryana. The only witness examined on behalf of respondents is RW1 Jagdish Chander Kanungo, Surplus Area, Ellenabad, has admitted in his cross- examination that from Khasra girdawari from the year 1961 to 2000 and from several jamabandis Ex.A1 to A18 the possession of the land is shown in the name of Nanda son of Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -10- Khumba, then sons of Nanda namely Chuni, Manna and Bhera and then in the name of sons of Manna. It is also admitted by him that as per record the appellants and their father and grand father are coming in possession of the suit land since the year 1925.”

. No objection has been filed to this report. The situation makes necessary a reference to Section 2 (f) of the 1952 Act, which reads as under:- “2(f). “occupancy tenant”. means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of their land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors-in-interest of an occupancy tenant.”

. A perusal of the definition of occupancy tenant as culled out above, reveals that to become an occupancy tenant, it has to be shown that the person should be a tenant, who after commencement of the 1952 Act obtains a right of occupancy in respect of the land held by him whether by agreement or through a court of competent jurisdiction or otherwise and also includes the predecessors-in-interest and successors- in-interest of an occupancy tenant. The Act came into force on 15th day of June, 1954. As held by the Civil Judge (Senior Division), Sirsa, in her report dated 06.06.2009, the appellants through their predecessor-in- interest have been in occupation of the land in dispute since the year 1925-26. Their status in the revenue record has been recorded as Gair Marusi. That being so, the appellants satisfy the ingredients of occupancy tenants within the meaning of Section 2(f) of the 1952 Act. In the consequence, findings recorded by the Courts below on Issue No.3 are Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.1599 of 1988 (O&M) -11- reversed and this issue is decided in favour of the appellants. In the consequence, while answering the questions posed here-in-before in the afore-stated terms, the appeal is accepted and suit of the appellants is decreed for declaration to the effect that they have become occupancy tenants in respect of land, in dispute, and are thus, entitled to the benefits as available under Section 3 of the 1952 Act. However, in the facts and circumstances of the case, parties are left to bear their own costs. CM No.3283-C of 2007: By way this Civil Miscellaneous Sheo Karan son of Ganesha Ram of village Neemla seeks to be impleaded as a respondent in the regular second appeal on the plea that the land in suit was allotted in his favour. However, in view of acceptance of the regular second appeal declaring the appellants as occupancy tenants, the application is rendered infructuous and is disposed of accordingly. (MAHAVIR S. CHAUHAN) JUDGE 08 08.2013 adhikari Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh