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DEEPAK GUPTA, J. –

These three Regular Second Appeals have arisen out of two judgments passed by the Courts below in two separate Civil Suits, on identical facts and involving same issues.

2.1 Plaintiffs in both the suits are common i.e. Mukhtiar Singh etc. (appellants of RSA N:1734-1990 & 1735-1990; respondents in RSA N: 1245-1990), who sought possession of the suit property on the basis of their title, by pleading unauthorized possession of the defendants. Civil Suit No.756 of 1985 was filed against Kartar Singh & Harnam Singh (appellants in RSA N:1245-1990) sons of Santa, claiming possession of 56 kanal 14 marla of land situated in Village Adhoya, Tehsil Pehowa, District Kurukshetra; whereas Civil Suit No.806 of 1985 was filed against defendant Shingara Singh (respondent in RSA N: 1734-1990) claiming possession of land measuring 8 kanal situated in the same village Adhoya of Tehsil Pehowa, District Kurukshetra.

2.2 In both the suits, defendants resisted the claim, by contending to be in possession of the suit land and that they had become owner thereof by way of adverse possession. They, thus, denied the title of the plaintiffs and claimed their own title by way of adverse possession.

2.3 The issues in both the suits before the trial Court were as to whether the plaintiffs were entitled to possession of the suit land being owners; or as to whether defendants have become owner of the suit land by way of adverse possession.

2.4 In both the cases, the trial Court, after taking evidence produced by the parties, held that plaintiffs were the owner of the property in dispute; and that defendants had failed to prove that they had perfected their title by way adverse possession. As such, both the suits were decreed by the trial Court on 22.02.1988 by way of separate but identical judgments. That led to filing of two separate appeals by the defendants of the cases.

2.5 Before the First Appellate Court, in the Civil Appeal N:98 of 1988/1989 arising out of Civil Suit No.756 of 1985, defendants conceded that they did not have any concern with 8 kanal of land as comprised in Rectangle No.8 Khasra No.25 and that they confined their claim of title by way of possession only in respect of remaining 48 kanal 14 marla of land.

2.6 The First Appellate Court upheld the findings of the trial Court to the extent that plaintiffs were owner of the suit land. The First Appellate Court further upheld the finding of the trial Court to the effect that defendants had failed to perfect their title by way of adverse possession and thus, they had not become owner thereof. However, the First Appellate Court found the defendants to be tenants on the suit land since prior to asserting their unauthorized possession. It was further held that by mere denial of the title of the landlord, they had not forfeited their right to be tenants on the suit land. The First Appellate Court further held that since the defendants were tenants in possession of the suit land, therefore, Civil Court did not have the jurisdiction to grant decree of possession to the plaintiffs; and that remedy for the plaintiffs lied with the revenue Court. With these findings, by setting aside of judgments of trial court, appeals were accepted on 20.4.1990 and suits were dismissed. Suit N: 756 of 1985 was dismissed except to the extent of 8 Kanals.

2.7 Since the plaintiffs have been thus non-suited on the ground of bar of jurisdiction of the Civil Court, so the plaintiffs have filed two separate Regular Second Appeals i.e. RSA Nos.1734 & 1735 of 1990. On the other hand, defendant Kartar Singh of Civil Suit No.756 of 1985 filed independent RSA No.1245 of 1990, claiming that he was also in possession of the land measuring 8 kanal comprised in Rect. No.8 Khasra No.25 and that he had not authorized his counsel before the First Appellate Court to repudiate the claim in respect of the said land. He claimed that the First Appellate Court should have dismissed the suit of the plaintiffs in toto.

3. I have heard ld. counsel for both the parties, considered their submissions and appraised the entire record.

4. It has been found by the First Appellate Court on the basis of evidence on file that in fact, earlier Gram Panchayat was the owner of a large chunk of land as per jamabandi for the year 1968-69. Later on, the ownership was changed in favour of ‘Mushtarka Malkan Hasab Rasad Zare Khewat’ to the extent of 8156 share; whereas, Gram Panchayat remained as owner of 304089 shares out of the total 312245 shares, as per Jamabandi for the year 1978-79. That change took place on account of the decree dated 02.07.1965 passed by Sub Judge, Kaithal and regarding which mutation No.201 dated 16.06.1981 was sanctioned in favour of Jumla Malkan Hasab Rasad Zare Khewat. Thus, some of the land earlier vesting in the Gram Panchayat had fallen to the share of the proprietors of the village, who got it partitioned through the Court of Assistant Collector IInd Grade, regarding which mutation No.319 dated 01.08.1983 was sanctioned in favour of the individual proprietors. It is on the basis of those mutations that plaintiffs had become owners of the suit land pertaining to both the suits.

5. The title of the plaintiffs has not been denied by the defendants at any stage. Rather, the mere fact that defendants claim their title to be adverse, in itself shows that they admit the title of the third party. It has been held by Hon’ble Supreme Court in 'Karnataka Board of Wakf Vs. Government of India' 2004 (2) RCR (Civil) 702 that claim of title and also the adverse possession at the same time are mutually inconsistent. It is inherent in the plea of adverse possession that someone else was the owner. Adverse possession is an hostile possession by clearly asserting hostile title in denial of the title of true owner and must be peaceful, open and continuous in publicity and must start with a wrongful disposition of the true owner and must be actual, visible, exclusive, hostile and continued over the statutory period. The person coming in permissive possession cannot simply claim adverse possession until the former is shown to be renounced.

6. In the present case, it is observed by the First Appellate Court that earlier the defendants were shown to be tenants on the suit land under Gram Panchayat. However, after the plaintiffs became owner of the suit land, they (defendants) started claiming their possession to be adverse. The Revenue Record was also referred by the First Appellate Court to find that the illegal possession of the defendants has been recorded for the first time since 1983-84.

7. The finding of the First Appellate Court to the effect that defendants had not perfected their title by way of adverse possession is a concurrent finding of fact and based on proper appreciation of evidence. There is no reason whatsoever for this Court to disturb the said finding.

8. The only issue before this Court is as to whether plaintiffs were entitled to the possession of the suit land being title holder and as to whether the defendants had forfeited their right to tenancy by denying the title of the plaintiffs.

9. The issue is squarely covered by Ganesh Dutt and others Vs. Molu Ram and others, 1987 PLJ 435, wherein the sole point involved in the appeal was whether on the facts of the case, defendant had forfeited his right of tenancy or not on denouncing the title of the plaintiff and claiming ownership of himself by adverse possession and on this account, whether the Civil Court had jurisdiction to pass a decree for possession or the plaintiff be driven to the revenue Court under the Punjab Tenancy Act, 1887 to file application for ejectment.

10. After referring to the catena of authorities including a Division Bench judgment of this Court in Sada Ram and others Vs. Gajjan 1970 PLR 223 and an authority of Hon’ble Supreme Court in Raja Mohammad Amir Ahmed Khan Vs. Municipal Board of Sitapur and another, AIR 1963 Supreme Court, 1923 and also by referring to the various authorities taking contrary view, it has been concluded by this Court that by denouncing the title of plaintiff in the written statement itself, the defendants had forfeited their right of tenancy. It was held that it is not necessary that defendants must have denounced the title of the plaintiffs prior to the filing of the suit. Even if they had denied the title of the plaintiffs in the written statement by taking a specific plea to the effect, that will be sufficient to hold that they had denounced the title of the plaintiff stand therefore, Civil Court will have the jurisdiction to entertain the suit for possession.

11. Apart from above, the matter in present cases, can be examined from another angle as well. At no point of time, defendants ever claimed to be tenants on the suit land. Their consistent stand taken in the written statement is that they are in possession of the suit land and had perfected their title by way of adverse possession. Their plea of adverse possession has not been found as correct by any of the Courts below, as has been discussed earlier. The First Appellate Court has, on its own, made out a new case for the defendants by holding them to be tenants on the suit land. The First Appellate Court could not travel beyond the pleadings of the parties. Even the evidence, led beyond the pleadings of the parties, could not be appreciated in that direction.

12. The similar plea was considered by this Court in Munshi and others Vs. Ram Singh [RSA No.1060 of 1990 decided on 20.02.2024], wherein it has been held that the First Appellate Court could not have made out a new case for the defendants, which had not been pleaded. In that case also, similar were the facts, inasmuch as plaintiff had claimed possession on the basis of title, whereas defendants had claimed that their title had become perfect by way of adverse possession. In that case also, the trial Court had decreed the suit, whereas the First Appellate Court had dismissed the suit by non-suiting the plaintiff on the ground of bar of jurisdiction. It was held by this Court that a new case could not be set up by the First Appellate Court and that Civil Court had the jurisdiction to pass the decree.

13. Consequent to factual and legal position as has been discussed above, the two appeals as filed by the plaintiffs i.e. RSA-1735-1990, which is the off shoot of Civil Suit No.756 of 1985; and RSA-1734-1990, which is the off shoot of Civil Suit No.806 of 1985 are allowed. The suit filed by the plaintiffs-Appellants Mukhtiar etc. are decreed in toto. RSA-1245-1990 filed by one of the defendants of Civil Suit No.756 of 1985, is hereby dismissed. The judgments of the Courts below in both the suits are hereby restored. Decree sheet be prepared accordingly.

Pending application(s), if any, stand disposed of.

A photocopy of this order be placed on the file of connected case.

Order accordingly.

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