Himachal Pradesh High Court
Rajinder Singh vs Dalbir Singh And Ors. on 8 January, 1997
Equivalent citations: AIR1998HP43
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The present regular second appeal has been directed against the judgment and decree dated 19-9-1988 of the learned District Judge, Una reversing the judgment and decree dated 28-8-1984 of the learned Sub-Judge 1st Class, Amb.
2. The appellant and proforma respondents 18 to 20 before this Court are the legal heirs of the original plaintiff Surarn Singh. They are being referred to as the plaintiffs hereinafter.
3. The deceased-plaintiff filed a suit for declaration to the effect that he is the owner and in possession of the land detailed in the plaint and jumabandi for the year 1970-71 and hereinafter referred to as the land in dispute. He also prayed for permanent injunction as a consequential relief for restraining the defendants from interfering in any manner with his possession over the land in dispute.
4. It was averred that the land in dispute was originally owned and possessed by Bassia son of Gulabu, Rajput, of village Thathal along with S/Shri Ghuman and Nand Lal sons of Shiv Dayal. The said Bassia sold 155 kanals 12 marlas 6 Sarasahis of land by means of a registered sale deed for a consideration of Rs. 1000/- in the year 1940 in favour of S/Shri Harnam Singh, Munshi Ram and Tilak Chand. A suit for pre-emption of such sale was filed by the deceased-plaintiff Suram Singh being Civil Suit No. 6 of 1941 on 28-7-1941. The said suit was decreed on 31-1-1942 and a decree for possession of the said land, that is, the land in dispute by way of pre-emption on payment of Rs. 800/- was passed in favour of the deceased-plaintiff. The pre-emption amount was required to be deposited on or before 1-4-1942. 1/5th of the pre-emption amount, that is, Rs. 200/- was deposited by the deceased-plaintiff at the time of the suit, while the remaining amount of Rs. 600/- was deposited on 31-3-1942. The entire amount of Rs. 800/- was received by the vendees from the court and the possession of the land was delivered to the plaintiff Suram Singh. Since then he has been coming in possession of the land in dispute as owner thereof. The defendants are the successors-in-interest of the abovenamed vendees. They, on the basis of the wrong entries in their favour, have got 96 kanals of Land out of the land in dispute partitioned, while the remaining land continues to be recorded as joint. The defendants have since started interfering with the possession of the plaintiff over the land in dispute.
5. The defendants while resisting the suit dispute the maintainability of the suit. It was averred that the plaintiff is neither the owner nor in possession of the land in dispute. The preemption suit stood dismissed since the plaintiff failed to deposit/pay the pre-emption amount within the stipulated period. Partition has wrongly taken place. Jurisdiction of Civil Court was also questioned.
6. On the pleadings of the parties, following issues were framed by the learned trial Court :--
1. Whether the plaintiff is owner in possession of the land regarding the share of Bassia by way of pre-emption decree as alleged ? OPP.
2. Whether the Civil Court has no jurisdiction as alleged ? OPD.
3. Whether the suit is riot maintainable in the present form? OPD.
4. Whether the plaintiff has no cause of action? OPD.
5. Whether the suit is within time? OPD.
6. Relief.
7. The learned trial Court under Issue No. 1 came to the conclusion that deceased-plaintiff was the owner of the land in dispute. He was, however, held not to be in possession thereof. Issue Nos. 2 to 5 were decided against the defendants. Consequent upon such findings, the suit was partly decreed to the extent that the plaintiff was declared to be the owner of the land in dispute. The relief of injunction was, however, refused since the plaintiff was not found to be in possession of the land in dispute.
8. The defendants, feeling aggrieved by and being dissatisfied with the judgment and decree of the learned trial Court, went up in appeal before the learned District Judge, Una. Vide the impugned judgment and decree dated 19-9-1988, the appeal was allowed, the judgment and decree of the learned trial Court were set aside. The defendants were held to have become the owners of the land in dispute by virtue of their adverse possession.
9. While assailing the findings of the learned first appellate Court, it has been contended on behalf of the plaintiff that in the absence of a specific plea with regard to adverse possession having been raised by the defendants, the first appellate Court has committed a grave error in holding that the defendants have acquired title to the land in dispute by way of prescription. Further the learned first appellate Court has erred in holding the suit to be barred by time by applying a wrong provision of the Limitation Act. The evidence coming on record has been misconstrued and the same has not been appreciated in its right perspective.
10. I have heard the learned counsel for the parties and have also gone through the record of the case.
11. At the very outset it may be stated that the findings of the learned first appellate Court holding the defendants to have become the owners of the land in dispute by way of adverse possession are wrong and cannot be sustained.
12. Admittedly no plea with regard to adverse possession of the land in dispute has been raised by the defendants. Their pure and simple case as made out in the written statement is that they are coming in possession of the land in dispute as successors of the vendees. Even the learned District Judge has observed that the defendants have not taken the plea that they are in adverse possession.
13. It is well established principle of law that adverse possession is a question of fact which must be specifically pleaded and proved.
14. The learned District Judge has misconstrued the ratio laid down in Mulkh Raj v. Des Raj, 1974 Cur LJ 575 (Punj & Har). In the said case there was a specific plea with regard to adverse possession. What was held was that it was not necessary that a plea of adverse possession should be raised against a specific person. A party could well assert that it had been in actual possession of the disputed property for the statutory period of 12 years without disturbance from outside source.
15. In the present case, in the absence of specific plea with regard to adverse possession, the defendants cannot be said to have acquired title qua the land in dispute by prescription. Possession for howsoever long a period cannot ripen into ownership unless and until there is assertion of hostile title.
16. It is admitted case of the parties that the predecessors-in-interest of the defendants had purchased the land in dispute from Bassia out of the joint Khata of which S/Shri Ghuman and Nand Lal were the other co-sharers. The deceased-plaintiff was the son of Nand Lal. He in the capacity of being a co-sharer in the joint Khata had filed a suit for the pre-emption on the said sale made by Bassia. The suit was decreed on 31-3-1942. The pre-emption amount of Rs. 800/- was directed to be deposited on or before 1-4-1942, failing which the suit was to be deemed to have been dismissed.
17. According to the defendants since the deceased-plaintiff Suram Singh failed to deposit the pre-emption amount within the stipulated period, the suit stood dismissed and they continued in possession as owners thereof.
18. PW 2 Amrit Lal, Record Keeper of the office of Deputy Commissioner, Una, on the basis of summoned record, was stated that the preemption amount was deposited on 31-3-1942 and the same stood paid to the vendees on 8-6-1942. The witness has further stated that the possession of the land subject-matter of sale, however, was not delivered in execution of the decree to the plaintiff and that the execution application was dismissed as not satisfied.
19. An objection was raised on behalf of the defendants that since the deceased-plaintiff Suram Singh could not get possession, he derived no title in the land in dispute by way of pre-emption. This objection raised on behalf of the defendants has no merit and the same has to be rejected.
20. Rule 14(1) of Order 20, Code of Civil Procedure, provides:--
" 14.1 Where the Court decrees a claim to preemption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall:--
(a) specify a day on or before which the purchase-money shall be so paid, and
(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accured from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
21. Dealing with the question as to when the title to the property accrues to the pre-emptor under Order 20, Rule 14(1), Code of Civil Procedure, the Apex Court in Hazari v. Neki (dead) by his legal representatives, AIR 1968 SC 1205, has held that the pre-emptor's title to the property accrues from the date of payment of the pre-emption amount into Court and not from the date of the sale or from the date of the decree.
22. A Full Bench of the Punjab High Court in Ganga Ram v. Shiv Lal, AIR 1964 Punj 260, has held that title to the pre-empted property passes to a pre-emptor under a pre-emption decree on deposit of the purchase-money in terms of the decree and is deemed to pass to him from of the deposit. Physical substitution of the emptor for the vendee is not essential under Order 20, Rule 14(1), Code of Civil Procedure for the passing of the title. The rule does not cost a duty upon the plaintiff to obtain possess to of the property as did Section 214 of the Code of 1882, rather it says to the contrary that it is the duty of the defendant to deliver up possession of the property to the plaintiff-pre-emptor.
23. In the present case, as stated above, the pre-emption amount stood deposited by the plaintiff on 31-12-1942. Therefore, title to the land in dispute passed to him on with effect from that date.
24. In so far as possession is concerned, admittedly no possession was either obtained by the plaintiff in execution of the decree nor such possession was delivered by the predecessors-in-interest of the defendants. In fact, in the present case no actual possession was required to be obtained or delivered. The land in dispute formed part of a joint Khata of which the plaintiff was one of the co-sharers. The share of the vendor. Bassia was never separated by way of partition before the sale by him. He had sold his individual share in the joint Khata. Therefore, being a co-sharer the plaintiff was in possession of the land in dispute along with other co-sharers. He was never ousted from such joint possession. Consequent upon pre-emption decree having been proved in his favour only the name of the vendees were required to be deleted from the revenue records. Therefore, the two Courts below have wrongly held the plaintiff to be not in possession of the land in dispute.
25. The title of the plaintiff qua the land in dispute came to be denied by the defendants when they moved the revenue authorities for partition of the joint Khata and the present suit having been filed within three years thereafter is within time. The findings of the learned first appellate Court which are to the contrary are bad and have to be set aside.
26. Consequently the present appeal is allowed. The impugned judgment and decree of the first appellate Court are set aside and the plaintiffs are declared to be the owners and in possession of the land in dispute. The defendants are further restrained by way of permanent injunction from interfering with the ownership and possession of the plaintiffs qua the land in dispute. No orders as to costs.