Punjab-Haryana High Court
Abdul Majid And Ors vs Lala Jagan Nath Aggarwal-Huf on 19 November, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Regular Second Appeal No.1374 of 2011 (O&M)
Date of Decision: November 19, 2014.
Abdul Majid and others
..........APPELLANT(s).
VERSUS
Lala Jagan Nath Aggarwal-HUF
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Ashish Aggarwal, Senior Advocate with
Ms. Ritu Pathak, Advocate
for the appellant (s).
Mr. A.S. Chadha, Advocate with
Mr. S.K. Biriwal, Advocate
for the respondent.
*******
SURINDER GUPTA, J.
This is regular second appeal against judgment and decree dated 15.10.2008 passed by learned Additional District Judge, Faridabad in RCA No.31-RBT of 21.04.2008 confirming judgment and decree dated 18.03.2006 of learned Additional Civil Judge (Senior Division), Faridabad in Civil Suit No.270 of 1998.
The facts of the case, in brief, are that Smt. Shanti Devi (since deceased) was owner of plots bearing No.BP-16 and 17 situated at B-Block, Central Green, NH-3, NIT Faridabad measuring 1200 square yards each. She had purchased these plots in open auction conducted by Managing Officer, Ministry of Rehabilitation, Government of India under the provisions of SACHIN MEHTA 2014.12.24 16:27 Displaced Persons (Compensation and Rehabilitation) Act, 1954 and rules I attest to the accuracy and integrity of this document Chandigarh RSA-1374-2011 2 framed thereunder. After purchase of plot, she was also delivered possession of the same.
Plaintiff being resident of Jalandhar, could not look after the said property for some time, especially when State of Punjab was under disturbed condition. Taking advantage of the situation, defendants squatted over the suit property described as ABJIHGFE and shown in red colour in the site plan Ex.P10 and raised temporary hutments sometime in the year 1988. They also succeeded in getting their names entered in the local municipal record which fact came to the notice of plaintiff in the year 1988 and she moved an application before the Deputy Commissioner, Faridabad to get the unauthorised encroachment of defendants removed on 14.09.1989. In the meantime, the defendants filed a civil suit seeking the relief of injunction and obtained temporary injunction from the Court of Senior Sub Judge, Faridabad. Barkat son of Amin and Jagdish Lal son of Keshar Dass also filed civil suits seeking relief of permanent injunction inter-alia claiming their possession over part of disputed plots. This deterred the law enforcing agency from intervening to get the unauthorised encroachment removed.
In the suit filed by defendants Abdul Majid and others, they failed to prove their ownership by way of adverse possession. The Court upheld the possession of defendants over the suit land and directed the defendants to be evicted only in due course of law. The suit filed by Barkat was dismissed on 14.08.1996. Jagdish entered into a compromise and purchased the portion of the plots in June, 1993 and got his suit dismissed on 10.06.1993. The portion agreed to be purchased by said Jagdish Lal is shown as EFGHKD measuring around 777 square yards as shown in the site plan Ex.P10. The plaintiff claimed possession of the suit property along with RSA-1374-2011 3 mesne profits for the period 01.06.1995 to 01.06.1998 @ `2,000 per month total amounting to `72,000.
Appellants-defendants in their written statement, contested the claim of plaintiff inter-alia pleading as follows:-
(i) In the earlier suit filed by the defendants, the plaintiff had failed to prove her ownership.
(ii) On the point of ownership over the suit property, the suit is barred by resjudicata.
(iii) Plaintiff is not the owner of the suit property, as such, is barred from claiming the possession of the same.
(iv) The father of defendants purchased the plot bearing No.3-B/18 in the year 1974 but the plot in dispute adjoins plot No.18. At the time of purchase, there were pits in both the plots. The defendants re-claimed the land by filling the deep pits and raised construction in the year 1974 and since then, they are in possession of the suit property 'as owners'.
(v) There exists a house, workshop shed and cattle shed over the suit property as shown in the site plan Ex.D8. The construction was raised by the defendants as owners and they are living with their families in the land in dispute.
(vi) The house-tax has been assessed over the suit property in the name of defendants for the last more than 15 years.
(vii) The plaintiff never remained in possession over the suit land or was given possession of the same.RSA-1374-2011 4
(viii) The defendants are in possession over the suit land since 1974 as owners and plaintiff has no right to file this suit after a lapse of more than 24 years.
(ix) In the suit for injunction filed by the defendants, there was no occasion to prove the ownership and the plea of the defendants that they have become owners by way of adverse possession. As such, the findings of the civil Court in that suit that the defendants have not been able to prove the title over the suit land, do not affect the right of the defendants in any manner.
The defendants denied their liability to pay any damages or mesne profits for their possession over the suit land to the plaintiff claiming their possession as owners by way of adverse possession.
The plaintiff reiterated and reasserted her case in the replication. The pleadings of the parties led to the framing of issues as follows:-
(1) Whether the plaintiff is owner of plots bearing No.BP-16 & BP-17 as alleged in para no.1 of the plaint ?OPP (2) If issue No.1 is proved, whether the plaintiff is entitled for decree of possession as well as mandatory injunction as prayed for ?OPP (3) Whether suit is barred by resjudicata ?OPD (4) Whether suit is time barred ?OPD (5) Whether suit has not properly valued for the purpose of court fee and jurisdiction ?OPD (6) Relief.
The Court of Additional Civil Judge (Senior Division), Faridabad decreed the suit of the plaintiff on following terms:- RSA-1374-2011 5
"Resultantly, suit filed by the plaintiff is partly decreed to the effect that plaintiff is entitled to the possession of the suit property bearing plots No.16 and 17 Block-B, Central Green, NH-3, NIT Faridabad as described by letters A B J I H G F E. Defendants are directed to remove the unauthorised construction thereupon the area A B J I H G F E within a period of two months and hand over the vacant possession to the plaintiff, failing which the plaintiff shall be entitled to recover the possession through process of law. Suit of the plaintiff is partly dismissed as plaintiff is not entitled for mesne profit of Rs.72,000/- as claimed or any pendent lite and future mesne profit."
The first Appellate Court affirmed the finding of lower Court in appeal filed by the appellants-defendants.
I have heard learned counsel for the parties and have gone through the paper book and record of the Courts below with their assistance.
Assailing the findings of Courts below, learned senior counsel for the appellants has argued that both the Courts have failed to look into the fact that by the time, respondent-plaintiff filed the suit on 12.06.1998, the defendants have become owners of the suit land by way of adverse possession. Though the defendants took the possession of the disputed land in the year 1974 and they were recorded as owners in possession of the disputed plot in the municipal record in the year 1984. A period of 12 years have passed even after the recording of the names of the appellants as owners in possession of the disputed plot in the municipal record which is a notice to the general public. He has argued that filing of suit for injunction by appellants could not give any fresh cause of action to respondent-plaintiff to seek the possession of the disputed plot over which the appellants have ripen their title by way of adverse possession. In the end, while concluding his RSA-1374-2011 6 arguments, learned senior counsel for the appellants has argued that though there is no specific plea raised by the defendants claiming title over the suit property by way of adverse possession, still this fact could be looked into by the Courts below as the parties were aware of the matter in controversy and even in the absence of any issue claimed or pressed by the appellants- defendants that they have become owners by way of adverse possession, the Court could adjudicate on this issue. He has supported his arguments with the observations of Full Bench of this Court in Ram Niwas and another Vs. Rakesh Kumar and others AIR 1981 Punjab and Haryana 397 and P.Purshottam Reddy and another Vs. M/s Pratap Steels Ltd. 2002(1) PLJ
390. Learned counsel for respondent has argued that firstly in the absence of plea of adverse possession being raised and ingredients of adverse possession pleaded and proved, the appellants cannot usurp the title over the plots in dispute, adverse to the title of the owner (respondent-plaintiff); secondly, in order to raise the plea of adverse possession, the appellants were required to admit the title of plaintiff-respondent as owner but in this case, they have come with the plea that respondent-plaintiff is not the owner of the plots in dispute; thirdly, appellants have not pleaded or proved any date from which their possession over the plots in dispute has become adverse to the respondent-plaintiff. In para 5 of the written statement, they have claimed themselves to be the owners of the suit property, which is a plea self- destructive and antithesis over the very principle to prove title by way of adverse possession. Even while appearing as DW8, appellant-defendant Abdul Majid has stated that he did not know as to who was the owner of the plots in dispute. As per provisions of Article 65 Limitation Act, a mere RSA-1374-2011 7 squatting over the suit property for how much long time, he may be squatting, does not got his possession matured into title by way of adverse possession. As the appellants have never raised the plea of adverse possession, no issue to this effect was framed. The plaintiff neither produced nor tried to rebut the evidence to this effect. Both the Courts below have decreed the suit of the respondent-plaintiff after proper appraisal of evidence on record calling for no interference in this appeal.
On careful consideration of the submissions of learned counsel for the parties and on perusal of record, the first question which invites attention in this appeal is as to whether appellants-defendants without any plea of adverse possession and its ingredients pleaded in the written statement, can claim that their title over the suit property has matured by way of adverse possession.
The citations referred by learned counsel for the appellants are not helpful to advance his submission that even if the plea of adverse possession has not been pleaded, still the Court can look into the same on the basis of evidence on record. Full Bench of this Court in case of Ram Niwas and another (supra), had observed as follows:-
"It is well settled that if the parties knew that a point arises in a case and they produce evidence on it, though it does not find place in the pleadings and no specific issue has been framed on it, the Court can still adjudicate thereon. None of the parties can be allowed to say that the Court cannot decide the matter because it was not raised in the pleadings. The matter is not res integra."
In that case, the plaintiff informing the defendant-appellant about the purchase of shop by him, sought the damages and eviction from the RSA-1374-2011 8 premises which the defendant-appellant contested by denying the title of the plaintiff. It was in this context, the Full Bench has observed in para 6 of the judgment, which reads as follows:-
"In the present case, a plea regarding title had been taken in the plaint and the appellant knew very well that the question of title was involved in the case. The plaintiff-respondent had led evidence in affirmative and the appellants in rebuttal in that regard. Now, they cannot be allowed to say that the question of title cannot be gone into. The observations of the Supreme Court are fully applicable to the case."
In case of P.Purshottam Reddy and another (supra), the plea was not taken by the plaintiff that the sale in question was hit by lis pendens. No pleading was averred in this regard, however, the evidence was led by the plaintiff. This point was argued and the Court had observed that defendant went to the trial with full knowledge that question of lis pendens was in issue.
In the present case, the facts are altogether different. In the earlier suit for injunction filed by the appellants Abdul Majid and others in the year 1989, specific plea was taken that they have become owner of the suit property by way of adverse possession. The findings in that suit regarding the plea of appellants was returned against them and defendants Abdul Majid and others felt satisfied with that finding and allowed the judgment to become final. The question here is not to see as to whether that finding is relevant or operate as res judicata against appellant but that appellants-defendants opted not to raise the plea of their title over the suit property having matured by way of adverse possession. In the written statement, the appellant has not only avoid it to raise the plea of adverse possession but this has been deliberately done as a specific plea was raised RSA-1374-2011 9 that the plaintiff is not the owner of the suit property and further that they are owners of the suit property.
In order to claim the title by way of adverse possession, it was incumbent on the appellants first to admit the title of respondent-plaintiff and then to claim their title by way of adverse possession by pleading required ingredients to prove that they have become owners of the suit property by way of adverse possession.
Hon'ble Supreme Court in case of Smt. V. Rajeshwari Vs. T.C. Saravanabava 2004(1) RCR (Civil) 498 has observed that the party claiming the adverse possession has to prove as to 'how and at what point of time, he started prescribing hostile title, was for him to plead and prove' this fact.
In case of D.N. Venkatarayappa and another Vs. State of Karnataka and others (1997) 7 Supreme Court Cases 567, Hon'ble Supreme Court observed as follows:-
"Therefore, in the absence of crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right, title and interest in the lands in question hostile to the right, title and interest of the original grantees, the petitioners cannot claim that they have perfected their title by adverse possession."
While dealing with concept of proof of adverse possession, Hon'ble Supreme Court in case of S.M. Karim Vs. Mst. Bibi Sakina AIR 1964 S.C. 1254 in para 5 of the judgment has observed as follows:-
"..................... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that RSA-1374-2011 10 the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. ........................"
In case of Annasaheb bapusaheb Patil and others Etc. Etc. Vs. Balwant and Balasaheb Babusaheb Patil (dead) by LRs and heirs AIR 1995 Supreme Court 895, Hon'ble Supreme Court observed in para 12 as follows:-
"13. Article 65 of the Schedule to the Limitation Act,1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person, who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. 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 of each case. The person, who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. RSA-1374-2011 11 The argument of learned senior counsel for appellants that even without pleading, the plea of defendants that they have become owners by way of adverse possession, could be proved, is without merit. The law of adverse possession ousts an owner of his title over his property on the basis of his inaction. This law as it exists, is extremely harsh for the true owner as it diverts him from his property and confers the title over an unauthorised occupant who has illegally taken possession of his property, as true owner. In order to apply this harsh provision to oust a true owner of his title over an immovable property, it is required that the person claiming his title by way of adverse possession should come up with a specific plea in this regard and plead the required ingredients to prove his title by way of adverse possession. In this case, the appellants have nowhere pleaded the ingredients of adverse possession that their possession was open, hostile, continuous, adverse and to the knowledge of the true owner for a period of more than 12 years. He has nowhere claimed as to when his possession became adverse. The classical requirement of adverse possession is that it should be 'nec vi nec clam nec precario'. Under Article 65 of the Limitation Act, suit for possession on the basis of title can be filed by the plaintiff and such a suit is to be filed within 12 years from the date, adverse possession has been claimed by the defendant. In this case, defendants have not claimed any such adverse possession, as such, the provisions of Article 65 Limitation Act are not attracted to this case. Mere long possession of the defendants over the suit land could not clothe them with any right to convert their possession into title. Once the plaintiff is proved to be the title holder of the suit property, then obviously, he has right to seek the possession thereof.
Learned senior counsel for the appellants in support of his RSA-1374-2011 12 arguments that the title of appellants has matured into adverse possession has referred to following citations:-
Santa Singh and others Vs. Rajinder Singh and others 1965 AIR (Punjab) 415; Rajender Singh and others Vs. Santa Singh and others 1973 AIR (SC) 2537; Dasrath Behera and others Vs. Katai Dei and others 1991 AIR (Orissa); Artabandhu Mohapatra and others Vs. Bisweswar bhutia and others 1979 AIR (Orissa) 110; Maidi Bhikashmiah and another Vs. Venugopalrao and others 1959 AIR (A.P.) 146; Parsinni (dead) by LRs Vs. Sukhi 1993(4) SCC 375; Rabindra Kumar Shaw and ors Vs. Tanusree Chatterjee 2006(1) Cal.L.J. 640 (Calcutta-DB); G. Gurucharanam Vs. R. Venkat Rao and others 1996(2) ICC 195; Roop Chand Vs. Avtar Singh and Ors. 2011 (2) Law Herald 1619; Smt. Tapsi Rani Das Vs. Sajal Das and others 2013 AIR (Gauhati) 100; Jarnail Singh and others Vs. Kehar Singh and another 2010 (5) R.C.R. (Civil) 613;
Rajib Lochan Patel Vs. Sapneswar Pandey and others 1995 AIR Orissa 70; Amarjit Singh & Anr. Vs. Joginer Singh & Anr. 2009(4) Law Herald (P&H) 2863; Vidhyadhar Vs. Mankikrao and another 1999 AIR (SC) 1441; Gram Panchayat of village Naulakha Vs. Ujagar Singh 2000 AIR (SC) 3272; Pothula Rama Rathnam & Ors Vs. Gorle lavanyavathi 1998(2) Civ. C.C. 222; and Amritsar Diocesen Trust Association (Regd.) Amritsar Vs. Amritsar Diocesen Trust Association, Amritsar 1998(4) R.C.R. (Civil)
154. In view of my discussion in the foregoing paragraphs that in the absence of pleading, the plea of appellants that they have become owners by way of adverse possession, above citations require no detail discussion or are helpful to the appellants in any manner.
RSA-1374-2011 13
No other point has been urged calling for discussion. The finding arrived at by the first Appellate Court, call for no interference No question of law, what to talk of substantial question of law, requiring determination arses in this appeal, which has no merits. Dismissed.
( SURINDER GUPTA ) November 19, 2014. JUDGE Sachin M.