(A) Possession Suit – Principle of acquiescence – Illegal Construction by defendant – The plea taken by the defendant that he had raised construction in the years 1987-88 in the presence of the plaintiff, his father and co-sharers has been abandoned by him by specifically saying that he has not constructed anything on Khasra No. 2282/1. Hence, the learned First Appellate Court erred in holding that the plaintiff had acquiesced in the construction of the defendant and was not entitled to the relief of the possession. Thus, the learned First Appellate Court erred in dismissing the appeal on the ground that the plaintiff was barred by the principle of acquiescence from filing the suit. (Para 18, 19)
(B) Possession Suit – By Co sharer – Plea that suit is bad for non-joinder of necessary parties – Plea rejected – Held: A suit by a co-sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein. (Para 21, 22)
(C) Possession Suit – Limitation – Adverse possession – Plea that the construction was raised in the year 1987 and the suit was filed in the year 2002; hence, the same was barred by limitation. Held:This plea cannot be accepted. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that a suit based on the title where a plea of adverse possession had not been raised could not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. (Para 23)
HIGH COURT OF HIMACHAL PRADESH
2023 STPL(Web) 160 HP
Mohinder Singh Vs. Gurbax Singh (Since Deceased) Through His Lrs.
RSA No.300 of 2006-Decided on 11-9-2023
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