Justice Sanjay Dhar observed that where the plaintiff bases the claim of ownership on alleged long, continuous, uninterrupted and hostile possession, a reference to an agreement to sell to explain the entry into possession does not, by itself, render the suit legally untenable.

The Court further held that an objection to the maintainability of a suit ordinarily has to be established by the party raising it, while the description of immovable property in a plaint is sufficient under Order VII Rule 3 of the Code of Civil Procedure, 1908, if it enables the property to be identified through relevant khasra numbers, measurements and other revenue particulars.

The Court was hearing a civil revision petition filed by Tara Chand and another challenging an order passed by the Munsiff, Billawar, which had decided preliminary issues concerning the maintainability of a declaratory suit in favour of the plaintiff, Bhagat Ram.

Background:

Bhagat Ram had filed a suit seeking a declaration that he was the exclusive owner in possession of 4 kanals. According to his pleadings, the defendants' predecessor-in-interest and her co-sharer had handed over 24 kanals and 6 marlas of land, including the disputed property, to him after receiving the agreed consideration of ₹30,000 under an agreement to sell dated March 12, 1991.

A sale deed was subsequently executed in his favour for 20 kanals and 5 marlas of land. However, the defendants allegedly did not execute a sale deed for their share in the remaining land, which formed the subject matter of the suit. The plaintiff claimed that he had remained in possession of the disputed land since 1991 without objection and sought a declaration of ownership on the basis of adverse possession.

The defendants challenged the maintainability of the suit, arguing that the property had not been properly described as required under Order VII Rule 3 CPC. They also contended that the plaintiff could not simultaneously rely on an agreement to sell and adverse possession to claim ownership, as the two pleas were contradictory.

The trial court decided both preliminary issues against the defendants, prompting them to approach the High Court.

Court's Observations:

Justice Dhar first examined the objection concerning the burden of proof on the issue of maintainability.

The Court noted that although the trial court's formulation of the issue appeared to place the burden on the plaintiff, it was the defendants who had challenged the maintainability of the suit. Therefore, the burden of establishing that the suit was not maintainable rested on them.

Referring to Section 9 CPC, the Court observed that civil courts ordinarily have jurisdiction to try all suits unless their cognizance is expressly or impliedly barred.

The Court held that the defendants could not shift the burden of proving their objection to the plaintiff merely because of the wording used while framing the issue. It observed that the trial court's choice of language had caused no prejudice to the defendants because the onus had rightly been placed on the party asserting non-maintainability.

The Court next considered the argument that the issue of maintainability involved a mixed question of law and fact and could not have been decided without recording evidence.

Rejecting this contention in the facts of the case, Justice Dhar held that the question could be determined on the basis of the averments in the plaint itself.

The Court observed,

“There was no need to lead evidence on the said issue because its determination depended upon the pleadings set up by the plaintiff.”

On the alleged contradiction between the agreement to sell and the claim of adverse possession, the Court noted that the plaintiff was not seeking a declaration of ownership on the basis of the agreement to sell. Instead, he relied on his alleged long, continuous, uninterrupted and hostile possession of the land.

The reference to the agreement, the Court explained, was intended only to describe how the plaintiff had initially entered into possession. His claim to ownership was founded on the alleged nature and duration of that possession, rather than on the agreement itself.

Justice Dhar accordingly held that, at the stage of examining maintainability, the plaintiff could not be said to have raised contradictory pleas merely because the plaint referred to the agreement to sell while asserting ownership through adverse possession.

The Court observed that the trial court was justified in holding that the plaintiff had not taken contradictory pleas so as to render the suit unmaintainable.

The High Court also examined the objection concerning the description of the suit property under Order VII Rule 3 CPC.

The provision requires a plaint concerning immovable property to contain a description sufficient to identify the property, including through boundaries or survey and settlement record particulars.

In the present case, the Court noted that the plaintiff had specified the relevant khasra numbers and measurements and had also furnished the khewat and khata numbers relating to the land.

Holding that these particulars were sufficient to identify the disputed property, the Court concluded that the requirements of Order VII Rule 3 CPC had been complied with.

Finding no ground to interfere with the trial court's order, the High Court dismissed the revision petition.

Case Title: Tara Chand and Another v. Bhagat Ram


Citation: 2026 LiveLaw (JKL)

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