Punjab-Haryana High Court
Matadin And Anr vs Om Parkash And Ors on 11 November, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
RSA No.1465 of 2012 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1465 of 2012
Date of decision : 11.11.2014
Matadin and another
... Appellants
Versus
Om Parkash and others
...Respondents
CORAM : HON'BLE MR.JUSTICE RAJ MOHAN SINGH
Present: Mr.Akshay Bhan, Sr. Advocate with
Mr.Santosh Devi Sharma, Advocate
for the appellants.
Mr.Jai Vir Yadav, Advocate
for the respondents.
Raj Mohan Singh, J.
1. Defendants No.1 and 2 are in appeal against concurrent judgments and decrees passed by the courts below, thereby decreeing the suit of the plaintiffs for declaration and possession to the effect that they are owner of property bearing Ahata No.2, Ghar No.2 in village Jiwara and defendants have been directed to hand-over the vacant possession of the property within the period of three months, failing which the plaintiffs are held entitled to take recourse to the assistance of the court.
2. Brief facts of the case are that the plaintiffs, Roshan Lal and Sher Singh filed a suit for declaration and possession with the pleadings that the plaintiffs are owner in possession of residential plot bearing Ahata No.2, Ghar No.2 situated in the residential area of village Jiwara, Tehsil and District Rewari which is duly shown by the letters 'ABCDEF' with red boundary line in the site plan, Exhibit PW-3/A. Revenue record viz. field map/ Naksha Abadi of the year 1865 has been relied by the plaintiffs.
3. The possession of the defendants No.1, 2 and 3 on Ahata No.2, Ghar No.2 on the portion marked by letters 'LBCDEM' and 'ENOF' is claimed to be illegal and un-authorized. Plaintiffs seek possession on the ground that on or about 20.08.2001, defendant No.1 had raised construction on the green portion marked by letters ENOF in the site plan. The construction of the SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 2 defendants was opposed by the plaintiffs and at that time, the defendants calimed that the disputed green portion is not part and parcel of Ahata No.2, Ghar No.2, rather defendants No.1 and 2 claimed the same to be part and parcel of Ahata No.3 which is owned by Shamlat deh and the respectables of the village advised them to get the land measured by the Local Commissioner. On 25.08.2001, the land was got measured by the Local Commissioner and it was found that the land in possession of defendant No.1 is part and parcel of Ahata No.2, Ghar No.2. Therefore, possession of the defendants over the green portion of land is claimed to be illegal and un-authorised and ejectment is sought. Shri Bhagwan and Dhani Ram have also raised construction on some portion of the land shown in brown colour in the site plan depicted by letters 'ALMENO' for which separate proceedings are pleaded to have been pressed into service.
4. The plaintiffs have pleaded that defendants No.1 and 2 have joined hands with defendant No.3. On 07.09.2001, the defendants forcibly occupied the portion marked by letters 'LBCDEM' and defendants No.1, 2 and 3 have raised joint wall shown by letters 'MX' in the site plan. The possession of defendants No.1 and 2 is illegal and unauthorized on the portion marked by letters 'DXME' and 'ENOF' whereas defendant No.3 is in illegal possession of portion marked by letters 'CXLB' of the plot in question which is owned by the plaintiffs. The wall in question 'MX' is claimed to have been raised on 07.09.2001 when the civil courts were closed.
5. On 20.08.2001, defendants No.1 and 2 disclosed to the plaintiffs that they have purchased some land from Laxmi Narain and Puran Chand vide sale deed dated 13.08.2001, and in such circumstances, it was very necessary for the plaintiffs to get Ahata No.2, Ghar No.2 measured as purchased portion falls under Ahata No.2, Ghar No.2. The aforesaid sale deed is also claimed to be illegal, null and void, and is not binding upon the rights of the plaintiffs. Defendants No.1 and 2 have no right as Laxmi Narain and Puran Chand had no right in the suit land. The plaintiffs claimed themselves to be owner from the time of their forefathers. After the demarcation, the plaintiffs asked the defendants to remove the unauthorized possession, and on refusal by the defenants, the present civil suit No.588 of 2001 came to be instituted with the aforesaid pleadings.
6. Defendants No.1 and 2 contested the suit by filing the written SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 3 statement. After taking all the customary pleas, defendants No.1 and 2 have submitted that the suit land is not the part of Ahata No.2 Ghar No.2, nor the plaintiffs are owner of the same. The site plan adduced by the plaintiffs is also pleaded to be wrong, as wrong dimensions have been given therein. Defendants No.1 and 2 have claimed that portion 'ENOF' is owned and possessed by them and in the year 1972, construction was raised and nobody objected to the construction and since then, residential house of defendants No.1 and 2 is in existence on the site in question. Defendants No.1 and 2 relied upon their site plan Exhibit DW-1/B to contend that the portion shown in blue and purple colour were owned by Lakhmi Chand and Puran Chand. 1/5 th part of the same was purchased by Lakhmi Chand from his brother Braham Dutt on 03.02.1981 and thereafter, Lakhmi Chand and Puran Chand sold the same to Santosh Devi, defendant No.2 vide registered sale deed dated 13.08.2001 for a total sale consideration of Rs.50,000/-. Thereafter, Santosh Devi constructed the area so purchased which is shown in blue colour in the site plan. No person ever raised any objection. The area shown in purple colour is also owned by Santosh Devi but defendant No.3 Jawahar Singh illegally constructed the same for which defendant No.2 has stated that she will take appropriate action against Jawahar Singh.
7. Defendants No.1 and 2 have pleaded that the portion shown in green colour marked by letters 'ENOF' is in their possession and they have constructed the same in the year 1972, and the same is not part of Ahata No.2 Ghar No.2. No demarcation was done in their presence. They have pleaded that there is no connivance with defendant No.3, rather defendant No.3 has illegally encroached upon the area owned by Santosh Devi which is shown in purple colour for which Santosh Devi will take recourse to the proceedings separately. Joint wall is also denied, rather the same is claimed to have been constructed by Santosh Devi-defendant No.2 on 20.8.2001. The defendants have further pleaded that the sale in favour of Santosh Devi was very much in the knowledge of the plaintiffs, and the same does not fall in the area of Ahata No.2 Ghar No.2. The sale in favour of Santosh Devi is claimed to be a legal transaction. Other pleas of the plaintiffs were also denied.
8. Defendant No.3 in his written statement has taken a stand that the plaintiffs are not owners of the site in question nor their ancestors were owner of the suit land in the year 1865. Defendant No.3 has pleaded that he has raised SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 4 all the construction of his own in the presence of the plaintiffs. The land in question was purchased by the father of the defendant, Ramji Lal from Nathu Ram son of Het Ram son of Sadal, in the year 1938 in lieu of Rs.900/-. A writing has also been given by Nathu to Ramji Lal. Since the provisions of Transfer of Property Act were not applicable at that time in erstwhile Punjab, therefore, the writing remained to be unregistered. Similarly, defendants No.4 and 5 also filed the written statement on the line of defendants No.1 and 2. The plaintiffs filed the replication and after necessary pleadings, the following issues were framed:-
1. Whether the plaintiffs are owner in possession of a residential plot bearing Ahata No.2, House No.2 situated in ABCDEF in the site plan?OPP
2. Whether the possession of defendants no.1 to 3 is illegal and unauthorized and they are liable to be dispossessed?OPP
3. Whether the sale deed dated 13.08.2001 is illegal, null and void and not biding on the rights of the plaintiffs?OPP
4. Whether the suit of the plaintiffs is time barred? OPD
5. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD
6. Whether the suit is bad for affixation of less court fee?OPD
7. Whether the suit is bad for mis-joinder of cause of action?OPD
8. Relief."
9. The learned trial Court discussed issues No.1, 2 and 3 jointly and ultimately, on the basis of evidence, found that the suit land is part of Ahata No.2, Ghar No.2. Defendants No.1 and 2 could not state as to what is the number of this property. They have simply denied the case of the plaintiffs.
The village had the paimesh in which all the properties of the villages are having numbers. Ahata No.2, Ghar No.2 was in existence which was owned by Sadal son of Degh Raj which was being used as Gitwar. This fact has been corroborated from Naksha abadi. Naksha Abadi and paimesh abadi, Exhibits P-1 and P-2 show the property bearing Ahata No.2, Ghar No.2 as properties No.71-72. The Local Commissioner, PW-5 gave his report, Exhibit PW-5/B from which it is apparent that the suit land is part and parcel of Ahata No.2, Ghar No.2.
10. The defendants have claimed themselves to be owners from Naksha Paimesh prepared in the year 1938, Exhibit DX/2 as well as Exhibit 'DX'. Learned trial Court has observed that the possession of the defendants is found to be on the suit property even prior to 1978 and they have claimed their possession in the capacity of owners on the basis of sale deed. Defendants SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 5 No.4 and 5 have claimed their ownership on the basis of sale deed dated 03.02.1981 Exhibit DW-10/1 and defendants No.1 and 2 have derived their title from defendants No.4 and 5 on the basis of sale deed dated 13.08.2001 Exhibit DW-7/A. Since the initial onus was on the plaintiff and the plaintiff by virtue of showing his title since 1865 which is inconsonance with Sajra Naksha Abadi and the report of demarcation, therefore, onus shifts upon the defendants to prove their title. Defendants No.1 and 2 have claimed their title on the basis of sale deed dated 13.08.2001, whereas defendant No.3 has claimed title on the basis of sale deed dated 27.08.1938 for consideration of Rs.900/-. The witnesses of the aforesaid writing have already died and the original Tehrir has been placed on record as Exhibit DW-2/1 along with Hindi version Exhibit DW-2/B/1 respectively.
11 The provisions of Transfer of Property Act were not applicable in the year 1938, therefore, it has been pleaded that oral sale was permissible. Defendants No.1 and 2 have claimed their ownership on the basis of sale deed dated 13.08.2001, Exhibit DW-7/A and they have pleaded that after the Consolidation Scheme of 1865, there were three more schemes in the years 1877, 1906-07 and 1938-39 and the plaintiffs have not connected the title of the property vis-a-vis the aforesaid subsequent consolidation schemes. The plaintiffs were legally required to connect the title with the last settlement scheme. The learned trial Court discarded the plea of the defendants by observing that Provisions of Indian Registration Act were very much in force and the transaction of 1938 was legally required to be registered under Section 17 of the Evidence Act, and therefore, no valid title can be transferred. The vendors of defendants No.1 and 2 could not prove their title inasmuch as that they could not disclose as to how the property came to the defendants No.4 and
5. Moreover, the property having been found in Ahata No.2 Ghar No.2 cannot be presumed to be in the ownership of defendants. Learned trial court further observed that once the scheme of consolidation 1865 is established in which predecessors of the plaintiffs were found to be owner of the property, and they have not alienated the land thereafter. The defendants having, taken plea of subsequent consolidation schemes were legally required to prove the same with reference to evidence. The case of the plaintiffs is proved by pre-ponderence of evidence and probabilities and they have discharged the initial onus and thereafter onus shifted upon the defendants to establish and prove that by virtue SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 6 of subsequent consolidation schemes, the plaintiffs have lost their title.
12. Having failed to prove title on the basis of sale deed, the defendants took a somersault by arguing that they have become owner by virtue of adverse possession. Plea of adverse possession has not been pleaded by the defendants in the written statement. 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 plaintiffs. In view of this, learned trial court, ultimately held that the plaintiffs have been able to prove their title on the basis of sajra paimesh and report of Local Commissioner Exhibit PW-5/C. Though certain shortcomings were observed but those shortcomings were ultimately, held not to be sufficient for dismissal of the suit, because the demarcation has been admitted by DW-4 in his cross-examination, who says that the property was demarcated with the consent of the plaintiffs and defendants. The son of defendant No.3 was contacted as he was working in the office of Deputy Commissioner, Rewari. The presence of defendant No.1 was very much on the spot but he refused to sign, whereas the report was signed by many persons of the locality. Even the witnesses examined by defendants have claimed that their signatures were obtained at the bus-stand. This assertion does not stand to reasons as there was no reason for these persons to sign at the bus-stand at the instance of the revenue official. The conduct is beyond proportions and the learned trial court discarded the plea of the defendants and held that the report of Local Commissioner matches with the site plan of the plaintiffs, Exhibit PW-3/1 as well as from the site plan prepared by the Local Commissioner appointed by the court in the year 2001, Exhibit PW-2/3. The wall 'MX' is found to have been constructed at the time of filing of the suit which has been pointed out by the Local Commissioner PW-2 in his report Exhibit PW-2/4. Even though, the report of the Local Commissioner, Exhibit PW/5/B is not prepared strictly in consonance with the instructions of the Financial Commissioner and High Court Rules, but still the same cannot be thrown as a waste paper because it corroborates the case of the plaintiffs on the strength of probabilities and pre-ponderence of evidence. Even if Exhibits P1 and P-2 are not the documents of title, but the property in question being in abadi deh is duly reflected in the settlement document and thereafter, continuity is presumed unless and until the same is rebutted by the defendants for which SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 7 onus shifted upon them. Since the defendants have not been able to rebut the settlement document of 1865 which is found in consonance with the site plan of the plaintiffs as well sajra paimesh abadi, therefore, the learned trial court decreed the suit and the cross-examination of Local Commissioner, Exhibit PW-5 could not yield any incriminating facts in favour of the defendants. Mere long possession of the defendants cannot be equated with adverse possession. Therefore, the trial court held that the plaintiffs have been successful to establish their ownership and are entitled to possession. Issues No.1, 2 and 3 were jointly taken together and have been decided in favour of the plaintiffs.
13. Issue No.4 is found to be totally based upon the decision of issues No.1, 2 and 3 as the plea of adverse possession was very much discussed in deciding issues No.1, 2 and 3. Therefore, the suit is found to be within limitation in the absence of any plea of adverse possession proved in favour of the defendants. Therefore, issue No.4 is also decided on the basis of findings under issues No.1, 2 and 3.
14. Issue No.5 was also held dependent upon the findings under issue No.1, 2 and 3 and therefore, the same was also decided on the basis of findings recorded under issue Nos.1, 2 and 3. Issue No.6 was not pressed by defendant No.6
15. In Issue No.7, learned trial court has observed that since defendants No.1 and 2 on one hand and defendant No.3 on the other hand have their inter- se dispute and the plaintiffs have only one issue to the effect that they be declared owner and a decree for possession be granted in their favour. Therefore, this issue was also decided against the defendants. The suit has been decreed by the learned trial court vide judgment and decree dated 09.04.2009. Feeling aggrieved against the aforesaid judgment and decree, two sets of appeal were filed by the defendants. Civil Appeal RBT No.82 of 2009 was filed by the appellants-Mata din and Santosh Devi whereas Civil Appeal RBT No.85 of 2009 was filed by the legal representatives of Jawahar Singh, deceased. Matadin and Smt.Santosh Devi had claimed their title on the basis of sale deed dated 13.08.2001, whereas LRs of Jawahar Singh have claimed their ownership on the basis of writing dated 27.08.1938. Learned lower appellate court has decided both the appeals vide common judgment and decree dated 23.12.2011, thereby dismissing the appeals with costs.
16. Against the Civil Appeal RBT No.82 of 2009 dismissed by the SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 8 Lower Appellate Court, present RSA No.1465 of 2012 has been filed. However, no regular second appeal has been filed by the LRs of Jawahar Singh from Civil Appeal RBT-85 of 2009.
17. In this way, both the claims of defendants i.e. claim put forward by defendants No.1 and 2 on the basis of sale deed dated 13.08.2001 and claim of defendant No.3 on the basis of writing dated 27.08.1938 are found to be distinct in nature. Since the LRs of defendant No.3 have not preferred any Regular Second Appeal therefore, the findings recorded by the learned courts below would be taken to be final qua defendant No.3.
18. Learned counsel for both the parties have been heard.
19. Learned counsel for the appellants, Shri Akshay Bhan, Sr.Advocate with Shri Santosh Sharma, Advocate has argued that learned Lower Appellate Court has not given finding under all the issues as required under Order 41 Rule 23 CPC, therefore, the judgment rendered by the learned Lower Appellate Court is vitiated on that account. In support of the aforesaid contention, learned counsel has cited 2010 (2) PLR 235 titled Smt.Harjit Grewal and others vs. Dr.Vinod Kumar Batra and others. There cannot be any dispute on the aforesaid proposition of law. Question arises whether subject matter of all the issues are to be decided or issue-wise findings are to be given by the learned Lower Appellate Court. Since the trial court proceeded to club issue Nos.1, 2 and 3 and recorded the findings jointly, and thereafter remaining issues were also tested on the basis of findings recorded under issues No.1, 2 and 3, therefore, requirement of law in the considered opinion of this Court is that the subject matter of all the issues should be met properly by the learned Lower Appellate Court while deciding the appeal. After recording finding of fact under issues No.1, 2 and 3, learned trial court took up individual issues No.4 to 7 and on the basis of findings recorded under issues No.1, 2 and 3 tested the veracity and scope of these issues, and ultimately, held that these issues are dependent upon the findings of issues No.1, 2 and 3 except issue No.6 which was not pressed by the defendants, and issue No.7 which was found to be against the defendants themselves because they were having conflicting interest in the property according to their pleadings. In view of the matter, the learned trial court based its conclusion solely on the basis of findings recorded under issues no.1, 2 and 3. Learned Lower Appellate Court endorsed the findings recorded under issues No.1, 2 and 3 in substantial part SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 9 of the judgment. In the concluding part i.e. in para No.34, the learned Lower Appellate Court has observed that the court has considered the submissions made by the learned counsel for the appellants, and no illegality and perversity has been committed by the learned trial court while recording findings under all the issues in favour of the plaintiffs. When the issues No.1, 2 and 3 were collectively decided by the learned trial court and the learned lower appellate court has also endorsed the same findings, it cannot be objected on this premise that issues no.1, 2 and 3 have not been decided by the learned lower appellate court. Since issue No.4 is totally dependent upon the failure of plea of adverse possession in the defence, therefore, this issue is also dependent on the finding recorded under issues No.1, 2 and 3. Issue No.5 is also related issue and its finding were totally dependent upon the finding recorded under issues No.1, 2 and 3, therefore, the finding on issues No.1, 2 and 3 which were upheld by the learned lower appellate court, covers the finding of issue no.5. Issue No.6 was not pressed before the learned trial court, therefore, learned lower appellate court is also justified in saying that no illegality and perversity has been committed by the learned trial court. Issue No.7 is related to inter se conflict between defendants No.1 and 2 on one hand and defendant No.3 on the other hand. Since defendant No.3 has not filed any Regular Second Appeal against the same judgment and decree passed by the learned lower appellate Court, therefore, in view of the matter, it has necessary bearing on the case of the appellant also. In a way the findings recorded by the learned lower appellate court, have become final in view of no challenge having been made by defendant No.3.
20. During the course of arguments, learned counsel for the appellants has also emphasized upon the factum of oral sale and applicability of provisions of Transfer of Property Act, being not applicable in the State of Punjab and therefore, oral sale was claimed to be valid sale and therefore, claim of defendant No.3 is stated to be legal. This Court is unable to accept the plea of the appellants who are defendants No.1 and 2 only. The claim of oral sale based on writing dated 27.08.1938 is the claim projected by defendant No.3, who has already accepted the judgment and decree of the learned lower appellate court by not challenging the same in the form of any Regular Second Appeal, therefore, this argument is not available to the defendants No.1 and 2 in their appeal. On this premise, other related arguments of non-registration of SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 10 the writing dated 27.08.1938, the document being 30 years old draws presumption under Section 90 of the Evidence Act and exemption of such transactions under the provisions of Stamp Act, are not available to the defendants No.1 and 2 particularly in view of the fact that defendant No.3 has not come forward to file any regular second appeal.
21. Secondly, learned counsel for the appellants, has argued that plea of adverse possession even if not set up in the pleadings can be taken at any stage. In support of his arguments, learned counsel for the appellants has cited 1980 AIR (Patna) 113 titled Govind Yadav and others vs. Deoki Devi and others. In order to appreciate the aforesaid proposition, the concept of adverse possession has to be appreciated in the light of facts of the present case as well as the legal position of the subject matter.
22. A mere possession or permissive possession does not demonstrate spectrum of adverse possession. For claiming adverse possession, the defendants must prove that their possession, is "nec vi, nec clam, nec precario", i.e. peaceful, open and continuous. The possession should be actual, open, notorious, exclusive and continuous for the required time as provided in law. The necessary ingredients of adverse possession as enumerated in 2004 (2) RCR (Civil) 702 tilted as Karnataka Board Wakf Vs. Government of India are that the adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. A party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario"
i.e. peaceful, open and continuous and it should 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 original owner and is actual, visible, exclusive, hostile and continued over the statutory period.
23. Plea of adverse possession is not a pure question of law, rather it is a mixed question of law and facts. A person who claims adverse possession, must 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 other party (d) How long his possession had continued; (e)His possession was open and undisturbed .
24. Plea of adverse possession has no equities rather this right has some instinct of piratical rights. The person has to plead from what date his possession became adverse, and he must disclose the necessary ingredients in SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 11 his pleadings. Since the written statement filed by respondents are totally silent. There is no foundation on the aspect of adverse possession pleaded by the defendants in their written statement, therefore, the plea having been taken for the first time in arguments cannot be termed as a legal plea which can be raised at any stage. As earlier mentioned that plea of adverse possession is a mixed question of law and facts and therefore, it cannot be held to be a pure question of law.
25. The plea of adverse possession pre-supposes ownership in favour of the opposite party. The pleaded case of the defendants is revolving around their title on the basis of sale transactions, therefore, both the pleas are destructive in nature and cannot be allowed to be taken by the defendants at their convenience. In the absence of plea of adverse possession, the suit in question is found to be a title suit and therefore, is not barred by any limitation. The plea of adverse possession raised during the course of arguments, before the courts below as well as before this Court, is merely argumentative in nature as neither there was any pleadings in the written statement nor there was any issue. In the absence of any pleadings and issues, the courts below had no occasion to go into the said question. Since it is not a pure question of law, therefore, the plea was legally required to be tested on the touch stone of pleadings and evidence. In the cited judgment i.e. AIR, 1980 (Patna) 113 (supra),, the Court had the opportunity to decide a case in which plaintiff came to the court to claim adverse possession. The defendants came in appeal before the High Court against the judgment of reversal passed by the learned lower appellate court thereby decreeing the suit of the plaintiff for declaration of title on the basis of adverse possession. There is sea change in the legal proposition inasmuch as that plea of adverse possession is available as a defence only. The cited case cannot be considered to be having guiding principles of law as the facts involved therein are entirely different and the court itself has observed glaring facts in para Nos.18 and 19 of the said judgment which are as under:-
18. In support of his contention that the plea of title of adverse possession could not be raised for the first time in second appeal Sri Ghosh relied upon the Bench decision of this Court in Khub Lal Upadhya v. Jagdish Prasad Singh (AIR 1922 Pat 398). It is true that in that case a plea of title by adverse possession was not permitted to be raised for the first time in second appeal. But in that case, the defendants who wanted to raise the plea had not stated in their written statement the facts on which the plea was SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 12 based. It was in those circumstances that Das J. observed that if the defendants wanted to raise any question of fact "then it was obligatory on them to state those facts in the written statement and invite the Court to raise an issue on the particular facts alleged by them". Das J. also pointed out in that case that "there was no finding by the courts below when the appellants took possession of the property and in order to enable the Courts below to determine this point we would have to remand the case to the court below". I may point out that the case was distinguished in the case reported in (1967) ILR 46 Pat 1103. This contention of Sri Ghosh must, therefore, also fail.
19. I, therefore, hold that on the facts it is manifest that plaintiffs did acquire title to the suit lands by adverse possession thereof for more than 12 years that the right and the title of the defendants therein, if any, was extinguished and the plaintiffs had perfected their title thereto. Upon this finding, the appeal fails and it is, accordingly, dismissed.
In the circumstances of the case, there will be no order as to costs of this Court.
26. Thirdly, learned counsel has argued that according to Article 65 of the Limitation Act, limitation of 12 years is attracted for filing the suit from the possession of the defendants becoming adverse. Since no date of commencement of adverse possession is pleaded nor proved, and necessary ingredients of adverse possession are totally missing, therefore, plea of limitation is not attracted.
27. Lastly, learned counsel for the appellants has argued that Exhibits P-1 and P-2 are not the documents of title, therefore, plaintiffs have to stand on their own legs to prove their case and weakness of the case of the defendants cannot be read in favour of the plaintiffs. Once initial onus in the context of bandobast of 1865 is established with reference to title of the predecessor of the plaintiffs and the existing position arising out of the sajra paimesh and report of Local Commissioner on the spot, the initial onus stood discharged, and thereafter, if the defendants take up the plea of subsequent bandobast and their title based on sale transactions then onus shifts on the defendants to prove their case. Since the onus keeps on shifting, therefore, it was incumbent upon the defendants to prove that after the bandobast of 1865, there was change in the ownership of the plaintiffs and the continuity of entries in the record have been rebutted by any cogent evidence, thereby dis-entitling the plaintiffs from claiming title over the property. Since the civil cases are decided on the basis of pre-ponderence of probabilities and evidence, therefore, both the courts have appreciated the evidence in the light of material available on SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 13 record and such appreciation has not been shown to be based upon any misreading of evidence or resulted in any perversity. Report of the Local Commissioner even though found to be lacking on some particular has been accepted which depicts the true picture of the title of the plaintiffs being inconsonance with the present state of affairs prevailing on the site. The Local Commissioner, PW-2 who has proved his report Exhibit PW-2/4, has found, as a matter of fact, that wall Exhibit 'MX' is newly constructed wall and this report is sufficient to hold that suit property is part and parcel of Ahata No.2, Ghar No.2. Since the stand of the defendants from the very beginning is that suit property is not part of Ahata No.2, Ghar No.2, therefore, the defendants cannot be permitted to take U turn and they cannot turn around to assert that they are owner by virtue of sale deed dated 13.08.2001. No description of the property has been given in the aforesaid sale deed. Mere long possession does not confirm to the principle of adverse possession therefore, even if the defendants are found to be in long possession that itself does not confirm any title of adverse possession upon them.
28 The arguments of the leaned counsel for the respondents are fully inconsonance with the factual findings recorded by the courts below under issues No.1, 2 and 3. Learned counsel for the respondents has argued with reference to the pleadings that no such plea has been raised in the written statement and the categoric stand of the defendants in the written statement was that the suit property is not part of the Ahata No.2 Ghar No.2, therefore, now in view of the finding, the suit land to be a part and parcel of Ahata No.2, Ghara No.2, the defendants cannot plead adverse possession which was not their case in the pleadings. Since Exhibits P-1 and P-2 reflects the original ownership of Sadal and thereafter, continuity is presumed and there is no rebuttal evidence by the defendants despite arguing the factum of subsequent bandobast. The ownership of Sadal is proved on the principle of pre-ponderence of probabilities.
29. It is relevant to mention here that since defendant No.3 through his LRs has not ventured to file any regular second appeal, therefore, the findings recorded in the judgment and decree by learned lower appellate court have become final and it has necessary bearing on the case of the present appellant also.
30. After having considered the matter in detail, this Court does not SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1465 of 2012 14 find any law point worth cognizance involved in the case. Consequently, the appeal is dismissed.
[Raj Mohan Singh] Judge 11.11.2014 sd SACHIN SHARMA 2014.11.18 10:56 I attest to the accuracy and authenticity of this document Chandigarh