LexDHARAMPAL (DEAD) THR. LRS. versus PUNJAB WAKF BOARD & ORS.
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A B [2017] 8 S.C.R. 316 DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD & ORS. (Civil Appeal No. 2571 of2008) SEPTEMBER 13, 2017 [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.) Suit - Suit for possession and injunction - Counter claim - Title by adverse possession -Appellant's father in unauthorized C occupation of land belonging to respondent no.1-Wakf Board - Suit by respondent No. l against appellant's father for recovery of possession of the land - Suit dismissed in default - After two decades respondent No.1 filed suit against the appellant for possession and injunction as also against respondent no. 2 and 3 - Counter claim by appellant claiming ownership over the suit land on the basis of D perfecting his title by "adverse possession' against the Wakf Board - Dismissal of respondent no.1 s suit but counter-claim decreed - However, appellate court and High Court decreed respondent no. l 's suit declaring Wakf Board to be the owner of the suit land - On appeal, held: Respondent no. 1 being a Wakf Board, the period of E 30 years is applicable to establish the factum of "adverse possession" by any person against any Wakf property - Appellant could not establish his 30 years' continuous possession qua the respondent no. 1 because the continuity was broken twice by the positive act on the part of true owner-Walif Board first in 1971 and then in 1991 by asserting their ownership over the suit land - Thus, F the appellant failed to prove adverse possession on facts and law - Furthermore, instant suit not barred by virtue of r. 4 of Or. 9 CPC - Even otherwise, instant suit could be filed notwithstanding dismissal of the earlier suit since the parties and even part of the cause of action qua defendants were different in both the suits - Also, the G plea that since the suit was filed in 1971, it was barred uls. 55-C of the amended Wakf Act, cannot be accepted - Adverse possession - Code of Civil Procedure, 1908 - Or. 9 r. 9 - Walif (Amendment) Act, 1984. Dismissing the appeal, the Court H 316 DHARAMPAL (DEAD) THR. LRS. v. PUNJAB WAKF BOARD 317 HELD: 1.1 The submission that the suit is barred by virtue A of bar contained in Order 9 Rule 9 CPC has no merit for more than one reason. The appellant did not raise this plea in any of the Courts below and nor invited finding of any Court on this pleas. In this view of the matter, the appellant is not permitted to raise this plea for the first time in the Court. On merits also, it B has no substance. It is not clear from the record and nor the appellant was able to point out as to whether the dismissal of earlier suit was under Rule 3 or Rule 8 Of Order 9 CPC. If it is under Rule 3 then filing of fresh suit is permissible as provided under Rule 4 but if the dismissal is under Rule 8 then fresh suit may be barred as provided under Rule 9. So far as the instant C case is concerned, the dismissal of earlier suit is taken to be under Rule 3 and, therefore, the instant suit was not barred by virtue of Rule 4 and was, therefore, rightly entertained by the Courts below for being tried on merits. Even otherwise, the instant suit could be filed notwithstanding dismissal of the earlier D suit because the earlier suit was filed only against one defendant, i.e., father of defendant No.1 on a cause of action which accrued against one defendant at that time whereas the present suit was filed against three defendants out of which two defendants were not parties to the earlier suit. So the parties and even part of the cause of action qua defendants were different in both the suits. E [Paras 25, 26, 28, 29 and 30](324-D-E, F-H; 325-A·BI 1.2 The submission that the appellant (defendant No.1) was ·· able to establish his 'adverse possession" over the suit land since 1953 through his father and after his death· in 1987 through defendant No.I, who continued to remain in possession of the suit land till the filing of present suit in 1991, has no merit. [Paras 31, 321[325-C] 1.3 The plea raised by the original appellan~ (defendant No.l) in his counter-claim filed against the plaintiff wherein he sought a declaration of his ownership over the suit land only on the plea of "adverse possession" was not permissible. It is for the reason that a counter-claim is treated as a plaint under Order 8 Rule 6A(4) of the Code. In other words, in counter-claim, the stat~s of the defendant is that of the plaintiff because he seeks a relief for pass
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