Punjab-Haryana High Court
Sohan Singh vs Piara Singh And Ors. on 8 September, 1999
Equivalent citations: (2000)126PLR255
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is regular second appeal and has been directed against the judgment and decree dated 19.11.1998 passed by the Addl. Distt. Judge, Kapurthala, who dismissed the appeal of Sohan Singh, Plaintiff appellant and affirmed the judgment and decree dated 27.8.1998 passed by the civil Judge (Jr. Divn.), Phagwara, who dismissed the plaint of the plaintiff but decreed the counter claim of the defendants and directed the plaintiff to vacate the premises in question as he was in permissive possession being licensee of defendants 1. and 2.
Some facts may be noticed in the following manner:-
The plaintiff filed a suit for permanent injunction against the defendants with a prayer that the defendants be restrained from interfering in his possession with respect of House No. 153 situated in Mohalla Rattanpura, Phagwara. As per the allegations of the plaintiffs, he was in possession of the house in dispute since 22.6.1996 and his possession is adverse, hostile and peaceful against the defendants who are none else but the real brother and Bharjai (sister-in-law) of the plaintiff. The plaintiff further submitted that his hostile possession is in the knowledge of the defendants. So much so he had taken water and sewerage connection in his name. The defendants are threatening to dispossess him forcibly and illegally from the house in dispute.
2. The suit was contested by the defendants on the plea that the house in dispute stands on two plots No. 118 and 119 purchased in the name of defendant No. 2 by her father-in-law vide two registered sale deeds dated 22.5.1964. Defendant No. 1 had been serving outside Punjab in police from 1958 till his retirement in 1990 and he is still residing at Gwalior. Defendant No. 1 was married to defendant No. 2 in October, 1963 and he constructed the house in the year 1965 from 1965 till 1971-72 the house remained in possession of his various friends and relatives without any remuneration, with the permission of the defendants. The plaintiff who is elder brother of defendant No. 1 was to perform the marriage of his daughter in 1971-72 and he had no house in Phagwara. He requested the defendants to allow him to perform the said marriage in the said house. Resultantly, the defendants permitted him to do so. The plaintiff, thereafter, was asked to deliver the possession, which was given to him on account of love and affection. The possession of the plaintiff is permissive and not hostile to the defendants. The defendant No. 1 is paying the house tax assessed by the Committed. The defendants are owners in possession of the house. A counter claim was also lodged by the defendants and it was prayed that a decree for permanent injunction be passed in their favour and against the plaintiff.
3. A rejoinder was filed by the plaintiff to the counter claim of the defendants and the following issues were framed.:-
1. Whether the plaintiff is in possession of the house in dispute? OPP
2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the plaintiff is in permissive possession as licensee on the defendant No. 2? If so its effect? OPD
5. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD
6. Whether the defendants are entitled to relief of mandatory injunction as put forth in the counter claim? OPD
7. Relief.
4. An additional issue to the following effect was also framed:-
"A) Whether the plaintiff is owner of the house in dispute by way of adverse possession? OPP."
5. The trial court came to the conclusion that the possession of the plaintiff was permissive under defendants No. 1 and 2. He has not been able to prove his hostile possession. Resultantly, his suit was dismissed and the counter claim of the defendants was allowed and a decree for mandatory injunction was passed in favour of the defendants and against the plaintiff. The plaintiff filed an appeal before the appellate court, Kapurthala, who for the reasons given in para-8 of the judgment dismissed the appeal.
"8. I have gone through the evidence on the record. Sudarshan Kumar HRC DW7 has deposed that Pritam Singh executed two sale deeds Ex.DW7/1 and Ex.DW7/2 in favour of Harbhajan Kaur respondent No. 2. Even in replication the plaintiff appellant admitted that sale deed was executed in the name of respondent No. 2, but taken the plea of benami transaction. Benami transaction has been declared as illegal transaction by law. Even there is not an iota of evidence to prove that sale consideration of sale deeds Ex. DW7/1 and Ex. DW7/2 was paid by the appellant. Moreover, the very fact that the appellant claimed ownership by adverse possession prima facie proves that he admitted the ownership of the respondents but claimed the ownership by adverse possession being in possession thereof. The same view was taken by our own Hon'ble High Court in (1988-1) Rev. L.R. 105, Murti Shri Durga Bhawani (Hetuwali)Trust v. Harbhajan Singh, Adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right and denies them. The party claiming to hold the immovable property adversely must at least go on to prove that it was in denial of the owner's title and that he excluded him from the enjoyment of its property. In 1992 C.C.C. 126 (P&H), Balwan Singh v. Bujah (deceased) through LRs. it has been held by our Hon'ble High Court that mere possession alone is not sufficient to establish adverse possession and possession must be open and hostile to the knowledge of true owner. From the perusal of the evidence on the file the plaintiff appellant cannot be declared owner of the suit house. Shingara Singh PW1 and G.S. Walia PW2 are totally silent that the plaintiff-appellant is in adverse possession of the suit property. PW2 G.S. Walia admitted that he has not seen any documentary title deed in favour of the plaintiff appellant and he does not know that in which capacity the plaintiff appellant is in possession of the suit house. Madan Lal PW3 has proved that children of the plaintiff appellant were studying in his school. But in his cross examination he admitted that there is no particular house number mentioned in his record against the address of the alleged students. Then how it is proved on record that the plaintiff appellant was in possession of the house in dispute bearing No. l53 in 1966. The documents Ex.PW3/1 to PW3/4 is of no help to the plaintiff appellant. The letter Ex.PW7/1 dated 12.6.64 alleged to have been written by respondent No. 1 to the appellant was not put to the defendant when he appeared in the witness box, not it is proved on the file that any payment was made by the appellant to the respondent regarding construction of the house or purchase of the plot underneath it. The documents produced by PW4 Gurjeet Singh Ex.PW4/1 to Ex.PW4/4 also were of no help to the appellant. He admitted in his cross examination that number of house in the address of these students is not mentioned. He further deposed that in general routine any person mentioning his address of his residence, they write the same without any verification. Even PW8 Darshan Singh admitted that in the summoned register there is neither house number nor street is mentioned against the address of children of plaintiff. Even the evidence of PW5 and PW6 is of no help to the appellant. From the evidence of PW8 and PW9 it is also not clear that where the plaintiff appellant used cement and bricks. There is writing dated 14.4.95 which clinches the matter in favour of the respondents. In order to prove the execution of this writing dated 14.4.95 the respondents examined Harbhajan Singh DW 4 who deposed that writing Ex.DW4/1 was executed between the parties and he is a marginal witness to the same. Karnail Singh DW10 also deposed that Ex.DW4/1 was scribed by his brother Ranjit Singh. In this writing the appellant admitted that the respondents are owners of the suit house and agreed to vacate the house in dispute. DW12 Ranjit Singh deposed that Ex.DW4/1 compromise was scribed by him at the instance of the parties. These witnesses were cross-examined at length by the learned counsel for the plaintiff, but he failed to shake their credibility. In the agreement Ex.DW4/1 the appellant admitted that defendant No. 2 is owner of the house in dispute and he agreed to vacate the suit house. The evidence on the file coupled with Ex.DW4/1 clearly shows that the appellant was in permissive possession of the house in dispute under the respondents being the real brother of respondent No. 1. Permissive possession, however long, cannot be itself be said to have become hostile till there is an assertion of an adverse possession to the knowledge of the respondents. The plaintiff appellant miserably failed to prove on record any overt act done openly to the knowledge and derogation of ownership of the true owner. The learned Counsel for the respondent has cited case law Harnam Kaur v. Malkiat Singh 1986 PLJ 687. Therein it has been held that possession simiplicitor howsoever long it may be, is not sufficient in law to perfect title by prescription unless shown that possession is open and hostile to the knowledge of the true owner. Permissive possession cannot turn into hostile possession unless some overt act is done openly to the knowledge and in derogation of ownership of the true owner. In 1995(1) CCC 40 (S.C.), Thakur Kishan Singh v. Arvind Kumar, it has been held by the Apex Court that a possession of a co-owner or of a licensee or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. The law laid down in these cases is fully applicable to the facts of the case in hand. Therefore, the learned lower court has rightly held that although the plaintiff is in possession of the suit house, but he had failed to prove that he is owner of the house in dispute byway of adverse possession, and as such he is not entitled to discretionary relief of permanent injunction. Although this suit is for permanent injunction, but the main relief claimed by the appellant is of declaration that the appellant is owner in possession of the suit house byway of adverse possession. When the appellant has failed to prove his ownership, then he is not entitled to relief of injunction only on the basis of his possession and this view is supported by the case law 1986 P.L.J. 168. Sahan Singh v. Jhaman and 1987 All India LLR 593. Even the question of forcible dispossession from suit house does not arise and in Ex.DW4/1 the appellant admitted to vacate the suit house within one month from 14.4.95. The licence of the appellant was terminated in the gathering of respectable persons of the family. After the termination of the licence the permissive possession comes to an end and appellant is not entitled to retain the suit house. The respondent No. 2 being owner of the suit house, is entitled to get vacated the same from the appellant by way of mandatory injunction. I affirm the findings of the lower court on all the issues. The learned lower court has rightly dismissed the suit of the plaintiff appellant and has rightly decreed the suit of the respondents for mandatory injunction directing the appellant to vacate the suit premises."
6. Aggrieved by the judgment and decree of the first appellate Court, the present appeal.
7. I have heard the counsel for the parties and with their assistance have gone through the record of this case.
8. The case set up by the plaintiff before the trial court was that he was in adverse possession. It is the common case of the parties that the house in dispute was purchased in the name of defendant No. 2. There is a close relationship between the plaintiff and defendant No. 1. They are real brothers. Defendant No. 2 is wife of defendant No. 1. The case of the defendants is that the possession which was given to the plaintiff was per- missive and for the specific purpose to perform the marriage of his daughter. In view of the close proximity of relationship between the plaintiff and defendant No. 1, it has to be proved by the plaintiff by leading sufficient evidence that his possession was hostile, adverse and to the knowledge of the defendants. Both the courts have rightly come to the conclusion that the plaintiff has failed to establish his adverse possession. The submission which was raised by the counsel for the appellant before me is that the courts below committed an error when a decree of possession in favour of the defendants and against the plaintiff was granted. The counsel submitted that it was obligatory on the part of the defendants to file a regular suit for possession by paying ad valorem court fee on the market value of the property and therefore, the relief cannot be granted to the defendants in the shape of mandatory injunction.
9. I do not subscribe the argument of the counsel for the appellant because a decree for mandatory injunction can always be passed against a licensee whose possession is permissive. It is not necessary on the part of the licensor to file a regular suit for possession by paying the court fee on the market value of the property. Once the possession of the plaintiff was held to be permissive, the counter claim has been rightly decreed by the courts below.
No merit. Dismissed.