Punjab-Haryana High Court
(O&M;)Ram Sarup vs Tara Chand on 29 November, 2014
Author: Shekher Dhawan
Bench: Shekher Dhawan
RSA No.2601 of 1988 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
RSA No.2601 of 1988
Date of Decision: 29.11.2014
Ram Sarup (since deceased) through LRs and others
..... APPELLANTS
VERSUS
Tara Chand and others
..... RESPONDENTS
PRESENT: - Mr. Harish Nain, Advocate
for the appellants.
Mr. C.B. Kaushik, Advocate
for the respondents.
CORAM: HON'BLE MR. JUSTICE SHEKHER DHAWAN
SHEKHER DHAWAN, J.
This Regular Second Appeal directed against judgment and decree dated 04.10.1988 passed by the Court of learned Additional District Judge-II, Bhiwani whereby appeal filed by the defendants- appellants was dismissed.
For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit.
The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff-Smt. Sukhdei had filed a suit for declaration that she is the JYOTI 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 2 absolute owner in possession of the plot in question. Subsequently, the plaintiff amended the plaint to claim the relief of possession also in respect of 2/3rd portion of the said plot alleged to be in possession of defendants.
As per plaintiff, plot in dispute was the municipal land. Vide resolution No.4 dated 31.12.1956, the Municipality proposed to dispose of the same and the Deputy Commissioner, Hissar accepted the proposal of sale. As per plaintiff, a sum of `215/- was deposited with the Municipality, Bhiwani to purchase the plot in question and another sum of `645/- on 06.09.1957 and after making payment of `860/-, the plaintiff had discharged her liability. Municipality, Bhiwani executed the sale deed dated 17.09.1957 and the same was got registered. As per plaintiff, she is the exclusive owner in possession of the plot. However, during pendency of the suit, defendant No.1 forcibly dispossessed the plaintiff from a portion of the plot situated on the southern side. Defendant No.2 also took forcible possession of the part of the plot adjacent to the property encroached upon by defendant No.1. The case of defendants is that Faqir Chand (husband of plaintiff-Smt. Sukhdei) and the defendants are real brothers and constituted a joint Hindu Family. The property in question was purchased in the name of deceased Faqir Chand being karta of the family. The funds were arranged by the Joint Hindu Family. It was a case of benami transaction in the name of plaintiff and the sale deed was got executed in her favour as a mark of respect being the eldest lady in the family. The plot in question was joint and now the same has been shown as partitioned. The southern portion of the same fell to the share of defendant No.1, the middle one to the share of defendant No.2 and northern portion to the share of the plaintiff where she JYOTI 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 3 had constructed a 'Madhi' and since then they are in exclusive possession of their respective shares. The defendants have also come with alternative plea that they are owners by way of adverse possession. The pleas were also raised that the plaintiff is estopped from filing the suit and the present suit is not maintainable.
Learned trial Court settled the following issues and the parties were put to trial:
"1. Whether the plaintiff is owner in possession of plot in dispute? OPP
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the plaintiff has no locus standi or to file the suit? OPD
4. Whether plaintiff is estopped by her act and conduct from filing the present suit? OPD
5. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
6. Whether the suit is bad for non joinder of necessary parties? OPD
7. Whether the house in dispute was purchased for the requirement of plaintiff with the Joint Family Funds as alleged if so its effect? OPD
8. Relief."
Both the parties led their respective evidence. The learned trial Court decided issue Nos.1 and 2 in favour of the plaintiff. Issues No.3, 4 and 6 were also decided in favour of the plaintiff whereas issue No.5 was decided in favour of the defendants and consequently, the suit of the plaintiff was decreed declaring the plaintiff to be the absolute JYOTI owner in possession of the part of the suit land. However, the relief of 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 4 possession was given subject to the condition of deposit of Court fees within the period of 15 days.
Being aggrieved of passing of judgment and decree dated 26.11.1987, the findings having been returned against the defendants. The defendants have preferred appeal before learned Additional District Judge- II, Bhiwani and the defendants-appellants remained unsuccessful as the appeal was dismissed on 04.10.1988. Hence, this Regular Second Appeal before this Court.
When the appeal was admitted, no substantial question of law was framed. Even no substantial question of law has been placed on record during the pendency of appeal. However, at the time of arguments, learned counsel for the appellants has submitted that following substantial question of law is involved in this second appeal for consideration by this Court:
"Whether findings recorded by the lower Appellate Court are perverse, illegal or based on misreading of the evidence?"
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellants has contended that in fact the plot was purchased out of joint funds. The auction was held in favour of husband of plaintiff and at that time sale deed was got executed in favour of plaintiff being elder lady of the family. The funds were arranged out of joint family. Even Tara Chand appeared on behalf of the defendants at the time of execution of sale deed and that fact establish the version that the property was purchased out of joint funds by the Joint Hindu Family and the property JYOTI 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 5 was purchased in the name of the plaintiff being elderly lady. The oral evidence regarding possession is supporting the case of defendants- appellants but learned Courts below have misread the evidence which resulted into erroneous findings by the Courts below.
However, learned counsel for the respondents took the plea that both the Courts below have returned findings in favour of respondents- plaintiff. The sale is in the name of plaintiff in regular manner. The plea of benami transaction is not tenable as per law. Mere signing of sale deed as witness does not mean that the appellants-defendants are also the joint owners of the property. The plea of adverse possession is not tenable in this case because on the one hand, the appellants are claiming themselves to be owner of the property and at the same time they are claiming ownership by way of adverse possession.
Learned First Appellate Court has recorded findings to the effect that at the time of auction by Municipality, Bhiwani Faqir Chand was a highest bidder, who was none else but husband of Sukhdei-plaintiff. Thereafter, Faqir Chand had died. Balance amount was paid by Smt. Sukhdei. The sale deed was executed and registered in favour of Smt. Sukhdei. She has constructed a Madhi. The specific findings were recorded that the question of purchasing plot in the name of Sukhdei by appellants Lillu and Ram Saroop as benami does not arise. The findings were recorded on the basis of facts and evidence available on the file that Sukhdei is the absolute owner of the property in dispute. By storing fuel wood and tethering cattle, Lilu and Ram Saroop have encroached upon 2/3rd portion of the land whereas they have failed to establish their right of adverse JYOTI 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 6 possession or in their capacity as owner based on benami transaction.
Learned First Appellate Court rightly declared Smt. Sukhdei to be the owner of the plot in question and she is already in possession of 1/3rd share of the plot as exclusive owner whereas 2/3rd share of the plot is in possession of appellants-respondents.
The aforesaid findings of the fact have been recorded by the Lower Appellate Court on the basis of available evidence and the findings given by the Court of first instance have been rightly modified to some extent. As a matter of fact, the appellants in the instant appeal want to challenge the pure findings of fact which cannot be allowed by this Court in second appeal under Section 100 C.P.C. The findings with regard to ownership and possession are pure questions of fact and cannot be interfered with in the second appeal. In this regard, reliance can be placed upon 'Shankar Sidduba (D) By LRs. Vs. Ratna Bai JT 2002(5) SC 378 wherein it has been held as under:
"6. When the courts below had concurrently taken the view on the question of fact particularly who was in possession of the suit land in question, we do not think the High Court was justified in side-tracking that aspect of the matter and examine other aspects and give a finding in favour of the respondent. We set aside the order made by the High Court and restore that of the first appellate court affirming the decree made by the trial court dismissing the suit."
Even otherwise, a person cannot seek declaration on the basis of adverse possession. What he can do is to defend his dispossession as defendant as has been held by Hon'ble Supreme Court in Gurudwara JYOTI Sahib Vs. Gram Panchayat village Sirthala and another 2013 (4) R.C.R. 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh RSA No.2601 of 1988 7 (Civil) 703. Learned counsel for the appellant has failed to show that findings of fact recorded by the lower Appellate Court are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal. Consequently, said findings recorded by the lower Appellate Court do not warrant interference in this second appeal.
No other point has been urged.
Dismissed.
Costs made easy.
(SHEKHER DHAWAN) JUDGE November 29, 2014 jt JYOTI 2014.12.01 10:09 I attest to the accuracy and authenticity of this document High Court Chandigarh