Himachal Pradesh High Court
Kamal Raj & Another vs Mehar Chand (Deceased) Through on 5 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 227 of 2004 alongwith RSA No. 122 of 2019 .
Date of Decision: 05th October 2023.
RSA No. 227 of 2004 Kamal Raj & another ....Appellants of Versus Mehar Chand (deceased) through his Legal representatives & others ....Respondents rt RSA No. 122 of 2019 Kamal Raj & another ...Appellants Versus Mehar Chand (deceased) through his Legal representatives & another ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes
RSA No. 227 of 2004
For the Appellants : Mr. Ashok Sharma, Senior Advocate,
with Ms. Anubhuti Sharma,
Advocate.
__________________
Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 2 For the respondents No. : Mr. R.K.Sharma, Senior Advocate, 1(a) to 1(h) with Ms. Anita Tegta, Advocate.
RSA No. 122 of 2019.
For the Appellants : Mr. Ashok Sharma, Senior Advocate,
with Ms. Anubhuti Sharma,
Advocate.
For the respondents None though served
of
Rakesh Kainthla,Judge (Oral).
The present appeals are directed against the judgment rt and decree dated 22nd December 2003, passed by the learned Additional District Judge (I), Hamirpur, H.P. vide which the appeal filed by the appellants (plaintiffs before the learned Trial Court) was dismissed and judgment and decree passed by the same court vide which the cross objections/appeal bearing No. 16/98-RBT. 12/03, filed by the respondent (defendant before the learned Trial Court) were dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeals are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking possession by demolition of the shed ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 3 measuring 15.98 sq. meters (47' x 34' ) built on the land comprised in Khata No. 23, Khatauni No. 74, Khasra No. 173/1 .
(carved out of Khasra No.173 measuring 52.50 sq. meters) and demolition of retaining wall (10 meter x 1 meter), comprised in Khata No. 23, Khatauni No. 74, Khasra No.175 (i.e. Western side of Khasra No. 175) measuring 60.65 sq. meters, as per the Jamabandi of for the year 1981-82, situated in Tika Bhater Kalan, Up Mahal, Tappa, Bajuri, Tehsil & District Hamirpur, H.P. (hereinafter rt referred to as the suit land). It was pleaded that the plaintiffs are owners of the suit land. The defendant is a trespasser and has nothing to do with the suit land. His land is situated adjacent to the suit land. The defendant in the month of January, 1988 wrongly and illegally raised the construction of a shed measuring 47' x 34' over the suit land without the consent of the plaintiffs.
The plaintiffs requested the defendant repeatedly not to raise construction but in vain. The defendant also raised the construction of a retaining wall measuring 10 x 1 meter over the suit land without the consent of the plaintiffs. The plaintiffs applied for demarcation before the Tehsildar in case No.175/88.
The Kanungo demarcated the suit land on 25th July 1980 and found that the defendant had encroached upon the suit land by ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 4 constructing a shed measuring 15.98 sq. meters and a retaining wall measuring 10 x 1 meters. The plaintiffs requested the .
defendant to demolish the construction but in vain. Hence, the suit was filed for seeking possession as mentioned above.
3. The suit was opposed by filing a written statement taking preliminary objections regarding the suit being bad for of non-joinder of other co-owners, the suit having not been properly valued for the purpose of Court fee and jurisdiction, the rt suit being barred by limitation, the plaintiffs being estopped by their acts and conduct to file the present suit, the suit land having not been properly described, tatima having not been properly prepared and the defendant having become the owner of the suit land by way of adverse possession. The contents of the plaint were denied on merits.It was asserted that the plaintiffs are not owners of the suit land. The defendant raised construction and planted an orchard of Galgal, Lemon, Akhrot etc. on the suit land.
The plaintiffs and other co-owners never objected to the possession of the defendant. The possession of the defendant is continuous and hostile from its inception and he has become owner by way of adverse possession. The Special Power of ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 5 Attorney of the plaintiff is Kanungo and he obtained a wrong demarcation. The suit was filed without any basis. Hence, it was .
prayed that the suit be dismissed.
4. No replication was filed.
5. The learned Trial framed the following issues on 08.02.1991:
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1. Whether the plaintiffs are entitled for possession of suit land after demolition of structure therefrom, as alleged? OPP rt
2. Whether the suit is bad for non-joinder of necessary parties? OPD.
3. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction, if so, what is proper valuation? OPD.
4. Whether the suit is not within time? OPD.
5. Whether the plaintiffs are estopped from filing the suit by their acts and conduct? OPD.
6. Whether the defendant has become owner of the suit land by way of adverse possession? OPD.
7. Whether the suit property is not properly specified, if so, its effect? OPD.
8. Relief.
6. The parties were called upon to produce their evidence and the plaintiff examined Bachitter Singh (PW-1), Om Parkash (PW-2), Swarni Devi (PW-3), Dhian Singh (PW-4) and Desh Raj ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 6 (PW-5). The defendant examined himself (DW-1), Budhi Singh (DW-2), Parkash Chand (DW-3), Om Parkash (DW-4), Hari Chand .
(DW-5) and P.C.Dogra (DW-5).
7. The learned Trial Court held that the report of the demarcation was not satisfactory and Tatima did not depict the factual position on the spot. The plea of the defendant regarding of the adverse possession was also not established because the defendant had neither pleaded nor proved the period when his rt possession became adverse to the interest of the plaintiffs. The plaintiffs are recorded owners in possession in the revenue record.
The other co-sharers have transferred their shares in favour of the plaintiffs and the suit was not bad for the non-joinder of necessary parties. The suit was properly valued for the purpose of Court fee and jurisdiction. Hence, issues no.1 to 7 were answered in negative and the suit of the plaintiffs was dismissed.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiffs filed an appeal, which was decided by the learned Additional District Judge (I), Hamirpur, District Hamirpur, H.P. Learned First Appellate Court concurred with the findings of the learned Trial Court that the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 7 demarcation was not proper. The plea of the defendant that he had become owner by way of adverse possession was not proved.
.
The date of dispossession was not established. The proper description of the encroachment was not given. It was doubtful whether the previous owners were in possession at the time of the sale of the suit land. Any construction raised by one party over the of land of another, which is never objected to by any person will prevent him from seeking the demolition on the principle of rt acquiescence. There was no infirmity in the judgment and decree passed by the learned Trial Court; hence, the appeal was dismissed.
9. The defendant was also aggrieved by the findings of the learned Trial Court, recorded against him and he also preferred cross-objections, which were also decided by the learned Additional District Judge (I), Hamirpur. Learned First Appellate Court held that the suit was properly valued for the purpose of Court fee and jurisdiction. Learned Trial Court had rightly held that the suit was filed beyond the period of limitation.
The plaintiffs are not entitled to a decree for possession on the principle of acquiescence but only for compensation as per the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 8 judgment of the High Court of Punjab and Haryana in case titled Food Corporation of India and another vs Dayal Singh 1991 P.L.J. 425.
.
The defendant had failed to prove the adverse possession by leading cogent and convincing evidence. The land was not properly identified because the demarcation was not conducted properly. Hence, the findings regarding issues no. 5 & 7 were not of sustainable. Curiously, the learned First Appellate Court held in para 11 of its judgment that point No.1 was partly decided in favour rt of the objector and against the appellant but it dismissed the cross objections/appeal.
10. Feeling aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, a Civil Appeal bearing No. 227 of 2004 was filed asserting that the judgments and decrees passed by the learned Courts below are against the law and facts. The learned Courts below ignored the duly proved facts. The defendant had not denied the encroachment and the findings of the learned Courts below are contradictory and not sustainable. The plea of adverse possession was not proved;
therefore, the learned Courts below erred in dismissing the suit.
The defendant has no right over the suit land. Hence, in these ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 9 circumstances, the suit should have been decreed for possession.
The demarcation report proved the encroachment. The learned .
Courts below did not appreciate the pleadings of the parties and considered the minor contradictions appearing in the statements of the witnesses. Bachitter Singh, the General Power of Attorney and father of the plaintiffs was well conversant with the facts of of the case. He was a competent witness; therefore, it was prayed that the present appeal be allowed and the judgments and decrees rt passed by the learned Trial Courts below be set aside.
11. The appeal (RSA No. 227 of 2004) was admitted on the following substantial question of law framed on 02.06.2004:-
Whether, as the defendant/respondent has admitted the factum of encroachment over the suit land in para 5 of the Preliminary Objections in the written statement, the findings of the learned Court below that the appellants have not been able to prove the encroachment are illegal and liable to be set aside?
12. No appeal was filed against the judgment/order passed in the cross-objections. The defendant objected to the maintainability of the present appeal and this Court passed an order on 18.12.2018, holding that the findings on issues no. 5 and 7 were decided in favour of the defendants. In these circumstances, ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 10 the cross-objections were not to be dismissed and were to be partly allowed. The appellants-plaintiffs could not question the .
findings as the appeal does not lie against the finding but a decree.
Hence, this Court set aside the judgment passed in Civil Appeal No. 16 of 1998 and modified it to the extent that the appeal stood partly allowed.In view of issues no. 5 and 7 being decided in favour of of the defendants, 90 days were granted to the plaintiffs to file an appeal.
13. rt The plaintiffs filed an appeal (RSA No. 122 of 2019) against the order passed in Civil Appeal No. 16 of 1998 read with the order passed by this Court on 18th December 2018. It was asserted that the learned Courts below ignored the fact that the defendant had encroached upon the suit land by constructing a shed. The defendant did not deny the encroachment in the written statement. The ratio of judgment cited by the learned First Appellate Court does not apply to the present case. The plea of adverse possession presupposes the title of the person against whom the plea of adverse possession has been taken. The essential ingredients of estoppel and acquiescence are missing in the present case. The findings are based upon the surmises and ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 11 conjectures; therefore, it was prayed that the present appeal be allowed and the judgment and decree passed in Civil Appeal No. 16 .
of 1998 be set aside.
14. This appeal (RSA No. 122 of 2019) was admitted on the following substantial question of law, framed on 02.04.2022:-
Whether the learned First Appellate Court has misread, of misconstrued and misinterpreted the cogent evidence and material on record thus resulting into miscarriage of justice?
15. rt I have heard Mr. Ashok Sharma, learned Senior Advocate assisted by Ms. Anubhuti Sharma, Advocate, and Mr. R.K.Sharma, learned Senior Advocate, assisted by Ms. Anita Tegta, Advocate, for legal representatives of original defendants respondents no.1 (a) to 1 (h).
16. Mr. Ashok Sharma, learned Senior Counsel for the appellants submitted that the learned Courts below erred in dismissing the suit. The defendant had taken a plea of adverse possession, which means that the title of the plaintiffs was not in dispute; therefore, there was no question of the identification. The plea of the defendant that he had become the owner by way of adverse possession was not proved and the Courts should have decreed the suit. The suit based on the title cannot be defeated by ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 12 the limitation unless the adverse possession is proved. Since no adverse possession was proved in the present case; therefore, the .
learned Courts below erred in dismissing the suit. The essential ingredients of estoppel were not pleaded or proved and the learned First Appellate Court erred in holding that the suit was barred by the principle of acquiescence. The judgments and of decrees passed by the learned Courts below are contrary to the settled law laid down by this Court and the Hon'ble Supreme rt Court; hence, the same are perverse and this Court can interfere with the judgments and decrees passed by the learned Courts below.
17. Mr. R.K. Sharma, learned counsel for the legal representatives of the original defendant submitted that the order passed by this Court is open to challenge because the appeal has been filed against the order passed by the learned First Appellate Court read with the order of this Court. This Court has wide powers but those powers are circumscribed by the provisions of the Code of Civil Procedure. It was not permissible for this Court to interfere with an order, which was not assailed before this Court; therefore, the order dated 18.12.2018 is a nullity and will not ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 13 confer any right upon the plaintiffs to file an appeal. The plaintiffs had filed RSA No. 122 of 2019, after the period of .
limitation and, therefore, the same is liable to be dismissed on this ground alone. The dismissal of RSA No.122 of 2019, will give finality to the findings recorded in Civil Appeal No. 16 of 1998 by the learned First Appellate Court and the present appeal is liable of to be dismissed as being barred by the principle of resjudicata.
Hence, he prayed that the appeal be dismissed as barred by the rt principal of resjudicata.
18. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Maintainability of the Appeal:
19. Before adverting to the substantial question of law formulated by the Court, it is necessary to deal with the preliminary objection that the Court did not have jurisdiction to modify the order passed by the learned First Appellate Court in cross-objections, therefore, the order passed by this Court is a nullity, which will not confer any right upon the plaintiffs to file an appeal. It is undisputed that the order passed by this Court was ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 14 challenged before the Hon'ble Supreme Court of India in Special Leave Petition (Civil) No. 18104 of 2019 and the appeal was .
dismissed by the Hon'ble Supreme Court of India on 29.07.2019.
Therefore, the order has attained finality as far as this Court is concerned. It was laid down by the Hon'ble Supreme Court in Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787: 2004 SCC of OnLine SC 1623, that the principle of res judicata applies to the different stages of the same suit. Once a question is decided by a rt Court at one stage of the suit, it constitutes res judicata in subsequent stages and cannot be questioned at the subsequent stage. It was observed at page 796:
"18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941 :
(1960) 3 SCR 590] and Prahlad Singh v. Col. Sukhdev Singh [(1987) 1 SCC 727] .)
19. In Y.B. Patil [(1976) 4 SCC 66] it was held: (SCC p. 68, para 4) "4. ... It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stages of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."
20. In Vijayabai [(1999) 1 SCC 693] it was held: (SCC p. 701, para 13) ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 15 "13. We find in the present case the Tahsildar reopened the very question which finally stood concluded viz. whether Respondent 1 was or was not the tenant of the suit land. He further erroneously entered into a new .
premise of reopening the question of the validity of the compromise which could have been an issue if at all in appeal or revision by holding that the compromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute?"
21. Yet again in Hope Plantations Ltd. [(1999) 5 SCC 590] this of Court laid down the law in the following terms: (SCC p. 604, para 17) "17. ... One important consideration of public policy is that the decisions pronounced by courts of competent rt jurisdiction should be final unless they are modified or reversed by appellate authorities, and the other principle is that no one should be made to face the same kind of litigation twice over because such a process would be contrary to considerations of fair play and justice."
22. It was further held: (SCC p. 611, para 31) "31. Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various courts on these subjects. As noted above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is a continuous cause of action. The parties then may not be bound by the determination made earlier if, in the meanwhile, the law has changed or has been interpreted differently by a higher forum. But that situation does not exist here. Principles of constructive res judicata apply with full force. It is the subsequent stage of the same ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 16 proceedings. If we refer to Order 47 of the Code (Explanation to Rule 1) review is not permissible on the ground 'that the decision on a question of law on which the .
judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment'."
20. This position was reiterated in Ajay Mohan v. H.N. Rai, of (2008) 2 SCC 507: 2007 SCC OnLine SC 1518; wherein it was observed:
rt
19. It is a trite law that the principles of res judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi [AIR 1960 SC 941] , Arjun Singh v.
Mohindra Kumar [AIR 1964 SC 993] , C.V. Rajendran v. N.M. Muhammed Kunhi [(2002) 7 SCC 447], Ishwar Dutt v. Land Acquisition Collector [(2005) 7 SCC 190] and Bhanu Kumar Jain v. Archana Kumar[(2005) 1 SCC 787] .)
21. Therefore, in view of the binding precedents of the Hon'ble Apex Court, it will not be permissible for the respondent to question the order passed by this Court at any earlier stage of proceedings and the submission that the order is bad having been passed without any jurisdiction cannot be decided at this stage.
22. The submission that in the absence of any appeal assailing the findings recorded in Civil Suit No. 16 of 1998, the present appeal will be barred by the principle of res judicata is also ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 17 not acceptable. It is undisputed that the learned First Appellate Court had dismissed the cross-objections even after recording .
findings in favour of the defendant. In State of A.P. v. B. Ranga Reddy, (2020) 15 SCC 681 three suits were filed before the Trial Court against the State Government. The State Government contended that the land in the three suits formed part of one of Survey number owned by it. Two suits were dismissed but one was decreed. Findings were recorded against the Government in rt two suits which were dismissed. The plaintiffs filed appeals against the dismissal of their suit and the State Government filed an appeal against the decree of the suit. It was contended in the suit filed by the State that findings against it had attained finality in the suits dismissed against it as no appeals were filed in these suits. The objection was upheld. Reversing the judgments, it was laid down by the Hon'ble Supreme Court that the principle of res judicata does not apply to the findings when the decree is under challenge. A party in whose favour the decree is passed is not obliged to file any appeal against the findings and failure to challenge the findings will not constitute res judicata. It was observed:-
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 18"33. Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the .
first and second suits will not operate as res judicata as such findings are subjectmatter of challenge in the appeals filed by the plaintiffs in their respective suits. All three suits have been decided together and the three appeals are pending against such judgments and decrees. Therefore, it cannot be said that the first and the second suits are the former suits as the decree passed therein has not attained of finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue 1 in the first and second suit even after the amendment of Order 41 Rule 22 of the Code.
xxxxx rt
37. We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendant State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order 41 Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order 41 Rule 33 of the Code, the appellate court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.
38 [Ed.: Para 38 corrected vide Official Corrigendum No. F.3/Ed.B.J./85/2019 dated 26-9-2019.]. As per the facts on ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 19 record, Original Suits Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the first appellate court. Therefore, such decree including the finding on Issue 1 has not attained finality as .
the appellate court is seized of the entire controversy including the findings of fact on Issue 1. The defendants have a right to dispute such findings by filing cross- objections under Order 41 Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the appellate court under Order 41 Rule 33 of the Code.
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39. The decree is of dismissal of the suit, whereas, the reason for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with rt Explanation I, the issue in a former suit will operate as res judicata only if such an issue is raised in a subsequent suit. Since, the issue of title has not attained finality; therefore, it is not a former suit to which there can be any application of Section 11."
23. In the present case, the learned First Appellate Court had recorded the findings against the plaintiffs and in favour of the defendant but ultimately the cross-objections were dismissed;
therefore, there was no decree which could have been assailed by filing an appeal.
24. It was submitted that it was permissible to file an appeal against the findings even if the decree was of dismissal.
Reliance was placed upon the following observations of the Hon'ble Supreme Court in Rajni Rani v. Khairati Lal, (2015) 2 SCC 682:
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 20"16. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A court may draw up a formal decree or may not, but if by virtue of the order of the court, .
the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counterclaim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counterclaim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the of challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee. It could not have been unsettled by the High Court in the exercise of the power under Article 227 of the rt Constitution of India. Ergo, the order passed by the High Court is indefensible."
25. In Rajni Rani's case (supra), the defendants filed a counterclaim in a suit filed by the plaintiff seeking a declaration.
An application was filed that the counterclaim was barred by the provisions of Order 2 Rule 2 CPC. This application was allowed by the learned Trial Judge and the counterclaim was dismissed. The dismissal was challenged in Civil Revision preferred before the High Court. The High Court set aside the order passed by the learned Trial Judge. The order of the High Court was assailed before the Hon'ble Supreme Court. It was held, in these circumstances, that there was a formal adjudication of the dispute between the parties and an appeal was to be filed. The order could ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 21 not have been set aside in a revision petition or in the exercise of powers under Article 227 of the Constitution of India.
.
26. This judgment was concerned with the rights of the defendant to file an appeal whose counterclaim was dismissed.
This judgment does not say that the plaintiff could have filed an appeal. Since in the present case, the cross objections were of dismissed; hence the right to file an appeal was available to the defendant and not to the plaintiffs.
27. rt Thus, the judgment does not deal with the fact situation prevalent in the present case. It was laid down by the Hon'ble Supreme Court in Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75: 2004 SCC (Cri) 662: 2004 SCC OnLine SC 216 that the judgment has to be read in the context of the facts of the case. The Judges interpret the statute but their judgments cannot be interpreted as statutes. It was observed at page 83:
"15....Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 22 become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words .
are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord Macdermott observed : (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to of detract from the great weight to be given to the language actually used by that most distinguished Judge...."
16. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294:
1970 AC 1004 : (1970) 2 WLR 1140 (HL)] Lord Reid said (at All rt ER p. 297g-h), "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed:"One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board [(1972) 2 WLR 537 : (1972) 1 All ER 749: 1972 AC 877 (HL)] Lord Morris said : (All ER p. 761c) There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
18. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus : (Abdul Kayoom v. CIT [AIR 1962 SC 680], AIR p. 688, para 19) ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 23 "19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid .
the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** "Precedent should be followed only so far as it marks of the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
28. rt It was laid down by this Court in Sher Chand vs. Pritam Chand 1997 (1) Shim.L.C. 300 that an appeal does not lie against the findings when the suit is dismissed. It was observed:
6. In Madras Corporation v P. R. Ramachandriah, AIR 1977 Mad 25, a Division Bench of the said court held that when a party is not aggrieved by a decree, it was not competent to appeal against the decree on the ground that an issue is found against him Similarly in K. L. Bapuji v. State, AIR 1977 AP 427, a Division Bench of Andhra Pradesh High Court has also taken the similar view that if all the defendants have common interest in obtaining the dismissal of the suit filed by the plaintiff and if for dismissing the suit it is not necessary to decide the controversy between the defendants inter se, the findings recorded on the controversy between the defendants themselves would not be res-judicata No appeal in the aforesaid circumstances, when the entire decree is in favour of the defendants, would lie against the findings at the instance of the defendant aggrieved by it. To a similar ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 24 effect is a Full Bench judgment of Patna High Court reported in Arjun Singh v. 71 D Ghosh, AIR 1974 Pat I, where amongst other things, it was observed that appeal would only be maintainable if the findings on the issues decided .
against the party appealing would operate as res-judicata Since the findings recorded against the appellants on issues in the suit out of which this appeal has arisen do operate as res judicata, therefore, this judgment squarely covers the case of the plaintiff regarding the maintainability of the appeal. No decision to the contrary has been brought to the notice of this Court by the learned Counsel for the of appellants.
7. Now coming to the facts of the case, admittedly the suit of the plaintiff was dismissed and further there is no executable decree in his favour wherefrom the plaintiff can rt derive any benefit against the defendants. The appeal, if any, in the facts of the present case could be maintained by the plaintiff and not by the defendants as filed by them before the lower appellate Court.
From whatever angle the case may be viewed, the fact remains that the appeal by the appellants before the lower appellate Court was incompetent and consequently the present appeal is also not maintainable.
29. Similar is the judgement of the Hon'ble Supreme Court in Banarsi v. Ram Phal, (2003) 9 SCC 606: 2003 SCC OnLine SC 229, wherein it was observed:
8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal.::: Downloaded on - 12/10/2023 20:33:15 :::CIS 25
(See Phoolchand v. Gopal Lal [AIR 1967 SC 1470 : (1967) 3 SCR 153], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] .) No appeal lies against a mere finding. It is significant to .
note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.
30. In the present case, the learned First Appellate Court passed an order of dismissal; therefore, the decree was one of dismissal and could not have been appealed by a person in whose of favour the decree was passed because an appeal lies against a decree and not against the findings. Hence, the submission that rt the plaintiffs should have filed an appeal against the judgment in the cross objections/appeal is not acceptable.
31. It was laid down by this Court in Charan Dass v. Thakur Dass Mast Ram, 1972 SCC OnLine HP 18: AIR 1973 HP 22 that the principle of res judicata cannot be applied to a successful party as it had no right to file the appeal. It was observed at page 24:
8. The learned counsel referred to AIR 1922 PC 241 (Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy). It was a case wherein a tenant was sought to be ejected, and he had taken two pleas 11) that he had acquired occupancy right, and (2) that the suit was premature. The trial Court held that there was no occupancy right, but the suit was premature. The High. Court affirmed the trial Court judgment. Subsequently, the zamindar brought another suit for possession over the land. The tenant again claimed occupancy rights. It was held that the question regarding occupancy rights was not res judicata in the subsequent ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 26 suit for the tenant, having succeeded on the other plea, had no occasion to go further as to the finding against him. A similar situation has arisen in the present case because the petitioner-tenant had no occasion to go further from the .
finding of the learned appellate authority and it was the landlords who preferred revision before the High Court.
9. In Debi Dayal v. Annu Singh. (AIR 1943 Oudh 231) a similar proposition was held to be correct. The principle of constructive res judicata applies only to a case in which the party against whom it is sought to apply was unsuccessful in the previous suit or proceeding. It cannot be applied of against a person who in the previous suit or proceeding had been successful. In the instant case, the petitioner-tenant had been successful in the previous proceeding and the plea of constructive res judicata cannot be availed against him.
rt Therefore, in my opinion, the plea of constructive res judicata was not at all open in favour of the landlords. The petitioner-tenant could not be debarred from raising the two specific pleas whereby he sought to defeat the claim of the landlords for ejectment.
32. Similar is the judgment in Deva Ram v. Ishwar Chand, (1995) 6 SCC 733, wherein it was held at page 740:
25. Let us now consider the plea regarding the effect of an adverse finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decided.
26. It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear an appeal from the decision of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the 'decree' and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code.
Similarly, an appeal lies against an 'order' under Section ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 27 104 read with Order 43 Rule 1 of the Civil Procedure Code where the 'orders' against which the appeal would lie have been enumerated. Unless there is an 'order' as defined in Section 2(14) and unless that 'order' falls within the list of .
'orders' indicated in Order 43, an appeal would not lie.
27. Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court.
of (See Ganga Baiv. Vijay Kumar [(1974) 2 SCC 393 : (1974) 3 SCR 882] .)
28. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy[AIR 1922 PC 241: 48 IA 49, 55], it was observed as under:
rt "Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them: but it is the finding of a court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have now been able to perform."
29. A similar view was also expressed in an earlier decision in Run Bahadur Singh v. Lucho Koer[ILR (1885) 11 Cal 301: 12 IA 23 (PC)].
30. The Oudh Chief Court in Pateshwari Din v. Mahant Sarju Dass[AIR 1938 Oudh 18: 1937 OWN 1127] held that where a decree in the previous suit is wholly in favour of a person and gives him all the reliefs sought by him, he has no right of appeal against the decree so as to enable him to contest any adverse finding against him in such suit. Hence, such an adverse finding cannot operate as res judicata as against him in a subsequent suit.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 2831. The High Court of Andhra Pradesh in Bansi Lal Ratwav. Laxminarayan[(1969) 2 An WR 246] and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh[AIR 1974 Pat 1: 1974 BLJR 101] have taken the view .
that an appeal would not lie against mere adverse finding unless such finding would constitute res judicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the present case nor are we concerned with the earlier aspect as the plea of res judicata having not been raised in the written statement, the appellant cannot be permitted to raise the plea here.
of
32. In view of what we have held above, the points canvassed before us are decided against the appellants.
33. It was noticed by Hon'ble Supreme Court in B. Ranga rt Reddy's case (supra), that one of the tests to determine whether the finding will constitute resjudicata or not is whether an aggrieved party could challenge it by way of appeal or not. When there is no right of appeal, the finding does not constitute resjudicata. It was observed:
30. In Ramesh Chandra[Ramesh Chandra v. Shiv Charan Dass, 1990 Supp SCC 633: AIR 1991 SC 264], the Court held that one of the tests to ascertain if a finding operates as res judicata is that the party aggrieved could challenge it by way of an appeal. The Court held as under: (SCC p. 635, para 4) "4. One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against Defendants 2 and 3 they could not challenge it by way of appeal. Even assuming that Defendant 1 could challenge the finding that the liability of rent was of Defendants 2 and 3 as they were in possession, he did not file any written statement in the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 29 trial court raising any dispute between himself and Defendants 2 and 3. There was thus no occasion for the appellate court to make the observation when there was neither pleading nor evidence."
.
34. Therefore, the findings recorded in Civil Appeal No. 16 of 1998 will not constitute the resjudicata against the plaintiffs who had no right of appeal.
35. Thus, even if the Court had not interfered with the of order passed by the learned First Appellate Court in Civil Appeal No. 16 of 1998, the same would not have constituted a resjudicata rt in view of the judgment of Hon'ble Supreme Court and the plea that RSA No. 227 of 2004 was barred by the principle of res judicata, in view of the findings recorded in Civil Appeal No. 16 of 1998 is not acceptable. Thus the objection raised regarding the maintainability of the appeal does not survive and is rejected.
36. The whole confusion in the present case arose because the learned First Appellate Court decided the appeal and the cross-objections separately. It was laid down by Delhi High Court in Krishan Gopal v. Haji Mohammad, 1968 SCC OnLine Del 13 :
(1968) 4 DLT 371: AIR 1969 Del 126 that the appeal and the cross objections are to be decided together. It was observed:::: Downloaded on - 12/10/2023 20:33:15 :::CIS 30
7. Where a decree is partly against one suitor and partly against another, one of such parties being satisfied with his partial success, may not prefer an appeal within limitation, but, on the other party appealing may like to reopen the .
adverse part of the decree. In the larger interest of the cause of justice, it is in such circumstances that the party satisfied with partial success is granted another opportunity of challenging the part of the decree against him upon his opponent preferring an appeal, of which notice is served or him. In order to avail of this right he has to take cross-objections within one month from the date of of service on him of notice of the hearing of his opponent's appeal. In this background, the question arises as to what is the effect of the present Appellant's appeal in the lower Appellate Court having been dismissed as barred by rt limitation. From one point of view, he may be held not to have preferred any appeal, but from another point of view, it may be held that having himself chosen to prefer an appeal and having failed in his endeavour to successfully assail the impugned decree, even though on account of the bar of limitation, in fairness, he should not be allowed to have a second chance of re-opening the controversy in the garb of cross-objections. This aspect has not been fully developed at the bar and I would, therefore, be disinclined to express any considered opinion on the point. I should, however, like to point out that it would have been more in consonance with the practice if the learned Additional District Judge had not disposed of the cross-objections before disposing of H. Mohd. Muslim's appeal. The cross- objections are to be heard when the appeal is heard when the appeal is heard and, as a general rule, the Court is expected to dispose of both the appeal and the cross- objections together by one judgment and the decision should be incorporated in one decree. The appellant's learned counsel has, however, not made any grievance of this procedure and I need to say nothing more on it."
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 3137. Therefore, the learned First Appellate Court erred in disposing of the appeal and the cross objections separately.
.
Substantial questions of law raised in RSA No. 227 of 2004 and RSA No.122 of 2019.
38. These substantial questions of law are taken up together as they are interlinked.
of
39. Both the Learned Courts below proceeded on the basis that plaintiffs had failed to prove the encroachment because the rt report of the demarcation was not acceptable. Both the learned Courts below misdirected themselves to decide the question of identification of the land and the validity of the report of demarcation. It is undisputed that the defendants had taken a plea of adverse possession. It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA no. 187 of 2007, decided on 13.09.2019 that once the title of the plaintiff is admitted by taking the plea of adverse possession, the argument that property is not identifiable falls to the ground. It was observed:
"21. Once a plea of adverse possession has been raised, it not only pre-supposes the title over the suit land of the plaintiff, but it even admits the identification of the property or else this plea would be in the air. After all, if the defendant is in adverse possession, then obviously, ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 32 the same is over the property in dispute or else he would not have raised such a plea. A plea of adverse possession implies an admission of title, which is supposedly extinguished.
.
22. In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri KishanDass and others 2008 (149) P. L. R. 67, the relevant portion whereof reads as under:
"5. The question that the plaintiff has not established the identity of the suit land or the property cannot be identified is not borne out from of the record. The defendant-appellants have raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the rt plaintiff is deemed to be admitted, and the argument that the property is not identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that an infructuous decree could not be passed is not made but in view of the plea of adverse possession over the suit land raised by the appellants."
23. On the basis of the aforesaid reasoning, even the findings recorded by the learned Courts below to the effect that the demarcation has not been conducted in accordance with the instructions issued by the Financial Commissioner are erroneous as it was for the defendant to have established a better title than the plaintiff, especially, when he has not been able to prove his adverse possession over the suit land."
40. This position was reiterated in Nek Ram v. Surjan Singh, 2019 SCC OnLine HP 1066 = 2019 (4) CivCC 834.Therefore, the question of identification will not arise in the present case.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 3341. Learned First Appellate Court also held that the plaintiffs did not protest at the time of raising construction by the .
defendant; therefore, they were barred from the principle of acquiescence from seeking possession. Reliance was placed upon the judgment of Punjab and Haryana High Court in Food Corporation of India and another vs Dayal Singh 1991 P.L.J. 425, in of support of this conclusion. However, Punjab & Haryana High Court itself has taken a contrary view in Mohinder Pal Versus rt Omwati 2014 (174) Punjab Law Reporter 447 and held that in case of trespass on the land of others, there can be no question of acquiescence. It was observed:-
"4. Another principle, which was invoked while allowing the appeal filed by the plaintiff, which is the subject of an appeal in RSA no. 2920 of 1984 is that the plaintiff was guilty of acquiescence. The principle of acquiescence is invoked in cases where relief of mandatory injunction is sought against a defendant to do an act in his (defendant's) own property, which invades the plaintiff's right. A typical illustration could be of a construction made by the defendant in his own property and over which, the plaintiff has right of way. If the plaintiff fetters his own exercise of the right by allowing the defendant to do an act, he would be barred by acquiescence in such a case. The case has been dealt with by the Supreme Court in Krothapalli Satyanarayana v. Koganti Ramaiah and others, 1984 (2) SCC 439 which examines the issue of acquiescence of a party, who had allowed her own right of way to be trampled by the defendant's construction. The situation would be different ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 34 where a right to immovable property of the plaintiff is sought to be invaded by the defendant trespassing into the property and putting up construction. If the suit is filed for recovery of possession and claims as an ancillary relief, a .
mandatory injunction for removal, then acquiescence cannot come in the way. The plaintiff shall be entitled to recover possession of the whole property. The situation, however, would be different if the suit is not for recovery of possession, but the suit is only for mandatory injunction. A mandatory injunction by itself is in the genre of equitable relief, which is discretionary. The Court may exercise its of discretion not to grant the said relief and merely grant relief of compensation. This distinction is brought out in Nelson's Law of Injunction, 7th edition, Volume-I, pages 220 to
223. The text paraphrases two judgments, one in Evin Shauk rt Wa v. U. Pa Nyun, 5 ILR(Rang) 404 and another in the judgment of this Court in Municipal Committee, Nakodar v. Sadha Ram,1957 ILR(P&H) 638. If in a case where the plaintiff does not ask for possession but asks only for mandatory injunction directing the defendant to demolish the construction, the Court may well take into account the factor that so long as the plaintiff does not ask for possession of his property, he may lose his right by acquiescence. Where an encroacher puts up construction on another's land not being entitled to the superstructure, the plaintiff can be given full relief by a simple decree for possession, which would mean directing demolition of the building, even without a prayer for any mandatory injunction against the defendant. If there is also a relief of mandatory injunction in such a suit for possession, it is merely for the purpose of giving an opportunity to the trespasser to remove the superstructure put up by him and to avail himself an opportunity to mitigate his own loss. In the decision of this Court in Municipal Committee, Nakodar, the suit was for a declaration of title in which a prayer for an injunction had been sought as auxiliary to the relief of declaration. The Court said that it was not a suit to which Section 54 of the old Specific Relief Act would apply.::: Downloaded on - 12/10/2023 20:33:15 :::CIS 35
This corresponds to Section 38 of the Specific Relief Act, 1963. The learned Judge pointed out that such was not a case in which the Court is free to uphold the title and yet in the exercise of its discretion refuse to grant the relief of .
injunction and the relief of injunction cannot be claimed as a substantive relief independently of the declaration sought.
5. Nelson's Law of Injunction, at page 220, para 30, sets out the law thus:
...The fact that the property involved is of small value or is of no practical use to the plaintiff is wholly of irrelevant to the grant of relief to the plaintiff. Equally irrelevant is any consideration as to whether the defendant would be inconvenienced or subjected to any hardship by the grant of a decree of ejectment rt against him. It is a simple case of trespass or encroachment on the plaintiff's property and the defendant is entitled to no consideration while granting relief to the plaintiff with reference to the wrongs committed by the defendant. In such a case, if the defendant instead of simply occupying the land after his encroachment and trespass puts upon a construction, can his position be in any way better? If it is to be held that simply because the defendant, in addition to committing trespasser encroachment, has put up construction on the land and because of such construction, there is a discretion left in the Court either to grant a decree for possession after directing the defendant to demolish the construction or to award damages instead of directing such demolition, that will be placing such a person in a better position for having aggravated his wrong by putting up a construction. In such a situation there can be no equitable consideration in favour of the defendant and as a matter of fact, all notions of equity and justice will be opposed to any such contention...::: Downloaded on - 12/10/2023 20:33:15 :::CIS 36
IV. Relief of recovery cannot be denied if the title is established but the relief of mandatory injunction is always discretionary.
6. In the first category of the suit, where the plaintiff's suit .
for possession was complaining of trespass committed by the defendant, it can never be stated that the plaintiff could be adequately compensated by only relief of damages in the second category of cases where merely the relief of mandatory injunction is asked, the discretion is available for the Court to grant such relief or not. In the former case, acquiescence is not relevant to deny the relief of recovery of of possession. It may be applied only for providing compensation for a defendant, who has suffered damage from putting up construction. In the latter case, acquiescence will disable a person from securing equitable rt relief. In such an event, the Court will be competent to substitute the relief for damages against the defendant in favour of the plaintiff as compensation for the right lost.
7. The principle, which I have elicited has a statutory basis as well. In a suit for recovery of possession based on the title, Article 65 of the Limitation Act provides for a period of 12 years from the time when the defendant's possession becomes adverse. If the defendant's construction has come about by way of trespass, a suit for declaration and recovery of vacant possession cannot be defeated by the theory of acquiescence. The defendant shall not be without remedy.
Section 51 of the Transfer of Property Act allows for compensation to be claimed by a person, who puts up construction bona fide believing the property belonged to him. The suit for recovery of possession that is decreed can apply Section 51 and secure to a defendant against whom possession is sought to compensate the defendant for the construction put up by him. However, in a mere suit for mandatory injunction, there is no provision for limitation but it shall be granted only in the manner contemplated under Section 39 of the Specific Relief Act if such relief were to be on a stand-alone basis. This qualification becomes essential, for, this is not a mere suit for mandatory ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 37 injunction. The plaintiff has sought recovery of possession through the court as an alternative prayer in both suits.
42. A similar view was taken in M. Ramalingam vs N. .
Thangavelu (1997) 2 MLJ 41 that in the absence of the representation, the plea of the defendant regarding estoppel was not acceptable. It was observed:
of "18. Before putting up construction, he did not make any attempt to measure the same. He was under the belief that it was his property. Naturally, there cannot be any question of acting on the representation of the plaintiff and the same rt has caused detriment to him.
19. What was the encouragement given by the plaintiff is not stated. The defendant did not have any mistake about his legal rights, nor has he a case that on the basis of the mistake on his part, he has spent money. The defendant has no case that before putting up the construction, the plaintiff was also made known about his legal right, and the limits of his property. In what way the plaintiff encouraged the putting up of the construction is also not explained.
Mere silence by itself will not amount to representation unless a duty is cast on the plaintiff to speak about the limits. If so, the plaintiff must also be made aware of the limits of the property. The case put forward by the defendant himself is that pursuant to the partition decree, the plaintiff has not taken possession and, therefore, the plaintiff is not entitled to recover the property. That means the limits of the property were not clear and made known to the plaintiff. It is only on the basis of the title, the plaintiff claims his right. When the defendant comes forward before the court with a case that the plaintiff should not exercise his legal right, it is for him to explain why he should be denied that right.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 3820. Further, the suit is not for mandatory injunction alone. The suit is one for declaration of title and recovery of possession. In that case, it is not discretionary relief that is granted. There is a great difference between a suit for mandatory injunction and a suit for declaration of title and .
recovery of possession, with consequential relief of mandatory injunction."
43. Similarly, it was laid down by this Court in K.S. Mehta and another vs State of H.P. and others 2007(2) SLC 204 that the of trespasser of the land cannot claim justification of the act by mere silence or inaction of the true owner unless the grant of rt permission is established. It was observed:
"9. The learned appellate Court is wrong in observing that since the plaintiff did not approach the Court within a particular period or immediately after the debris was being dumped on the ground, it is a fact which would be used against them. Having committed a tortuous act and continued to do so, unless acquiescence on the part of the plaintiff can be inferred from the evidence on record, the finding of the learned appellate Court is not in accordance with law. A trespasser on another persons property cannot claim justification of the act by mere silence or inaction on the part of the owner of the land unless it can be shown that the only conclusion of such silence is a grant of permission for the commission of the act."
44. Mr. Ashok Sharma, learned Senior Counsel for the appellant has relied upon the judgment of Baini Prasad v. Durga Devi, (2023) 6 SCC 708, wherein, the Hon'ble Supreme Court had laid down the ingredient of acquiescence, as under:-
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 39"27.1.Firstly, being the party propounding the application of the principle of acquiescence it was the burden of the original appellant to establish the fact that the respondent herein had acquiesced in the infringement of his legal right .
and still stood by and allowed the construction. In that regard, it should have taken into account the fact that despite asserting that the construction on the land in question was carried out while carrying out the construction of the residential building on his own land in the year 1986 as per the approved plan he had failed to establish the same by producing the completion certificate of from the local authority.
27.2. Secondly, if that contention is taken as true, he could not have taken up the contention of acquiescence on the respondent as it was also his case that the respondent had rt purchased the land in question only in the year 1987. 27.3.Thirdly, the oral evidence and the documentary evidence on behalf of the respondent would reveal the factum of raising objection on "carrying out the construction, in the absence of any title over the same, at least a defective title, the original appellant could not have claimed bona fideson his action in carrying on the construction.
28. In the said circumstances, the mere delay in instituting the suit, especially when it was filed well within the period of limitation prescribed, should not have been held as amounting to acquiescence. As noticed hereinbefore, the respondent herein after sending a telegraphic message on 22-9-1987 approached the Deputy Commissioner and ultimately obtained a report revealing encroachment on the part of the original appellant on 10-12-1987 and then, brought the suit on 11-5-1988. How can it be said, in the circumstances, that the respondent has not immediately taken proceedings against the original appellant and therefore, she should ever be debarred from asserting her right for recovery of possession of her land from the encroacher even after establishing her title over the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 40 encroached land in a suit instituted well within the prescribed period of limitation.
29.In the situation and circumstances expatiated above it is only apposite to refer to the decision in Abdul Kader .
Chaudhury v. Upendra Lal Barua[Abdul Kader Chaudhuryv.Upendra Lal Barua, 1936 SCC OnLine Cal 151 :
(1935-36) 40 CWN 1370]. It was held therein that in the case of acquiescence, the representations are to be inferred from silence, but mere silence, mere inaction could not be construed to be a representation and in order to be a representation it must be inaction or silence in of circumstances which require a duty to speak and therefore, amounting to fraud or deception.
30. There can be no doubt with respect to the position that estoppel is a principle founded on equity and as held by the rt Court in Maddanappa case [R.S. Maddanappa v.
Chandramma, AIR 1965 SC 1812] its object is only to prevent and secure justice between the parties. In the proven circumstances that the original appellant was not having title over the property, that the respondent herein is the owner of the land in question, that the concurrent finding is that the original appellant was the encroacher and further that objection was raised by the respondent herein against the construction she should not have shut out by the rule of acquiescence or by the rule of estoppel for having made a representation to make the original appellant to believe that she had consented for the construction.
31. The entire circumstances revealed from the evidence on record unerringly point to the fact that the appellant had encroached upon land belonging to the respondent and without bona fides effected constructions which is a verandah which is an extension of a residential building. The object of estoppel, as held in the Maddanappa case[R.S. Maddanappa v. Chandramma, AIR 1965 SC 1812], would be defeated if the said illegality is recognised and allowance is granted therefor. In the contextual situation, a decision of a ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 41 learned Single Judge of the High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan[N.C. Subbayya v. Pattan Abdulla Khan, (1956) 69 LW 52 (AP)] extracted in agreement in the decision by the learned Single Judge of the High .
Court of Madras in the decision in Bodi Reddy v. Appu Goundan[Bodi Reddy v. Appu Goundan, 1970 SCC OnLine Mad 101: ILR (1971) 2 Mad 155], is worthy to be looked into.
32. In the decision in N.C. Subbayya [N.C. Subbayya v. Pattan Abdulla Khan, (1956) 69 LW 52 (AP)] the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award of damages instead of a mandatory injunction where there is a trespass by the defendant on the plaintiff's land?" held thus:
"... 'To say the building erected in such rt circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the plaintiff's property and an appropriation of it for the defendant's use ... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it. To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a rule of law which can be applied limitlessly. In cases of trespass, the court should ordinarily grant an injunction directing the defendant to remove the encroachment and restore possession of the vacant site to the plaintiff. Neither serious inconvenience to the defendant--trespasser nor the absence of serious injury to the plaintiff is a ground for depriving the latter for his legal right to the property.' [Ed. :::: Downloaded on - 12/10/2023 20:33:15 :::CIS 42
As quoted in Bodi Reddy v. Appu Goundan, 1970 SCC OnLine Mad 101] "
33. True that the learned Single Judge in N.C. Subbayya [N.C. Subbayya v. Pattan Abdulla Khan, (1956) 69 LW 52 (AP)] .
further held that if the plaintiff is guilty of laches amounting to acquiescence or has knowingly permitted the defendant to make the construction and made him incur heavy expenditure without protest or objection, mandatory injunction could be declined and damages could be given. As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for of recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the rt relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will.
34. In Bodi Reddy[Bodi Reddy v. Appu Goundan, 1970 SCC OnLine Mad 101: ILR (1971) 2 Mad 155] decision the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under the Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the plaintiff to obtain the relief on his establishing his title. We may hold that in such a situation in the absence of any misrepresentation by an act or omission, the mere fact after making an objection the plaintiff took some reasonable time to approach the court for recovery of possession cannot, at any stretch of the imagination, be a reason to deny him the relief of recovery of possession of the encroached land on his establishing his title over it.
45. In the present case, the ingredients have not been pleaded, the defendant instead of pleading acquiescence has ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 43 pleaded the adverse possession; therefore, the learned First Appellate Court, could not have defeated the claim of the plaintiffs .
on the basis of the principle of acquiescence.
46. The judgment of Punjab and Haryana High Court that in case of trespass, a person is not entitled to possession but compensation also runs contrary to the judgment of this of Court in Bhagwan Dass vs Jagdish Chand 2000 (1) SLJ 165, wherein it was held that in case of encroachment, the rt possession is the only remedy and no compensation can be awarded. It was held as under:-
17. In Dip Narain Singh vs. Jagmohan Ahir (AIR 1925 Allahabad 576), the plaintiff therein filed a suit for possession of the land alleging that the same after having been encroached upon by the defendants; a house has been built therein. The learned trial court, while declining the relief of possession awarded compensation in favour of the plaintiffs. The first appellate court affirmed the findings of the trial court. In the Second Appeal before the High Court, at the instance of the plaintiff, it was held that where immovable property is trespassed upon, monetary compensation is not the proper remedy to the plaintiff. The High Court accordingly granted a decree for possession in favour of the plaintiffs by demolition of the super- structure raised therein by the defendants.
18. Similarly, in Jiwan Ram and others vs. Hussain Bakhsh and others (AIR 1927 Lahore 534(2)), it has been held that no court can force a party to part with his property for a money ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 44 compensation to his adversary who has taken unlawful possession of it by erecting his building on it.
19. A Division Bench of the High Court of Madras also in Ladooram Sowcar and another vs. Nidamarti Jala .
Durgaprasadaraydu (AIR 1938 Madaras 463), has held that the principle, that award of damages as more appropriate remedy instead of an injunction, has no application in cases of actual encroachment or trespass by the encroacher on the land of the owner. The appropriate remedy is the delivery of possession to the owner and not the award of damages.
of
20. The above ratio is applicable to the facts of the present case on all fours. The defendant has been proved to have encroached upon the land belonging to the plaintiff. He is a trespasser and there is no equity in his favour. His rt unauthorized possession cannot be protected simply on the ground that he has raised some superstructure therein.
47. Apart from legal reasons, a jurisprudential reason for not awarding the compensation in case of trespass has been provided by Ward Farnsworthinhis Legal AnalystA Toolkit for Thinking about the Law (2007, University of Chicago)at page 7:
"Let's look at some other examples. I build a house.
Unfortunately, I was mistaken in my measurements, and the structure extends onto your neighbouring property by eighteen inches. There is no cheap way to correct the problem; either the house stays where it is or much of it will have to be torn down. What to do? The ex-post style of thought accepts the situation as it is and asks how it might best be resolved. Nothing the court says can change the fact that the house encroaches; all we can do now is try to keep the damage caused by the mistake to a minimum. So the natural remedy might be an order that I pay you for the strip of land I built on, perhaps with a little premium since ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 45 the sale is, in effect, being forced on you. Why waste a perfectly good house by tearing much of it down? But the ex-ante perspective is entirely different. On this view, it matters little how our particular mess gets resolved. The .
important question is how the resolution of it will affect our behaviour in the future--and the behaviour of others like us. From this standpoint, an award of damages--a forced sale--might seem a terrible solution. It deals sensibly with the problem we already have, but it doesn't give me or anyone else an incentive to be more careful next time. Indeed, it might create the opposite incentive: if I wanted to of build on a bit of your property but were unsure whether you would be willing to sell, my best plan would be to go ahead and build and then let you sue for the value of the land. Even if I have to pay a premium, I still might be better off rt this way than by negotiating with you.
And notice also that the ex-ante point of view is more than just a useful tool for courts to use in deciding cases. It's also important to remember when deciding more broadly how well a rule works. A rule requiring buildings to be torn down when they encroach might look ugly if you just study the cases where the rule actually gets used. All you would see are buildings getting torn down or neighbours demanding extortionate prices from each other to avoid that result. But the consequences of the rule don't appear only in those cases, or even primarily in those cases. The results of the rule also include all the cases where the building never encroaches in the first place because everyone was careful to get a proper survey done--for fear that otherwise the house would have to be torn down later. So new houses that don't get torn down are evidence of the rule's operation, too. A rule that looks brutal and wasteful when invoked might actually be working beautifully, if invisibly, by causing the occasions for its use to be rare."::: Downloaded on - 12/10/2023 20:33:15 :::CIS 46
48. He also deliberates on this issue at page 44 as under:
"Recall the rule that if I mistakenly build a house that encroaches on my neighbour's land, he usually can get an injunction ordering me to remove it; the law won't let me .
wriggle out of the problem by writing him a check. (He might decide to let me do that, but we'll come back to that possibility later.) Notice that this rule often will violate the single-owner principle; if a single owner of the two properties built a house on one of them that encroached on the other, he would be most unlikely to deal with the problem by tearing the thing down. The law doesn't use the of single-owner principle to guide its solution here because it would create bad incentives. When people choose where to build their houses, we don't want them thinking that if they bungle the decision the law will bail them out by ordering rt their favoured solution--the solution they would have wanted if they owned all the land in question, which they don't. This amounts to saying that tearing down the house is an inefficient solution to a case of encroachment--or, to be more precise, to an individual case of it. Tearing down offending houses may well be an efficient solution to the problem of encroachment in general; it may be the rule that keeps the total cost of such fiascos lowest by causing them to occur so rarely. This reasoning might make you wonder whether the single-owner solution--letting the encroacher buy his way out of the problem--should at least be available in cases where it seems clear that there was no such abuse because the extent of the encroachment was tiny and the court is sure that it was an honest mistake. Indeed, most courts do make exceptions for those cases.
49. Therefore, it is difficult to agree with the principle that in case of trespass, the owner can be compensated in terms of ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 47 money and the learned First Appellate Court erred in holding that the owner will not be entitled to the possession of the land.
.
50. Both the learned Courts below had concurrently held that the defendant failed to prove the plea of adverse possession.
These findings have not been challenged and have attained finality. Even otherwise, the defendant Mehar Singh stated that he of constructed his house in the year 1972.The courtyard, the lintel and trees of Galgal, Lemon, Akhrot etc. were raised on the suit rt land. He has been in possession of the land since, 1972 without any obstruction. The owner never objected to his possession and he considers himself to be the owner of the suit land.
51. It is apparent from the statement of this witness that he never asserted that the possession over the suit land was in denial of the title of the real owner, rather he stated that he considers himself to be the owner of the suit land. It was held by this Court in Sushima Kishandev Kaushal v. Council for Tibetan Education, 2006 SCC OnLine HP 15: AIR 2006 HP 122 that where a person did not know that the land belonged to another, he cannot acquire title by adverse possession. It was observed:
"13. In the present case, of course, the defendant has set up the plea of adverse possession, in the alternative, but it has ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 48 not categorically stated that it had the animus to possess the suit property adversely to the plaintiff. In fact, his plea is that it had purchased the property from the mother of the plaintiff, who was recorded as the owner in the revenue .
papers. It has nowhere stated that it knew or even had any inkling at any time before the institution of the suit that the plaintiff was the owner of the suit land. That means when the defendant came in possession of the suit land, on the basis of the sale made in its favour by the mother of the plaintiff, it did not have the requisite animus to prescribe against the present plaintiff. One can be said to have the of animus to prescribe against the true owner only if he knows who the true owner is. The Hon'ble Supreme Court in Annasaheb Bapusaheb Patil v. Balwant alias Balasaheb Babusaheb Patel etc. and four connected matters, (AIR 1995 SC rt
895) has held that a person, who bases his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. It has further been held that in deciding whether the acts alleged by a person constitute adverse possession, regard must be had to the animus of the person doing those acts, which must be ascertained from the facts and circumstances."
52. Thus, a possession to be adverse has to be in denial of the title of the real owner and there can be no adverse possession in the absence of hostile animus. The High Court of Karnataka held in Danappa Revappa Kolli v. Gurupadappa Mallappa Pattanashetti, 1989 SCC OnLine Kar 338: ILR 1990 Kar 610: (1990) 3 Kant LJ 497, that if the plaintiff was not aware of the fact that the land did not belong to him but was under abonafide belief that the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 49 land was part of his original land and the defendant was not aware until the measurement. No adverse possession is established. It .
was observed (at page 612):
"5. Learned Counsel for the appellant has strongly contended that mere possession is sufficient to perfect his title by adverse possession and there need not be animus on the part of the plaintiff to perfect his title by adverse possession. In support of this plea, learned Counsel for the of appellant has placed reliance on a decision of the Supreme Court in Kshitish Chandra v. Commission of Ranchi (1981) 2 SCC 103: AIR 1981 SC 707. In para 8 of the said Judgment, it has been observed that "all that the law requires is that the rt possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner." The Supreme Court was considering the reasoning given by the High Court that adverse possession should have been effective and adequate in continuity and in publicity. This reasoning of the High Court was not approved by the Supreme Court and it was in that connection that the aforesaid observation was made. The Supreme Court in that decision, was not called upon to pronounce as to the ingredients of adverse possession. Apart from actual and continuous possession which are among other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession. In the instant case, it is only on the measurement made at the instance of the defendant, the plaintiff came to know that his land bearing S. No. 483/2A did not extend upto the bund; whereas the land of the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 50 defendant extended beyond the bund towards the land of the plaintiff. The Courts below have negatived the plea of adverse possession. This finding is a finding of fact. The contention of the learned Counsel for the appellant is that .
the measurement took place only in about the year 1977 or 1973 but the defendant purchased the land in the year 1961 and as such the period from 1961 to 1977 was sufficient to perfect his title by adverse possession. This contention overlooks the fact that the plaintiff was not aware till the land was measured that the suit land did not belong to him. He was under a bona fide belief that the suit land formed of part of his land bearing S. No. 483/2A. Thus the plaintiff was not aware of the fact that the suit land which was in his possession did not belong to him whereas he was under a bona fide belief that the suit land formed part of S. No. rt 483/2A of which he is the owner. Similarly, the defendant was not aware of this fact until the land was measured. Para 2 of the plaint averments to which the lower Appellate Court has made a specific reference also goes to show that the plaintiff was not aware of this fact until the land was measured.
6. In Ejas Ali v. Special Manager, Court of Wards, Balrampur EstateAIR 1935 PC 53.It is held that the principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Again in Munnalal, Minor v. Mst. Kashibai AIR 1947 PC 15. it is held that "the essential fact is that Janaki Bai and her successors remained in possession of the property for some 40 years prior to the institution of the suit and that they took possession under a claim of right adverse to the title of the appellant. In their Lordship's opinion, in these circumstances, the claim in the second suit is barred under Article 144 Limitation Act. In the aforesaid case, the facts revealed that possession was obtained by Janaki Bai and her successors in denial of the title of the true owner. The Supreme Court in P. Lakshmi Reddy v. L. Lakshmi ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 51 Reddy AIR 1957 SC 314 has held that the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. It has also been further held that the possession required must be adequate in continuity, in .
publicity and in extent to show that it is possession adverse to the competitor.
This Court in R.C.R. Institution v. State of Mysore AIR 1976 Karnataka 75 has held that: "Thus the possession of the suit property by the plaintiff-church, if any, as evidenced by the graves found in the suit property by the Commissioner, was neither exclusive nor accompanied by the required animus of to establish adverse possession.
7. Applying the principles enunciated in the aforesaid decisions, it is not possible to hold that the possession, in the instant case, of the suit land can be termed as 'adverse rt possession' as it cannot be held that it is in denial of the title of the true owner because the plaintiff himself was not aware of the fact that the suit property did not form part of S. No. 483/2A nor it was known to the defendant who is the owner of S. No. 482/2, that the suit property of which the plaintiff was in possession, formed part of S. No. 482/2.
Therefore, there was no requisite animus on the part of the plaintiff to possess the property in denial of the title of the true owner. Hence the lower Appellate Court is justified in law in holding that the plaintiff has failed to prove that he has perfected his title by adverse possession to the suit property. The finding as to adverse possession is a finding of fact (See Manikayala Rao v. Narasimhaswami AIR 1966 SC
470. Hence no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is not admitted and it is rejected."
53. This judgment was approved by the Hon'ble Supreme Court of India in D.N. Venkatarayappa and another Vs. State of Karnataka & others, 1997 (7) SCC567.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 5254. A similar view was taken in A.V. Rangacharya v.
Pillanjinappa, 1998 SCC OnLine Kar 321: ILR 1999 Kar 1524, wherein .
it was held (at page 1531) "10. The defendants have also set up a plea of adverse possession, which plea is reiterated before me. A person who claims the property as his in bonafide belief, cannot set up a plea of adverse possession because the necessary animus is absent. The ordinary requirement of adverse of possession is that it should be nec vi nec clam nec precario. This view is reiterated in the case Danappa Revappa Kolli v. Gurupadappa Mallapaa ILR 1990 Kar. 610. The following passage is relied upon:
rt "Apart from actual and continuous possession which are among others, ingredients of adverse possession there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting title by adverse possession."
11. In Venkatachalaiah v. Nanjundaiah ILR 1992 KAR 984., the two inseparable ingredients, namely, (1) Corpus Possession (Physical possession) and (2) Animus Possidendi (intention to exclude the adversary from possession) are highlighted. It is also made clear that the possession of a person bona fide believing that the property belongs to him cannot be construed to be adverse. The plaintiff must have had somebody in his mind as owner and enjoy the property to the knowledge of that person against his interest. Mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by adverse animus. Therefore, the plea of adverse possession set up by the defendant must also fall to the ground."
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 5355. It was held in Arundhati Mishra vs. Sriram Charitra Panday 1994 (2) SCC 29, that where a person never renounced the .
title of the real owner to the knowledge of the owner but asserts the title in himself, his plea does not amount to a plea of adverse possession. It was observed:-
"4. The question in this case is whether the plea of adverse of possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his rt case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellant's acquiescence to it. Thereafter, he remained in open and peaceful possession and enjoyment to the knowledge of the appellant without acknowledging/or acquiescing to the right, title and interest of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice he denied the title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given. Even assuming that the reply dated 15/03/1971 constitutes an assertion of adverse possession, the limitation would start running against the appellant only from 15/03/1971 and not earlier. The suit was filed in 1978 within 12 years. Under these circumstances, the High Court is not justified in permitting the respondent to raise the plea of adverse possession. It is made clear that we are not ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 54 expressing any opinion on merits. The judgment of the High Court is set aside and the matter is remitted to the High Court for disposal on merits according to law. The appeal is allowed but without costs."
.
56. In Deva vs. Sajjan Kumar, (2003) 7 SCC 481: 2003 SCC OnLine SC 914, the defendant admitted that he came to know that the land in his possession belonged to the plaintiff after the demarcation. It was held by the Hon'ble Supreme Court that this of admission negates the adverse possession. It was observed:
"9. In the above part of the deposition, the defendant rt admits that the dispute of encroachment concerning suit portion 70′ × 20′ came to his knowledge only after filing the suit. The defendant has described suit land 70′ × 20′ to be part of his Survey No. 453. But all the courts have come to a concurrent finding that the suit land to the extent of 70′ × 20′ is part of Survey No. 452 belonging to the plaintiff.
10. From the deposition of the defendant, it appears that he had encircled by a compound suit land 70′ × 20′ by treating it to be a part of his adjoining Survey No. 453.
11. The deposition extracted above, in any case, negatives the defendant's case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment -- on the plaintiff's survey number.
12. The above quoted admission contained in the defendant's deposition, does not make out a case in his favour of having acquired title by adverse possession. Mere long possession of the defendant for a period of more than 12 years without intention to possess the suit land adversely to the title of the plaintiff and the latter's knowledge cannot ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 55 result in acquisition of title by the defendant to the encroached suit land.
13. The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the .
basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years.
14. The High Court, therefore, was right in upsetting the of judgments of the two courts below on the question of adverse possession and limitation while granting a decree of possession in favour of the plaintiff."
57. rt The adverse possession was explained by the Hon'ble Supreme Court in State of Kerala v. Joseph, 2023 SCC OnLine SC 961, wherein it was observed as under:
20. The principle of adverse possession has been defined by the Privy Council in Perry v. Clissold, [1907] A.C. 73 in the following terms:
"It cannot be disputed that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
21. Before proceeding to do so, it is essential to take note of the law governing such a claim. After a perusal and consideration of various judgments rendered by this Court, the following principles can be observed :
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 5621.1 Possession must be open, clear, continuous and hostile to the claim or possession of the other party;
all three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in .
publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge;
(a) In Radhamoni Debi v. Collector of Khulna, 1900 SCC OnLine PC 4, the Privy Council held that-
"The possession required must be adequate in continuity, in publicity, and of in extent to show that it is possession adverse to the competitor."
rt (b) Further, the Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, AIR 1935 PC 36 observed-
"It is sufficient that the possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening."
(c) A Bench of three judges of this Court in Parsinni v. Sukhi, (1993) 4 SCC 375 held that "Party claiming adverse possession must prove that his possession must be 'nec vi, nec clam, nec precario' i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner."
(d) In Karnataka Board of Wakf v. Govt. of India (two-Judge Bench), (2004) 10 SCC 779 it was held:-
"It is a well-settled principle that a party claiming adverse possession must prove ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 57 that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and .
in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
This case was relied on in the case of M. of Venkatesh v. Bangalore Development Authority, (2015) 17 SCC 1 (three-Judge Bench), Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 rt (three-judge Bench).
(e) This Court in a recent case of M Siddiq (D) through LRs v. Mahant Suresh Das & Ors., (2020) 1 SCC 1 (five-Judge Bench) reiterated this principle as under -
"748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being 'nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence."
21.2 The person claiming adverse possession must show clear and cogent evidence to substantiate such claim;
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 58This Court in Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 (two-Judge Bench) held that -
"5. Possession of a co-owner or of a licensee or of an agent 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..."
of Reference may also be made to M. Siddiq (supra). 21.3 Mere possession over a property for a long period of time does not grant the right of adverse possession rt on its own;
(a) In Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-judge Bench), (1984) 2 SCC 286, this court observed-
"1... It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating the assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough."::: Downloaded on - 12/10/2023 20:33:15 :::CIS 59
Reference may also be made to Arvind Kumar (supra); Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756 (two- judge Bench); Uttam Chand (supra).
21.4 Such clear and continuous possession must be .
accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner; in Karnataka Board of Wakf (supra) it was observed-
"...Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most of important factors that are to be accounted for in cases of this nature..."
rt (a) The case of Annakili v. A. Vedanayagam, (2007) 14 SCC 308 (two-judge Bench) also shed light on this principle as under -
"24. Claim by adverse possession has two elements:
(1) the possession of the defendant should become adverse to the plaintiff, and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into the possessory title for the said purpose. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 60 commencement of the possession..."
(b) In Des Raj and Others v. Bhagat Ram, (2007) 9 SCC 641 (two-judge Bench) this Court .
observed -
"21. In a case of this nature, where long and continuous possession of the plaintiff-respondent stands admitted, the only question which arose for consideration by the courts below was as to whether the plaintiff had been in of possession of the properties in a hostile declaration of his title vis-à-vis his coowners and they were in know thereof."
rt
(c) This court in L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229 (two-judge Bench) had observed that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
(d) It was also held in the case of Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 (two-judge Bench) -
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 61 possession was open and undisturbed..."
(Emphasis supplied) Referring to the above judgment Subha Rao (supra) this Court has reiterated the cardinality of the .
presence of Animus possidendi in a case concerning adverse possession in Brijesh Kumar & Anr. v. Shardabai (dead) by LRs., (2019) 9 SCC 369 (two-Judge Bench).
21.5 Such a plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title;
of The prior position of law as set out in Gurudwara Sahab v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 (two-judge Bench) was that the plea of adverse rt possession can be used only as a shield by the defendant and not as a sword by the plaintiff. However, the position was changed later by the decision of this Hon'ble Court in the case of Ravinder Kaur (supra) had held that - "...Title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession..."
The position in Ravinder Kaur (supra) was followed in Narasamma & Ors. v. A. Krishnappa (Dead) Through LRs. (three-Judge Bench).
21.6 Mere passing of an ejectment order does not cause a break in possession neither causes his dispossession; In Balkrishna v. Satyaprakash, (2001) 2 SCC 498 (two-Judge Bench) this Court held :
"...Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 62 nor discontinuation of his possession which alone breaks the continuity of possession."
21.7 When the land subject of proceedings wherein adverse possession has been claimed, belongs to the .
Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to the Destruction of a right/title of the State to immovable property. In State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652 (two-judge Bench) it was held :
"12. So far as the question of perfection of title of by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately rt involves the destruction of the right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none."
Further, in Mandal Revenue Officer v. Goundla Venkaiah, (2010) 2 SCC 461 (two-judge Bench) it was stated:
"...It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in the destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers."
21.8 A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. This Court has held ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 63 this in the case of V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 (two-judge Bench) :
"...A plea not properly raised in the pleadings or issues at the stage of the trial, would not be .
permitted to be raised for the first time at the stage of appeal..."
It has also been held in the case of State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 (two-judge Bench) :
"...The courts below also should have seen that of courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but rt not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief..."
Mandir Sri Laxman Sidh Maharaj (supra) was relied on in Dharampal (Dead) v. Punjab Wakf Board, (2018) 11 SCC 449 (two-judge Bench) on the same principle. 21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 (two-judge Bench) elaborated this principle as:
"15. Where possession can be referred to as a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to as a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 64 that title by pretending that he had no title at all."
This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639 (two-judge .
Bench) -
"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the of transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by rt prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit. Thereby the plea of adverse possession is not available to the appellant."
The Court in Uttam Chand (supra) has reiterated this principle of adverse possession.
21.10 The burden of proof rests on the person claiming adverse possession.
This Court, in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 (two-Judge Bench), held that initially, the burden lay on the landowner to prove his title and title. Thereafter it shifts on the other party to prove title by adverse possession. It was observed:
-
"34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 65 Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in .
terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession...."
The Court reiterated this principle in the case of of Janata Dal Party v. Indian National Congress, (2014) 16 SCC 731 (two-judge Bench):
"...the entire burden of proving that the possession is adverse to that of the plaintiffs, is rt on the defendant..."
21.11 The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State. [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 (two-judge Bench)]
58. Therefore, in the absence of a plea regarding the denial of the title of the real owner, the learned Courts below had rightly negated the plea of adverse possession taken by the defendant.
59. The defendant had taken a plea of adverse possession.
It was laid down by this Court in Basant Singh Versus Kishan Dayal RSA No. 187 of 2007, decided on 13.09.2019, that when the defendant raises a plea of adverse possession, he impliedly admits the ownership of the plaintiffs over the land in dispute. It was observed:-
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 66"24. It is more than settled that when the defendant acknowledges the title of the plaintiff by raising a plea of adverse possession, then the relief for possession can be denied to the plaintiff only in the event the defendant .
proves the title by way of adverse possession or proves better title in the suit land.
25. In T. Anjanappa and others vs. Somalingappa and another (2006) 7 SCC 570, the Hon'ble Supreme Court held as under:
"21. The High Court has erred in holding that even if the defendants claim adverse of possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. The rt requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying the title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
[See also Des Raj and Ors. v. Bhagat Ram (Dead) By Lrs. and Ors. 2007 (3) SCALE 371;
Govindammal v. R. PerumalChettiar&Ors., JT 2006 (10) SC 121 : (2006) 11 SCC 600]."
60. Therefore, the ownership of the plaintiffs was never in dispute in view of the plea of adverse possession taken by the defendant. Hence, the plaintiffs were entitled to possession based on their title.
61. It was submitted that the construction was raised in the year 1981 and the suit was filed in the year 2002, hence, the ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 67 same was barred by limitation. 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. It was observed:-
of "10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of rt immovable property or any interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiff
11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.
12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for howsoever long a period is not enough to claim title in as much as the possession has to be adverse.
14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 68 possession based on the title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.
.
15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."
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62. Similarly, it was held in Indira v. Arumugam, (1998) 1 SCC 614 that a suit based on the title cannot be defeated on the ground of limitation unless the plea of adverse possession is rt established. It was observed:-
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of the Period of Time from which suit:- For limitation:- period begins to possession of Twelve years run:- When the immovable possession of the property or any interest therein defendant becomes based on the title adverse to the plaintiff.
5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 69 unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited.
Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning .
for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed."
63. In the present case, the adverse possession was not of proved; therefore, the suit of the plaintiffs could not have been dismissed after holding that the plea of adverse possession was rt not proved by the defendant.
64. Thus both the learned Courts below proceeded in error by ignoring the relevant principle of law, applicable to the present case. It was laid down by Hon'ble Supreme Court in Arulvelu v.
State, (2009) 10 SCC 206, that when the findings have been recorded by the Courts against the law these are perverse. It was observed:
24. The expression "perverse" has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501] this Court observed that the expression "perverse"
means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 7025. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [AIR 1966 Cal 31] the Court observed that a "perverse finding" means a finding which is not only against the weight of evidence but is altogether against the evidence .
itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665: AIR 1994 SC 1341] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] of the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a "perverse verdict" may probably be defined as one rt that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined "perverse" as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn.
"Perverse.--Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English, International Edn.
Perverse.--Deliberately +++++++departing from what is normal and reasonable.
3. The New Oxford Dictionary of English, 1998 Edn.
Perverse.--Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 714. The New Lexicon Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn.) Perverse.--Purposely deviating from accepted or .
expected behaviour or opinion; wicked or wayward;
stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn.
"Perverse.--A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
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28. In Shailendra Pratap v. State of U.P. [(2003) 1 SCC 761: 2003 SCC (Cri) 432] the Court observed thus : (SCC p. 766, para 8) rt "8. ... we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10: 1999 SCC (L&S) 429] the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under :
(SCC p. 14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of 'guilt' is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 72 and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on .
record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of "perverse" has been examined in Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & of Sons[1992 Supp (2) SCC 312], this Court observed as under :
(SCC pp. 316-17, para 7) "7. In the present case, the stage and the points on which the challenge to the assessment in judicial rt review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court to reappreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in the review was, in substance, the correctness--as distinguished from the legal permissibility--of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 73 the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
.
65. It was laid down in Hero Vinoth v. Seshammal, (2006) 5 SCC 545, that the application of a settled position of law to the facts of the case if raises a substantial question of law. It of was observed:
21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined rt in the Code. The word substantial, as qualifying "question of law", means--having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--
technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance"
as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta[(1927-28) 55 IA 235: AIR 1928 PC 172] the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case [1962 Supp (3) SCR 549: AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a ::: Downloaded on - 12/10/2023 20:33:15 :::CIS 74 Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549:
AIR 1962 SC 1314], SCR p. 557) .
"[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand, if the question was practically covered by the decision of the highest of court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a rt substantial question of law."
This Court laid down the following test as a proper test, for determining whether a question of law raised in the case is substantial : (Sir Chunilal case [1962 Supp (3) SCR 549: AIR 1962 SC 1314], SCR pp. 557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 7522. In Dy. Commr. v. Rama Krishna Narain [1954 SCR 506:
AIR 1953 SC 521] also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the .
then) Section 100 CPC.
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case if answered either way, insofar as the rights of the parties before it are concerned. To be a of question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be rt necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
(See Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .)
66. Therefore, the learned Courts below had misread the evidence and erred in decreeing the suit, after negating the plea of adverse possession taken by the defendant, and the substantial questions of law are answered accordingly.
::: Downloaded on - 12/10/2023 20:33:15 :::CIS 76Final order:
67. In view of the above, the present appeals are allowed .
and the judgment and decree passed by the learned Courts below are set aside and the suit of the plaintiff is decreed for vacant possession of the suit land by demolishing the structure raised thereon. The record of the case be remitted back to the learned of Courts below. Pending miscellaneous applications, if any, also stand disposed of.
rt (Rakesh Kainthla)
Judge
5th October,2023
(Ravinder)
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77
.
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rt
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