Punjab-Haryana High Court
(O&M) Gulzari Begam vs Liakat Ali Khan on 7 April, 2026
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-2646-1989(O&M)
Reserved on: 29.01.2026
Pronounced on: 07.04.2026
Gulzari Begum (since deceased) through her LRs
... Appellant
Versus
Liakat Ali Khan and others
... Respondents
CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present: Mr. Kanwal Goyal, Advocate,
Mrs. Shruti Jain Goyal, Advocate,
Ms. Sheena Dahiya, Advocate,
Ms. Komal Klana, Advocate, and
Ms. Anagya Chauhan, Advocate, for the appellant.
Mr. Arihant Jain, Advocate,
Mr. Rishav Jain, Advocate, and
Mr. Kanish Jindal, Advocate, for respondents No.1 & 2.
None for respondents No.4 to 6.
***
VIKRAM AGGARWAL, J.
This is plaintiff’s appeal preferred against the judgment and
decree dated 31.08.1989, passed by the Court of Additional District Judge,
Sangrur, dismissing the appeal against the judgment and decree dated
12.02.1985, passed by the Court of Sub Judge Ist Class, Malerkotla, vide
which the suit for declaration and permanent injunction filed by the
appellant/plaintiff (Gulzari Begum) was dismissed.
2. For the sake of convenience, parties shall be referred to as per
their original status.
3. One Sajawar Khan had three sons, namely, Ahmed Khan,
Dilawar Jang Khan and Safder Jang Khan. Dilawar Jang Khan had two
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daughters, namely, Mukhtiar Begum (defendant No.3) and Gulzari Begum
(plaintiff). Safdar Jang Khan had two wives Amina Begum and Hafizan
Begum. From the marriage of Amina Begum, he had two sons, namely,
Shaukat Ali Khan (defendant No.1) and Liakat Ali Khan (defendant No.2).
One daughter of Ahmed Khan, namely, Zahida Begum was impleaded as
defendant No.7. Defendants No.4 to 6 were the persons to whom some land
is stated to have been alienated and were tenants on the said land.
4. Gulzari Begum instituted a suit for declaration that she along
with defendant No.3 (Mukhtiar Begum) was the owner in possession of
1/3rd share of land owned by Sajawar Khan. The case set up was that
Sajawar Khan was the owner of land measuring 18 kanals and 8 marlas
(fully described in the plaint), situated at Village Malerkotla. Upon his
death, the said land was inherited in equal shares by his three sons, namely,
Ahmed Khan, Dilawar Jang Khan and Safder Jang Khan, vide mutation
No.5990, dated 25.11.1968. Further, after the death of Safder Jang Khan,
1/3rd share devolved in equal shares upon defendants No.1 & 2 vide
mutation No.5991, dated 25.11.1968. The case of the plaintiff was that
defendants No.1 & 2, in connivance with revenue officials, got 1/3rd share
of Dilawar Jang Khan mutated in their (defendants No.1 & 2) favour vide
mutation No.5992, dated 25.11.1968. It was averred that this land was to be
mutated in their favour since they were entitled to inherit 1/3rd share of
Dilawar Jang Khan. It was claimed that the said mutation bearing No.5992
had been got executed behind the back of the plaintiff and defendant No.3,
without any notice to them. Accordingly, the mutation No.5992, dated
25.11.1968, was not binding upon the plaintiff and defendant No.3.
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4.1 It was claimed that defendants No.4 to 6, namely, Bashir, Babu
and Sadiq had been cultivating the suit land for the last 20/25 years and had
been paying Batai to the plaintiff as regards her share. It was also alleged
that defendants No.1 & 2 had sold some part of the land to defendants No.4
to 6 and their father Hussaini alias Saini vide mutation No.11002, as a result
of which they had been impleaded as parties in the suit.
5. Defendants No.1 & 2 opposed the suit. The stand taken was that
the parties were governed by custom in matters of inheritance and
succession, as per which the daughters of deceased did not inherit the land
belonging to their father.
5.1 It was claimed that defendants No.1 & 2 had perfected their
title by way of adverse possession since they were in possession of the suit
land ever since mutation No.5992, dated 25.11.1968, was sanctioned.
5.2 It was also claimed that the suit was barred by time as Dilawar
Jang Khan had expired in 1964-65, and that cause of action to the plaintiff
had arisen at that time. It was claimed that under the circumstances, the suit
instituted in 1983 was barred by limitation.
5.3 It was further averred that the plaintiff had never been in
possession of the suit land and, therefore, a simplicitor suit for declaration
was not maintainable without the relief of possession having been claimed.
5.4 It was further claimed that defendants No.1 & 2 had sold major
part of the suit land to Hussaini alias Saini vide mutation No.11002 and they
were the owners of land measuring 6 kanals and 15 marlas only.
5.5 However, the relationship between the parties was admitted.
The pedigree table was stated to be correct. It was admitted that initially
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Sajawar Khan was the owner of land measuring 18 kanals and 8 marlas, and
that after his death, the same had devolved in equal shares upon Ahmed
Khan, Dilawar Jang Khan and Safder Jang Khan. It was also admitted that
after the death of Safder Jang Khan, his land had been inherited by
defendants No.1 & 2. However, it was contended that in view of the
prevailing custom, the land owned by Dilawar Jang Khan was mutated in
their favour vide mutation No.5992, dated 25.11.1968. It was claimed that
the said mutation had rightly been sanctioned.
5.6 The other defendants did not cause appearance and were
accordingly proceeded against ex parte.
6. From the pleadings of the parties, the following issues were
framed:-
“1. Whether the plaintiff and defendants Nos.1 to 3 are
governed by custom in matters of succession and inheritance?
If so what that custom is and its effect? OPD.
2. Whether defendants Nos.1 and 2 have become the
owners of the land in dispute by adverse possession? OPD.
3. Whether the suit of the plaintiff is within time? OPP.
4. Whether suit is not maintainable in the present form?
OPD.
5. Whether the plaintiff is estopped by her act and
conduct from filing the present suit? OPD.
6. Whether defendants Nos.4 to 6 are bonafide purchasers
for consideration of a portion of the land in dispute? If so, its
effect? OPD.
7. Whether the plaintiff and defendant No.3 are the
owners in possession of 1/3rd share of the land in dispute after
the death of their father Dilawar Jang Khan? OPP.
8. Relief.”
7. Parties led their respective evidence.
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8. The trial Court, vide judgment and decree dated 12.02.1985,
dismissed the suit. It was held that defendants No.1 & 2 had not been able to
prove that any custom existed as per which the daughters would not be
entitled to inherit the land of their deceased father. However, it was held that
defendants No.1 & 2 had proved that they had perfected their title by way of
adverse possession. It was further held that the suit was barred by limitation.
It was also held that a mere suit for declaration without seeking the relief of
possession, once the plaintiff was not in possession of the suit land, was not
maintainable.
8.1 Aggrieved by the said decision, the plaintiff preferred an
appeal, which too was dismissed by the first appellate Court while upholding
the judgment and decree of the trial Court. Against the said decision, the
instant appeal was preferred.
9. Learned counsel for the parties were heard.
10. Mr. Kanwal Goyal, learned counsel representing the appellant
strenuously urged that both Courts have gravely erred in non-suiting the
plaintiff. It was argued that defendants No.1 & 2 could not prove that there
was some custom prevalent amongst them, as per which the daughters were
not entitled to inherit the land of their father after his death.
10.1 As regards the issue of adverse possession, it was argued that
defendants No.1 & 2 could not have raised the question of title and adverse
possession simultaneously. It was further argued that even otherwise, the
defendant(s) had not been able to prove that they had perfected their title by
way of adverse possession, as the ingredients to prove the same had not been
fulfilled. Further, it was not pleaded as to when they had come in possession
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of the suit land and that such possession was open, hostile, and continuous
from a particular point of time.
10.2 As regards limitation, learned counsel submitted that when a
suit is filed on the basis of inheritance, there is no limitation.
10.3 Arguing on the point of maintainability, learned counsel
submitted that the suit land was agricultural land and, therefore, relief of
possession could have been claimed, as the Civil Courts have no jurisdiction
to grant possession. It was submitted that the only relief that could have been
claimed was of declaration with consequential relief of permanent
injunction.
10.4 It was submitted that the mutation, in any case, had been
sanctioned at the back of the plaintiff and defendant No.3, without any
notice to them. It was argued that it had duly come in evidence of the
defendants itself that plaintiff and her sister were Parda Nasheen ladies and,
therefore, they had not acquired knowledge of the mutation having been
sanctioned.
10.5 It was argued that the plaintiff and defendant No.3 had become
co-sharers of the suit land along with defendants No.1 & 2 after the death of
their father and, therefore, there was no requirement to seek the relief of
possession, which, even otherwise, could not have been granted by the Civil
Court.
10.6 Learned counsel further argued that strangely all three
mutations, bearing Nos.5990, 5991 & 5992, were sanctioned on the same
day, i.e. on 25.11.1968, meaning thereby they had been got sanctioned by
defendants No.1 & 2 in connivance with revenue officials. It was argued that
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otherwise, mutations should have been sanctioned after the death of
respective landowners, and not on one day.
10.7 It was also argued that while non-suiting the plaintiff, the trial
Court relied upon an overruled judgment. It was submitted that the judgment
in the case of Naginder Singh and others v. Chanan Singh and others,
1983 CLJ 432 had been overruled by a Division Bench of this Court in
Mohinder Singh (died) and Rep. by his Lrs. and Anr. v. Kashmira
Singh, 1985 AIR (P&H) 215.
10.8 As regards alienation of the suit land by defendants No.1 & 2, it
was submitted that alienation would be taken to have been made from the
share of defendants No.1 & 2 and not from the share of the plaintiff. It was
argued that efforts were made to serve defendants No.4 to 6 so that they
could have deposed that they had been paying Batai to the plaintiff, but they
never appeared. It was argued that they did not even contest the suit and,
therefore, the plaintiff could not have been non-suited on account of non-
examination of defendants No.4 to 6. Learned counsel referred to the entire
oral and documentary evidence led on the record of the case to bring home
his point.
11. In support of his contentions, learned counsel placed reliance
upon the decisions rendered by the Supreme Court of India in Narasamma
and others v. A. Krishnappa (Dead) Through Lrs., 2020 AIR (SC) 4178;
Akkamma and others v. Vemavathi and others, 2021 (18) SCC 371; Sk.
Golam Lalchand v. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal
Bayes and others, 2024 AIR (SC) 4193; Hussain Ahmed Choudhury and
others v. Habibur Rahman (Dead) Through LRs and others, 2025 INSC
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553; the Madras High Court in C.R. Ramaswami Ayyangar (Minor) v.
C.S. Rangachariar and others, 1940 AIR (Madras) 113; and this Court in
Smt. Saman Kaur and others v. Amrik Singh and others 1967 PLR 862;
Kishori Lal and another v. Mst. Man Bai and others, 1960 AIR
(Punjab) 485; Harnam Kaur and others v. Malkiat Singh and others,
1986 PLJ 687 (LFID # 52662); Harnam Kaur v. Malkiat Singh 1989(1)
RRR 475 (LFID # 52023); Gurcharan Singh and others v. Surjit Kaur
and others, Vol.CXLI-(2005-3) PLR 232 [RSA-209-2005, decided on
08.05.2005]; Inder Singh (since deceased, through his LRs) v. Mahla
Singh (since deceased, through his his LRs) and others, 2014(2) RCR
(Civil) 90; Sarabjeet Kaur and others v. Gurmel Kaur and others,
2010(5) RCR (Civil) 723; Anari v. Om Parkash, 2007(1) PLJ 46;
Mohinder Singh (died) and Rep. by his Lrs. and Anr. v. Kashmira
Singh, 1985 AIR (P&H) 215.
12. Per contra, learned counsel for respondents No.1 & 2
(defendants No.1 & 2) submitted that there is no illegality in the impugned
judgments and decrees.
12.1 It was argued that in a second appeal, there can be no
interference with concurrent findings of facts. It was argued that the findings
on adverse possession would be taken to findings of facts and, therefore, the
same cannot be interfered with.
12.2 Learned counsel submitted that the scope of interference in
second appeal is very much limited and Section 41 of the Punjab Courts Act,
1914 (for short, ‘the Punjab Courts Act‘) also does not permit interference
in the concurrent findings of facts.
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12.3 It was argued that a mere suit for declaration without seeking
relief of possession, once the plaintiff was not in possession of the suit land,
was not maintainable.
12.4 It was argued that defendants No.1 & 2 had successfully proved
that they had perfected their title by way of adverse possession.
12.5 Learned counsel also argued that the suit filed by the plaintiff
was miserably barred by time as it was instituted on 02.02.1983, after the
sanction of mutation No.5992 dated 25.11.1968.
12.6 Learned counsel referred to the entire oral and documentary
evidence led on the record of the case.
13. In support of his contentions, learned counsel placed reliance
upon the decisions of the Supreme Court of India in Anathula Sudhakar v.
P. Buchi Reddy (Dead) By LRs and others, 2008(4) SCC 594; Gurdev
Kaur and others v. Kaki and others, 2007(1) SCC 546; Narayanan
Rajendran and another v. Lekshmy Sarojini and others, 2009(5) SCC
264; Laxmidevamma and others v. Ranganath and others, 2015(2) SCC
(Civil) 575; Ram Saran and another v. Smt. Ganga Devi, 1973(2) SCC
60; the Madhya Pradesh High Court in Rasid and another v. Salil and
others (SA-1393-2018, decided on 17.06.2019, LFID # 1509296), and this
Court in Neter Pal v. Manohar Lal (RSA-1032-1999, decided on
01.10.2025); Amritpal Kaur v. Mohinder Kaur and others, 2022(3) RCR
(Civil) 316; Arjan v. Sada Rama and others, 2010(66) RCR (Civil) 94;
Kidara v. Mange, 2001(2) RCR (Civil) 669; Mohinder Singh v.
Shamsher Singh, 2010(2) RCR (Civil) 505; Lal Singh v. Ran Singh,
2009(10) RCR (Civil) 477; Kartar Singh v. Ujagar Singh, 1993(2) RRR
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603 (LFID # 49750; Jagir Singh v. Smt. Gurdial Kaur, 1992(2) RRR 92
(LFID # 51060); Satnam Singh v. Jit Ram, 2019(4) RCR (Civil) 213.
14. I have considered the submissions made by learned counsel for
the parties.
15. As regards the scope of second appeal, it is now a settled
proposition of law that in Punjab and Haryana, second appeals preferred are
to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and
not under Section 100 CPC. Reference in this regard can be made to the
judgment of the Supreme Court in the case of Pankajakshi (Dead) through
LRs and others v. Chandrika and others, (2016)6 SCC 157, followed by
the judgments in the case of Kirodi (since deceased) through his LR v.
Ram Parkash and others, (2019) 11 SCC 317 and Satender and others v.
Saroj and others, 2022(12) Scale 92. Relying upon the law laid down in the
aforesaid judgments, no substantial question of law is required to be framed.
16. Reverting to the matter in hand, there are certain admitted facts.
It is a conceded position that Sajawar Khan was owner in possession of land
measuring 18 kanals and 8 marlas. Upon his death, the said land was
inherited by his three sons, namely, Ahmed Khan, Dilawar Jang Khan and
Safder Jang Khan, in equal shares. The pedigree table was also admitted. It
was also admitted that all three mutations bearing No.5990, 5991 & 5992
were sanctioned on the same day, i.e. on 25.11.1968. First of all, this very
fact raises an eyebrow. The dates of death of Sajawar Khan, Dilawar Jang
Khan and Safder Jang Khan are different. Under the circumstances, it is not
understood as to why all mutations were sanctioned together on 25.11.1968.
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16.1 Concededly, there was no notice to the plaintiff and defendant
No.3 about sanction of mutation No.5992. It came in evidence of DW2 that
the plaintiff and defendant No.3 were Parda Nasheen ladies. Once mutation
after the death of Dilawar Jang Khan was being sanctioned in favour of
defendants No.1 & 2, due notice should have been given to the plaintiff and
defendant No.3. Nothing was brought on record by defendants No.1 & 2,
despite a specific stand having been taken by the plaintiff in this regard.
16.2 In so far as the stand of defendants No.1 & 2 that they were
governed by custom, as per which the daughters would not inherit the land
of their deceased father, is concerned, they were not able to prove the same
and both Courts recorded concurrent findings that defendants No.1 & 2 had
failed to prove that any such custom existed. Once this was so, it would have
to be seen as to under what circumstances, the suit land was mutated in
favour of defendants No.1 & 2 without any notice to the plaintiff and
defendant No.3. Therefore, it appears to be a clear-cut case of connivance
because otherwise there was no reason for mutation No.5992 being
sanctioned in favour of defendants No.1 & 2. Nothing was brought on record
that plaintiff or defendant No.3 was present when the mutation was
sanctioned and effected. Under the circumstances, it is clear that defendants
No.1 & 2 were unable to prove that they had acquired title over the suit land
on account of existence of custom.
16.3 Defendants No.1 & 2 then took a contradictory plea of adverse
possession. First of all, in the considered opinion of this Court, the plea of
ownership by way of title and adverse possession cannot co-exist. In taking
this view, this Court is supported by a decision of the Apex Court in
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Narasamma and others v. A. Krishnappa (Dead) Through Lrs. (supra),
wherein it was held that a plea of title and adverse possession could not be
advanced simultaneously, from the same date.
16.4 A similar view was taken by the Apex Court in Dagadabai v.
Abbas, (2017) 13 SCC 705.
16.5 Coming back to the present case, the claim of defendants No.1
& 2 is based on mutation No.5992, dated 25.11.1968. They claim both title
as also the adverse possession from the same date. In view of the judgment
in the case of Dagadabai (supra), such a plea is not legally permissible.
16.6 Even otherwise, to prove a plea of adverse possession, certain
conditions would be required to be fulfilled. The principles governing the
plea of adverse possession are well known and well settled by the Apex
Court. The said principles were noticed by a coordinate Bench in Kirpal v.
Surender Mohan and another (RSA-3295-2019, decided on 27.08.2025:-
“8. The Hon’ble Supreme Court in the case of Dagadabai
V/s Abbas [(2017) 13 SCC 705] has laid down the following
principles governing the adverse possession:
’15. Third, the plea of adverse possession being
essentially a plea based on facts, it was required to be
proved by the party raising it on the basis of proper
pleadings and evidence. The burden to prove such plea
was, therefore, on the defendant who had raised it. It
was, therefore, necessary for him to have discharged the
burden that lay on him in accordance with law. When
both the courts below held and, in our view, rightly that
the defendant has failed to prove the plea of adverse
possession in relation to the suit land then such
concurrent findings of fact were unimpeachable and
binding on the High Court.
16. Fourth, the High Court erred fundamentally in
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RSA-2646-1989(O&M) 13(defendant) to first admit the ownership of the plaintiff
before raising such a plea”. In our considered opinion,
these observations of the High Court are against the law
of adverse possession. It is a settled principle of law of
adverse possession that the person, who claims title over
the property on the strength of adverse possession and
thereby wants the Court to divest the true owner of his
ownership rights over such property, is required to
prove his case only against the true owner of the
property. It is equally well settled that such person must
necessarily first admit the ownership of the true owner
over the property to the knowledge of the true owner
and secondly, the true owner has to be made a party to
the suit to enable the Court to decide the plea of adverse
possession between the two rival claimants.
17. It is only thereafter and subject to proving other
material conditions with the aid of adequate evidence on
the issue of actual, peaceful, and uninterrupted
continuous possession of the person over the suit
property for more than 12 years to the exclusion of true
owner with the element of hostility in asserting the
rights of ownership to the knowledge of the true owner,
a case of adverse possession can be held to be made out
which, in turn, results in depriving the true owner of his
ownership rights in the property and vests ownership
rights of the property in the person who claims it.
18. In this case, we find that the defendant did not
admit the plaintiff’s ownership over the suit land and,
therefore, the issue of adverse possession, in our opinion,
could not have been tried successfully at the instance of
the defendant as against the plaintiff. That apart, the
defendant having claimed the ownership over the suit
land by inheritance as an adopted son of Rustum and
having failed to prove this ground, he was not entitled to
claim the title by adverse possession against the
plaintiff.’In Ravinder Kaur Grewal V/s Manjit Kaur [(2019) 8 SCC 729]
it was inter alia held that:
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’60. The adverse possession requires all the three
classic requirements to co-exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e.
dequate in publicity and nec precario i.e. adverse to a
competitor, in denial of title and his knowledge. Visible,
notorious and peaceful so that if the owner does not take
care to know notorious facts, knowledge is attributed to
him on the basis that but for due diligence he would
have known it. Adverse possession cannot be decreed on
a title which is not pleaded. Animus possidendi under
hostile colour of title is required. Trespasser’s long
possession is not synonymous with adverse possession.
Trespasser’s possession is construed to be on behalf of
the owner, the casual user does not constitute adverse
possession. The owner can take possession from a
trespasser at any point in time. Possessor looks after the
property, protects it and in case of agricultural property
by and large the concept is that actual tiller should own
the land who works by dint of his hard labour and
makes the land cultivable. The legislature in various
States confers rights based on possession’.”
16.7 In the present case, defendants No.1 & 2 did not even plead as
to when they had come in possession of the suit land. They were unable to
prove that their possession was adverse to the plaintiff, or that it was in
denial of the plaintiff’s title and to the plaintiff’s knowledge. They were
further unable to prove that the said possession was open, hostile and
peaceful. In fact, the plea of adverse possession was raised only on the basis
of long possession which, as per the Apex Court in Ravinder Kaur Grewal
v. Manjit Kaur (supra) is not synonymous with adverse possession.
17. In the case of Kishori Lal and another v. Mst. Man Bai and
others (supra), it was also held by a Division Bench of this Court that
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RSA-2646-1989(O&M) 15exclusive possession of a larger share by a co-sharer cannot itself be
regarded as wrongful or adverse unless it amounts to an open and hostile
overt act to the knowledge of the ousted co-owner. It was held that mere
mutation entries made at the back of the ousted co-sharer cannot be
construed to amount to an overt act:-
“14. The Judicial Committee has in Debendralal Khan’s case
authoritatively laid, down that the nature of the requisite
possession must necessarily vary with the nature of the subject
possessed, and that the classical requirement namely nec vi nec
clam nec precario must be established. The counsel submits
that according to the authorities cited above Smt. Man Bai
could with reasonable and due diligence have come to know of
the change in the revenue entries and of the possession of the
proprietors. In my view the counsel is not right in his
submission. On the facts of this case it is obvious that a lady in
the position of Smt. Man Bai, living in a different village and
believing Mst. Makhman to be alive and in possession of
property, not have with due diligence come to know either of
the change in the revenue entries or of the alleged exclusive
and hostile possession of the plaintiffs and defendants Nos. 8 to
12. It is clear that the mutation proceedings of 1930 were kept
secret from Smt. Man Bai and the entry in question was
secured behind her back and without her knowledge. The trial
Court has dealt with this matter at considerable length under
Issue No. 6 and I am also inclined to agree with its reasoning
and conclusions. The counsel for the appellant’s has not been
able successfully to assail them. Smt. Man Bai is a co-sharer,
being also one of the proprietors and, therefore, exclusive
possession of a larger share by the other co-sharers cannot by
itself be regarded as wrongful or adverse unless it amounts to
an open and hostile overt act to the knowledge of the ousted co-
owner. See Prem Singh v. Tej Singh, AIR 1950 East Punjab
252. Ouster obviously implies denial of the right of the
claimant to his or her knowledge, actual or presumed.”
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18. In the considered opinion of this Court, this finding on the plea
of adverse possession was not a pure finding of fact but was based upon total
misreading and misconstruing of evidence led on the record of the case as
also misapplication of the settled position of law.
19. Coming to the issue of limitation, it is well settled that when a
suit is instituted on the basis of inheritance, there is no limitation. A Division
Bench of this Court in the case of Mohinder Singh (died) and Rep. by his
Lrs. and Anr. v. Kashmira Singh (supra) held that no period of limitation
is prescribed for filing a suit for possession on the basis of inheritance. In
this judgment, the Division Bench overruled the judgment in the case of
Naginder Singh and others v. Chanan Singh and others (supra), which
had been relied upon by both Courts while non-suiting the plaintiff.
20. A similar view was taken by a coordinate Bench in the case of
Harnam Kaur v. Malkiat Singh (supra), wherein it was held that no
limitation is prescribed for a suit on the basis of title, and that the suit filed
after 12 years would not be barred. The coordinate Bench also relied upon
the Division Bench’s judgment in the case of Mohinder Singh (died) and
Rep. by his Lrs. and Anr. v. Kashmira Singh (supra) while taking this
view.
21. Now coming to the issue as to whether a mere suit for
declaration would be maintainable, this Court is of the considered opinion
that the suit was duly maintainable. Concededly, the suit land is agricultural
land and, therefore, no possession could have been granted by the Civil
Court and the jurisdiction would vest only with the Revenue Courts to grant
possession by way of partition. Consequently, the plaintiff rightly instituted
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RSA-2646-1989(O&M) 17
the suit for declaration along with consequential relief of permanent
injunction. In the case of Akkamma and others v. Vemavathi and others
(supra), the Apex Court held that there is no bar in the Specific Relief Act,
1963 in granting standalone declaratory decree. In that case, the trial Court
had come to a conclusion that the plaintiff was the owner of the suit property
but since no relief of possession had been sought, declaration of title could
not be granted. The Apex Court discarded the said line of reasoning
observing that it seemed to be a misconstruction of the provisions of Section
34 of the Specific Relief Act:-
“17. So far as the reliefs claimed in the suit out of which this
appeal arises, prayer for declaration was anchored on two
instances of interference with the possession of land of the
plaintiffs and injunctive relief for restraint from interference
with the property was also claimed. But possession of the said
property by the original plaintiff was not established. The
alternative relief sought to be introduced at a later stage of the
suit was also found to be incapable of being entertained for the
reason of limitation. Thus, the foundation of the case of the
plaintiffs based on these two factual grounds collapsed with the
fact-finding Courts rejecting both these assertions or
allegations. But that factor ought not to be a ground for
denying declaration of ownership to the plaintiffs. There is no
bar in the Specific Relief Act, 1963 in granting standalone
declaratory decree. The Trial Court came-to-a-positive finding
that the original plaintiff was the owner of the suit property.
But it held that in absence of declaration of relief of possession
by the plaintiff, declaration of title cannot be granted. We have
already expressed our disagreement with this line of reasoning.
It seems to be a misconstruction of the provisions of Section 34
of the 1963 Act. The Trial Court and the High Court have
proceeded on the basis that the expression “further relief”
employed in that proviso must include all the reliefs that ought
to have been claimed or might have been granted. But in our
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RSA-2646-1989(O&M) 18
view, that is not the requirement of the said proviso. This takes
us to the corollary question as to whether the 1987 suit could
have been held to be barred under the principle contained in
Order 2, Rule 2 of the Code of Civil Procedure. 1908. In our
opinion, the said provisions of the Code would not apply in the
facts of this case, as the denial of legal right in the 1987 suit is
pegged on two alleged incidents of 15th and 25th February,
1957. These allegations can give rise to claims for declaration
which obviously could not be made in the 1982 suit. The claim
for declaratory decree could well be rejected on merit, but the
suit in such a case could not be dismissed invoking the
principles incorporated in Order 2, Rule 2 of the Code of 1908.
18. The High Court has proceeded on the footing that in the
subject-suit, the original plaintiff must have had asked for
relief for recovery of possession and not having asked so, they
became disentitled to decree for declaration and possession.
But as we have already observed, the proviso to Section 63 of
the 1963 Act requires making prayers for declaration as well as
consequential relief. In this case, if the relief on second count
fails on merit, for that reason alone the suit ought not to fail in
view of aforesaid prohibition incorporated in Section 34 of the
1963 Act.”
22. A similar view was taken by a coordinate Bench in Sarabjeet
Kaur and others v. Gurmel Kaur and others (supra):-
“…The last argument raised by the learned counsel for the
appellant is that the present suit has been filed by the plaintiff
simply for declaration without seeking possession and is not
maintainable in view of Section 34 of the Specific Relief Act,
1963. Section 34 of the Specific Relief Act, 1963 Specific Relief
Act, 1963 reproduced as under:
“Discretion of court as to declaration of status or right-
Any person entitled to any legal character, or to any
right as to any property, may institute a suit against any
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion
make therein a declaration that he is so entitled, and theRAJAN
plaintiff need not in such suit ask for any further relief:
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RSA-2646-1989(O&M) 19
Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so.
Explanation-A trustee of property is a “person
interested to deny” a title adverse to the title of some one
who is not in existence, and whom if in existence, he
would be a trustee.”
According to he Proviso to the aforesaid Section, no Court
shall make any such declaration where the plaintiff being able
to seek further relief then a mere declaration of title, omits to
do so. It is no-where provided that when a suit for declaration
is filed possession is necessarily to be asked for, however, on a
perusal of the plaint, it is very much clear that the plaintiff has
sought relief of declaration and consequent permanent
injunction as well as any other relief as the Court may deem
fit. The prayer clause of the plaint is reproduced as under:
“Hence, it is prayed that a decree for declaration to the
effect that the plaintiff is owner and in possession of ½
share of the land measuring 92 Kanals 9 Marlas, as
fully detailed and described in the heading of the pliant,
situated at village Singhpura Tehsil and District Sirsa,
as being the legally wedded wife of the deceased Shri Jai
Singh alias Hardam Singh son of Ram Ditta Singh, and
that the entries of the revenue records such as Mutation
No. 3684 sanctioned on 24.4.1999 by A.C. Ist Grade, In
favour of the present defendant Sarbjeet Kaur for the
above said total land measuring 92 kanals 9 marlas
relating to Jai Singh alias Hardam Singh (since
deceased) is wrong, incorrect, against law and facts,
null and void, inoperative ineffective on the rights of the
plaintiff and as such the same is liable to be ignored and
liable to be corrected in favour of the plaintiff to he
extent of her ½ share of the total land, and further the
alleged Will alleged to have been executed by Shri Jai
Singh alias Hardam Singh in favour of the defendant
Sarbjeet Kaur, registered in the office of Sub Registrar,
Kalanwali at Sr. No. 101 on dated 28.10.1997 is also
wrong, incorrect, as a result of fraud,
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RSA-2646-1989(O&M) 20misrepresentation, concealment of the facts and as such
the same are also liable to be ignored and set aside and
as a consequential relief of permanent injunction
restraining the defendant from illegally and forcibly
interfering into the peaceful cultivating possession of
the plaintiff over the suit land, and further from
alienating the whole of the total suit land, including the
share of the plaintiff, by way of sale, transfer, exchange,
mortgage or by creating any bar on the suit land, be
passed in favour of the plaintiff and against the
defendant with costs of this suit.
Any other relief which this Hon’ble court may deem fit
and proper in favour of the plaintiff, in addition to it or
in the alternative of it may also be granted.”
23. In the case of Anari v. Om Parkash (supra), a coordinate
Bench held that the argument that a simplicitor suit for declaration is not
maintainable, was devoid of merit. It was held that the plaintiff in that case
would be a co-owner and having sought a declaration and after having got
the same, she would be entitled to seek partition from the Revenue Courts. It
was held that since the land in dispute was agricultural land, it was not
necessary for the plaintiff to claim any consequential relief of possession as
partition could be effected only by the Revenue Court and not from any
other Court for actual and physical possession:-
“6. The other argument that the simpliciter suit for
declaration is not maintainable, is again without any merit in
view of the findings. The plaintiff would be a co-owner being
daughter of Dhapa along with Smt. Anari. The plaintiff has
sought declaration to the said extent. Having got the
declaration, the plaintiff would be entitled to seek partition
from the Revenue Courts. Since land in dispute is agricultural
land, it was not necessary for the plaintiff to claim any
consequential relief of possession as partition could be effected
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RSA-2646-1989(O&M) 21only by the Revenue Court and not from any other Court for
actual physical possession.”
24. I have perused the judgments, reliance upon which was placed
by learned counsel for the parties. In so far as the judgments relied upon by
learned counsel for the appellant are concerned, reference to most of them
has already been made in the preceding paragraphs. As regards the
judgments relied upon by learned counsel for the respondent(s), they do not
come to the aid of the respondent(s) in view of the findings recorded in the
preceding paragraphs.
25. In view of the foregoing discussion, the impugned judgments
and decrees are found to be unsustainable. Consequently, the instant appeal
is allowed. The impugned judgments and decrees are set aside and the suit of
the plaintiff is decreed. Decree-sheet be drawn accordingly.
26. Pending application(s), if any, also stands disposed of.
( VIKRAM AGGARWAL )
JUDGE
April 7, 2026
Rajan
Uploaded on: 07.04.2026
Whether speaking / reasoned: Yes
Whether Reportable: Yes
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