Himachal Pradesh High Court
Smt. Sukha Devi vs Sh. Paritosh Chauhan on 25 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.355 of 2017.
.
Date of decision: 25.07.2018.
Smt. Sukha Devi .....Appellant/Plaintiff
Versus
Sh. Paritosh Chauhan ....Respondent/Defendant
Coram
For the Appellant
r :
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes Mr. Suneet Goel, Advocate.
For the Respondent : Ms. Jyotsna Rewal Dua, Senior Advocate, with Mr. Tijender Singh, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
The instant appeal has chequered history.
2. The plaintiff is the appellant, who after having lost before both the learned Courts below has filed the instant Regular Second Appeal.
The parties shall be referred to as the 'plaintiff' and the 'defendant'.
3. The plaintiff filed a suit for declaration and permanent prohibitory injunction against the defendant before the learned Civil 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 2 Judge (Jr. Division), Sirmaur District at Nahan vide Civil Suit No. 37/1 of 2014 with averments that she is the owner in possession of suit .
property comprised in Khewat Khatauni No. 74/109, Khasra No. 2141/216, measuring 7.65 sq.mtrs. Khasra No. 218 measuring 91.14 sq.mtrs., khasra No. 2145/221 measuring 6.46 sq.mtrs. total measuring 105.25 sq.mtrs situated at Mohal Naya Bazar, Nahan, District Sirmaur and the plaintiff has built up her residential house over the suit property. It was claimed that adjacent to the suit property, the defendant is having his landed property comprised in khasra No. 2142/216 measuring 161.43 sq.mtrs. and khasra No. 217 measuring 80.40 sq.mtrs total measuring 241.83 sq.mtrs situated at Naya Bazar, Nahan. The house of the plaintiff is situated over her land for the last more than 25 years and there exists a window of size about 6' x 2.5 feet, which opens towards the land of khasra No. 217 owned and possessed by the defendant and she is enjoying the light and air to her house/bed room from the said window peacefully without any interruption continuously as an easement for the last 25 years and thus she has acquired easement by way of prescription. The construction and window of the house of the plaintiff is sown in site plan mark X in green colour. It was claimed that the appellant for the protection of her property has raised a boundary wall around it up to ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 3 the height of 11 feet bricks and stone wall and the defendant has no right, title or interest in her property. It was pleaded that the defendant .
started raising construction over his property on khasra No. 217 and 2142/216 without getting the site plan approved from the M.C. or TCP, Nahan and he started digging the pits for construction of pillars just adjacent to the wall of the plaintiff and thereby caused huge damage to the wall of the plaintiff. Moreover, the defendant also dug a pit in front of the window of the house of the plaintiff with a view to block it and she had to file a complaint with the police on 30.3.2014 and the defendant was also directed not to do so and he made a statement before the police to the effect that he will not raise any kind of construction till he gets his land demarcated through the revenue agency. It was pleaded that thereafter the defendant again started raising construction of his house in an illegal manner and if the defendant is not restrained from causing interference or raising construction in illegal manner, he will demolish the wall of the plaintiff and close the window by raising construction and the plaintiff will be deprived of enjoying light and air to her house and she will suffer irreparable loss and injury which cannot be compensated in terms of money. Hence the suit.
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 44. The defendant contested the suit by filing written statement wherein preliminary objections qua dishonesty of the .
plaintiff, lack of approved site plan, enforceable cause of action, locus-
standi etc. were taken. On merits, it was averred that the property which adjoins the property of the defendant lying in the shape of the ruin even the revenue record referred by the plaintiff reflects the same to be a 'Khandar' and vacant land meaning thereby it is not a house, where the plaintiff resides and the plaintiff has very cleverly recently fixed a small piece of wood on the top of the wall to show that it is ventilator. It was averred that the plaintiff has deliberately not mentioned that the defendant is also a joint owner to the extent of half share in the common passage, which adjoins the suit property and terminates at the Iron Gate facing Naya Bazar, Nahan. In fact, the portion allegedly fallen to the share of the plaintiff is lying vacant and as Khandar, therefore, the averment that she is residing there is simply a flight of imagination and no window exists there and recently a small piece of wood has been fixed on a portion of a ruined wall with a view to show the same as ventilator and this particular piece is being claimed as a window. It was denied that the plaintiff getting light and air to her house through the aforesaid ventilator for the past 25 years and she has not acquired any easementary right. It was claimed that ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 5 no fresh wall was constructed by the plaintiff as a boundary wall and the aforesaid wall falls within the share of the defendant and cannot by .
any stretch of imagination be deemed to be a part of the property of the plaintiff. It was averred that the defendant has not closed any window nor has obstructed the passing of light and air through such window. Lastly, the defendant prayed for dismissal of the suit.
5. In the replication, the plaintiff reiterated the averments
6.
r to made in the plaint and denied the assertions made in the written statement.
On 10.10.2014, the following issues were framed by the learned trial Court:-
"1. Whether the plaintiff is enjoying the light and air to her house/bed room from the window situated in the suit property continuously, peacefully without interruption for the past more than 25 years? OPP
2. If issue No.1, is answered in affirmative, whether the plaintiff has acquired easement by way of prescription, as alleged? OPP
3. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
4. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed for? OPP
5. Whether the plaintiff has got no cause of action to file the present suit? OPD ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 6
6. Whether the plaintiff has no locus standi to file the present suit? OPD
7. Whether the plaintiff has not approached this Court with .
clean hands? OPD
8. Whether the plaintiff is estopped by her act and conduct, deed and acquiescence from filing the present suit? OPD
9. Whether the suit property is in the form of Khundar and vacant land and no such window exists through which any light or air is enjoyed by the plaintiff, as alleged? OPD
10. Relief.
7. The learned trial Court after recording the evidence and evaluating the same dismissed the suit filed by the plaintiff and the appeal preferred by the plaintiff came to be dismissed by the learned first appellate Court vide judgment and decree dated 06.05.2017.
Undeterred, the plaintiff has filed the instant appeal on the ground that the findings recorded by the learned Courts below are perverse and, therefore, deserves to be set-aside.
8. On the other hand, learned Senior counsel for the defendant would contend that the instant suit is nothing but an abuse of the process of the Court as the plaintiff has been repeatedly litigating on one pretext or the other despite having lost uptil this Court in RSA No.633 of 2000 decided on 2.11.2006.
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 79. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. .
State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, 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 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 Sixth Edition 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 Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 8 PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language .
(Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition 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.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "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 reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that 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. The Commissioner of Police & Others (1999) 2 SCC 10, 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 and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 9 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 H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial 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 r 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 re- appreciate 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 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 the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 10"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no .
evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 11
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) .
"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot r interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent.
Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW- 2 has also supported the case of the plaintiff. Even the witnesses on ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 12 behalf of the defendant, partially admitted that the defendants had effected some structural changes.
.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 13 that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on .
the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-
vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication
-- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the r disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30:
(S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 14 excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the .
vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence 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, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
r This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law.
Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
12. Bearing in mind the aforesaid exposition of law, it would be noticed that the plaintiff had initially filed a suit against the predecessor-in-interest of the defendant for grant of mandatory injunction as well as prohibitory injunction, which was decreed by the then trial Court of Sub Judge 1st Class, Nahan vide its judgment and ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 15 decree dated 21.9.1999. The defendants filed Civil Appeals No. 119- CA/13 of 1999 and 120-CA/13 of 1999 before the learned District .
Judge, Sirmaur District at Nahan, who vide his common judgment dated 12.9.2000 disposed of the appeals by modifying the judgment and decree passed by the trial Court. As regards the construction of the room measuring 12 ft. x 13 ft. by defendants No. 2 and 3, the same was upheld, whereas the suit of the plaintiff for demolishing the iron gate in front of the property from Naya Bazar as well as the staircase, bath room-cum-toilet and the water tank in the common Deori, was upheld.
13. Evidently, the property in dispute is comprised in Khasra Nos. 202, 221/1, 221/2, 222 and 225/1 measuring 105-79 sq. mtrs.
and in addition thereto, the property comprised in Khasra Nos. 216/2, 217 and 268 total measuring 270-63 sq.mtrs. situated at Mohal, Naya Bazar Nahan for which an injunction was passed by the learned trial Court and affirmed upto this Court in RSA No. 633 of 2000 decided on 2.11.2006.
14. It is further not in dispute that despite the injunction order qua Khasra No. 217 has been affirmed by this Court, the plaintiff thereafter filed a suit for declaration to the effect that she alongwith her husband Anil Mohil had become owners by way of adverse possession ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 16 of the suit property detailed in Khata Khatauni No. 81/119, Khasra No. 2142/216, measuring 161.43 sq.mtrs. and Khasra No. 217 measuring .
80-40 sq.mtrs. total measuring 241.83 sq.mtrs. and also Khata Khatauni No. 82/120, Kitas 5, measuring 105-79 sq.mtrs. to the extent of half share therefrom, situated in Mohal Naya Bazar, Nahan. The suit was instituted on 21.02.2012 and registered as Case No.13/1 of 2012 and was withdrawn by the plaintiffs on 09.04.2014 as is evident from Present:
the order passed on the said date, which reads thus:
"09.04.2014 Shri V.C.Jain, learned counsel for the plaintiffs.
Shri A.K. Rewal, learned counsel for the defendants.
File taken up today on the application moved on behalf of the plaintiffs. Separate statements of the plaintiffs recorded. In view of separate statements of the plaintiffs, the suit of the plaintiffs is dismissed as withdrawn. The file after completion be consigned to record room."
15. Evidently, it is only after withdrawal of the aforesaid suit that the present suit came to be filed, that too, based on the claim of easementary rights. Therefore, in this background, the moot question which arises for consideration is after the plaintiff having filed suit for adverse possession can claim easementary rights of the same land over which she claimed adverse possession by way of easement, obviously, the answer is in the negative. The easementary rights as ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 17 claimed by the plaintiff is over Khasra No. 217 which she in the instant case admits to be in the ownership and possession of the defendant.
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Whereas, in the earlier suit while pleading adverse possession, obviously, she would have claimed herself to be not only in possession, but the owner of the same by efflux of time.
16. Plea of adverse possession and limitation pre-supposes that the title of the opposite party is admitted and that the defendants by
17.
r to virtue of their long, independent and continued possession claim in derogation of the title of the plaintiff.
On the other hand, the plea based on title would pre-
suppose that the plaintiff asserts his/her title to the property and claims ownership by virtue of his rightful claim as a lawful owner based on a document of title. By claiming adverse possession, the title of the defendant is admitted but what is pleaded is a hostile, continuous possession to the knowledge of the defendant. Therefore, such a plea would necessarily be destructive to the plea based on title.
18. Both the pleas i.e. plea of title on the basis of sale deed and plea of adverse possession are vertically opposite pleas and are destructive in nature. Plea of adverse possession pre-supposes ownership of the plaintiff.
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 1819. Adverse possession pre-supposes that the plaintiff admits title of the other but he/she is possessing the property denying the title .
of true owner. The Hon'ble Supreme Court in Karnataka Board of Wakf vs. Government of India and others, (2004) 10 SCC 779 held as under:
11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title.
But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove 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.
(See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 19 his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari .
Sharma (1996) 8 SCC
128).
12. A Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that : (SCC p. 527, para 5) r to "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4) " 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 there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the 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 his title by 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 land lawfully under the agreement and ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 20 continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
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20. Thus, what can be taken to be well settled by now is that the plea of adverse possession pre-supposes and is based on the speculative intent of a person on account of default of true owner being not in possession of the property. That means, the right of adverse possession is a piratical right, mainly based on:
(i) Speculative and negative theory of default ;
(ii) wishful presumption that the owner has abandoned the property to the adverse possessor and;
(iii) that the true owner has not claimed the possession from the opposite side within a period of limitation, prescribed under Articles 64 and 65 of the Limitation Act, as the case may be and nothing else. It lacks any statutory recognition in this behalf.
This is for this precise reason that it can only be used as a shield of defence to protect the possession, but cannot be used as a sword, meaning thereby, the plaintiff cannot claim the ownership in the property in dispute by way of adverse possession. Though, the same may be pleaded by the defendant in defence in the written statement only for a limited purpose to protect the possession after expiry of the statutory period of limitation.
21. Therefore, this plea in the present suit in teeth of the earlier suit having been filed by the appellant for adverse possession ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 21 wherein she claimed herself to be in possession of Khasra No. 217 is clearly not available to her and in fact the instant suit is nothing but an .
abuse of the process of the Court, as it is more than settled that for a right to be exercised by a person as an easement it is necessary to establish that the right was exercised by her on somebody else's property and not as an incident of her ownership of that property. For that purpose her consciousness during the statutory period that she was exercising that right on the property treating it as somebody else's property is a necessary ingredient in proof of the establishment of that right as easement. If the owner of the dominant tenement has during part of the period of prescription exercised the rights which she claims as an easement under the assertion or belief that she was the owner of the servient tenement then her exercise of those rights is not exercise "as easement" and she must fail in a claim to easement.
22. If a person has actually claimed ownership of the servient tenement in a previous litigation within the statutory period of twenty years it may be regarded as an important piece of evidence to show that she did not exercise that right as an easement. (Refer:Raychand Vanmalidas vs. Maneklal Mansukhbhai AIR 1946 Bombay 266 (FB.).
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 2223. The Hon'ble Supreme Court in K.K.Modi vs. K.N.Modi and others, reported in (1998) 3 SCC 573 has dealt in detail with the .
proposition as to what would constitute an abuse of the process of the Court, one of which pertains to re-litigation. It has been held at paragraphs 43 to 46 as follows:
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court" thus : "This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . . . The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court.
Frivolous or vexatious proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 23 Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a .
jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980) 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to re-litigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.
24. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, reported in (2013(2) SCC ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 24 398, has dealt in detail with "abuse of process of Court" in the following terms:
.
Abuse of the process of Court :
"31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.
32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are: 32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 25
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings.
.
Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. 32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs. 32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa".
Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 26
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the .
enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 27 achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like .
perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
36. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC 287)].
::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 2837. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure .
naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
38. No litigant can play 'hide and seek' with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481].
39. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K. Parasaran, (1996) 5 SCC 530)."
25. Now, it is to be seen as to whether the conduct of the plaintiff was infact in abuse of the process of the Court. What is " abuse ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 29 of process of Court" of course has not been defined or given any meaning in the Code of Civil Procedure. However, a party to a litigation .
can be said to be guilty of abuse of process of the Court in any of the following cases as held by the Hon'ble Madras High Court in Ranipet Municipality Rep. by its.... Vs. M. Shamsheerkhan, reported in 1998 (1) CTC 66 at paragraph 9. To quote:
"9. It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions.
(9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppet plaintiff.::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 30
(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc."
The above are only some of the instances where a party may be said .
to be guilty of committing of " abuse of process of the Court".
26. Bearing in mind the aforesaid exposition of law, it would be noticed that being conscious of the fact that it was Khasra No. 217 that the plaintiff had laid her claim being in adverse possession thereof, she in the instant suit acknowledged the title of the defendant so as to set up the plea of easement which is nothing sort of being malafide. That apart, it would be noticed that the plaintiff has miserably failed to prove this plea. In fact, the plaintiff had failed to establish on record that the wall in question had been constructed by her. As a matter of fact, it is concurrently found by the learned Courts below that the defendant was raising construction by way of pillars over his own land and the present suit had been filed only to harass him.
27. That apart, the plaintiff has not even pleaded her case as is required under the Indian Easement Act, more particularly, under Section 33 and the averments of easement were contained in para-5 of the plaint, which reads thus:
"5. That the defendant did not do any construction work for two or three days thereafter he has started raising construction of his building in the illegal manner just adjacent to the suit property. The defendant has not applied for demarcation as submitted by him till now. The defendant if is not restrained from causing interference or ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 31 raising construction in illegal manner he will demolish the wall of the plaintiff and also close the window by raising construction in front of it. If the window is closed by the illegal acts of defendant the plaintiff .
will be deprived of enjoying/getting light and air to her house from the same and the injuries so suffered by her shall be of irreparable nature, which cannot be compensated in terms of money. The plaintiff being owner in possession of the suit property is entitled to enjoy the fruit of the same and she is entitled to get air and light to her house from the window as she has acquired the right by way of prescription being enjoyed continuously without interruption for the last more than 25 years, whereas the defendant has no right, title or interest to cause any kind of interference in the same."
28. It would be evidently clear from the aforesaid averments that the plaintiff has neither pleaded obstruction of free passage to natural light and air nor obstruction to any easementary right of light and air which obviously is not her case that she had acquired. It is well recognized principle that unless easementary rights to light and air are obstructed the adjacent owner has a right to put up his own wall at the boundary of his property and the owner of the other adjacent property can have no grievance against the same.
29. As observed earlier, the present suit has been filed only to unnecessarily harass the defendant and waste the precious time of this Court. Now, in such a situation, can these present proceedings be termed as bonafide or are they frivolous, vexatious or oppressive?
There can be no manner of doubt that the present proceedings are ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 32 vexatious, obstructive apart from being a dilatory action in the Court of law whereby the plaintiff has abused the process of the Court by .
instituting multiplicity of proceedings for ones own aggrendisement.
30. Thus, what clearly emerges from the aforesaid is that no litigant can be permitted to indulge in re-litigation and file successive suits or petitions because the general principles underline the doctrine of res judicata is ultimately based on consideration of public policy. One important consideration of public policy is that the decision pronounced by the Court of competent jurisdiction should be final, unless modified or reversed by the appellate authorities and the other principle is that no one should be made to face the same kind of litigation twice, because such a process would be contrary to considerations of fair play and justice.
31. In view of the aforesaid discussion, the suit instituted by the plaintiff is not only vexatious but is the gross abuse of the process of Court whereby not only the defendant has been put to unnecessary harassment but even the precious time of this Court has been wasted.
The plaintiff is thus made herself liable for being imposed punitive costs.
32. Accordingly, the present appeal is dismissed with costs of Rs.50,000/- to be paid by the appellant/plaintiff to the respondent/ defendant within a period of four weeks. In the event of the costs not ::: Downloaded on - 28/07/2018 23:00:24 :::HCHP 33 being paid within the stipulated period, the respondent/defendant shall be free to execute this order and recover the costs in accordance with .
law.
( Tarlok Singh Chauhan ) th 25 July, 2018. Judge.
(GR)
r to
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