Unit No. 142 comprising Khasra Nos. 2411 to 2417, 2428 and 2429 Unit No. 140 comprising Khasra Nos. 2405, 2406, 2408, 2409, 2410, 2418, 2419 and 2420 situate in the town of Dharmsala were held to be the evacuee property. The Custodian Department, therefore, sold Unit No. 142 to Amar Singh, the husband of Respondent 1-plaintiff whereas Unit No. 140 was sold to Roop Singh, predecessor-in-interest of the defendant-appellants herein, through registered conveyance deeds.

In the year 1968, Roop Singh, the predecessor-in-interest of the appellants herein brought a suit in the Court of Sub-Judge, Dharmsala for declaration that an area measuring 390 sq feet is the part of Unit No. 140. In the said suit, the husband of plaintiff-respondent herein was impleaded as defendant. The trial court did not find the title of the predecessor-in-interest of the appellants in the said land. Consequently, the suit was dismissed. The appeal preferred before the first appellate court was dismissed and the second appeal filed before the High Court also met with the same fate.

Thereafter, the respondent herein brought a suit for declaration that she has a title in the land measuring 86.90 sq.m. and also for permanent injunction. Alternatively it, was prayed that in case the respondent-plaintiff is not found in possession, the possession may be delivered to her. In the said suit, the appellants were impleaded as the defendants. The appellant-defendants filed a written statement wherein it was stated that this suit is barred by the principle of res judicata as in the earlier suit brought by the predecessor-in-interest, it was held that neither the plaintiff nor the defendants are the owners of the land in dispute. The trial court found that the plaintiff neither has any title in the land nor is she in possession. However, the trial court held that the suit is not barred by the principle of res judicata. In that view of the matter, the suit came to be dismissed.

The respondent-plaintiffs thereafter preferred an appeal before the first appellate court. The first appellate court taking a curious view of the matter, allowed of the appeal. It was held that since in the earlier suit the defendants were found having no title to the land or in possession over the land an, therefore, the respondent-plaintiff has a title to the land. However, in the same breath the first appellate court held that the suit is not barred by the principle of res judicata. In that view of the matter, the decree of the trial court was set aside and the suit stood decreed. The appellants thereafter preferred a second appeal before the High Court.

Before the High Court two substantial questions of law were framed. One of the questions was whether the respondent-plaintiff has possessory title in the land and the second questions was whether the suit brought by the respondent-plaintiff was barred by the principle of res judicata. The High COurt was of the view that since the plaintiff has possessory title in the land, therefore, she is entitled to relief of recovery of possession. So far as the second question is concerned, the High Court held that the suit is not barred by the principle of res judicata. In that view of the matter the second appeal was dismissed. It is against the said judgment of the High Court, the appellant-defendants are in appeal before us.

Shri A.B. Rohtagi, learned Senior Counsel, appearing for the appellants urged that the view taken by the court below that since the respondent-plaintiff has possessory title in the land and, therefore, entitled to recovery of possession, is erroneous. He further contended that no plea of dispossession having been taken in the plaint, the respondent-plaintiff was not entitled to any relief on the basis of the possessory title. However, the learned counsel for the respondent-plaintiff urged that since the defendants themselves have admitted that the respondent-plaintiff was dispossessed as far back in January 1982, therefore, the respondent-plaintiff was entitled to the relief of recovery of possession on the basis of possessory title in the land.

After we heard the matter, we find substance in the argument of Shri Rohtagi. For obtaining relief of recovery of possession on the basis of possessory title in the land, the plaintiff was required to plead and prove that she was in possession over the land and was subsequently dispossessed. Unless the plaintiff avers in the plaint and proves that she has been dispossessed subsequently, she was not entitled to relief of recovery of possession on the basis of possessory title. In the present case, in the absence of any plea of dispossession by the plaintiff, the suit could not have been decreed on the plea of possessory title in the land.

For these reasons, the appeal deserves to be allowed. We, accordingly, set aside the judgment under challenge. The appeal is allowed with costs. The decree of the trial court is restored.