Uttarakhand High Court
Gayasuddin Alias Raju vs Shri Jitendra Singh Sarna on 7 January, 2016
Equivalent citations: AIR 2016 UTTARAKHAND 63, (2016) 1 UC 468, (2016) 164 ALLINDCAS 793 (UTR), (2016) 3 ALL RENTCAS 222, (2016) 116 ALL LR 293
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No.7 of 2014
Gayasuddin @ Raju,
S/o Hafiz Ullah,
R/o Near C.R.S.T. Inter College,
Mallital, Nainital (Uttarakhand) .... Appellant
Versus
Shri Jintendra Singh Sarna,
S/o Shri Jagdish Singh Sarna,
R/o Snowden Compound,
Nainital (Uttarakhand) ... Respondent
Mr. T.A. Khan, Sr. Advocate, assisted by Mr. A.K. Arya, Advocate for the
appellant.
Mr. Sharad Sharma, Sr. Advocate, assisted by Ms. Indu Sharma, Advocate
for the respondent.
Judgment reserved on :4.1.2016
Judgment delivered on :7.1.2016
Hon'ble Servesh Kumar Gupta, J.
By way of this appeal, the judgment and order dated 4.12.2013 rendered by Civil Judge (Senior Division) is under challenge, whereby the Suit No. 72/2008 was decreed and the defendant was directed to vacate the premises in question and hand over the possession of the same within two months of such judgment. He was further directed to remove the unauthorized constructions on the same nay the payment of mesne profits @ Rs. 30/- per day during the pendency of the suit up to the recovery of the possession.
Having heard learned Senior Counsels of either parties, it is evident that having purchased the property, in question, which is described in detail in the last paragraph of the plaint, vide sale deed dated 30.6.2008, Jintendra Singh Sarna launched the suit on 7.7.2008 against the defendant Gayasuddin @ Raju for recovery of possession and dispossession of 2 the defendant. The mandatory injunction was also sought against him to remove all his materials/constructions from the said land. That apart, mesne profit and damages were also claimed.
After the direction of a coordinate Bench of this Court for early disposal, the suit could be adjudicated, as indicated above, whereagainst this appeal has been preferred. At the outset, it is pertinent to mention that after staying the effect and operation of the judgment at the time of admission, learned Counsel of the appellant did not show any inclination, despite being asked, to receive the paper book and argue the matter, and at last the Court made the conditional order of vacating the interim stay if the appeal is not argued. Only then the matter could be heard with a further attempt to prolong the hearing by moving one application or the other and such applications were rejected by this Court on 4.1.2016 by passing the orders on merit.
Further, this fact can also be noticed that despite of orders of this Court to pay the arrears @ Rs. 2,000/- per month w.e.f. 1.3.2015, nothing has been brought on record to show that mesne profits, as directed by learned Trial Judge as well as by this Court, has ever been paid to the plaintiff respondent. So, that way Mr. Gayasuddin has shown his defaulter attitude in compliance to the orders of this Court.
Now, I come to the merits. I feel that it will be of no utility to burden this judgment by repeating the pleadings of either parties as the same have amply been narrated in paragraphs 2 to 4 of the impugned judgment, suffice to focus the attention on the issues framed by the Trial Court which are as under:
3(i) Whether the plaintiff is the owner of the disputed property? If yes, the effect thereof?
(ii) Whether the defendant is the illegal occupant of such property? If yes, the effect thereof?
(iii) Whether the defendant has raised the constructions illegally on such property without permission/consent of plaintiff or his predecessor entitled?
(iv) The payment of Court Fees.
(v) Whether the suit is barred by the time limitation?
(vi) Whether the rights of the plaintiff have matured over the property in question as adverse possessor?
(vii) Relief.
Issues no. 1, 2 and 3 are interlinked. So, these are being dealt with together.
As regards the determination of ownership of the property, in question, is concerned, although it has widely been discussed with all supporting evidence by the Trial Judge, even though I would like to reappreciate the same as under:
Evidently, the property in question was part of a large property owned by Methodist Church in Southern Asia (Division of Home and Foreign Mission of Methodist Church), which was sold by the duly constituted agent/authorized officer of the Church, rev. Harry Hansonweet to Kishori Lal Sah and Lala Parma Sah on 1.3.1943. They were the real brothers of one Chiranji Lal Sah and on account of family settlement regarding the properties owned by all the brothers on dated 31.3.1946, a memorandum was written on 26.9.1947 and 31.12.1947, which were 4 duly registered by all the brothers in the office of Sub Registrar, Nainital on 5.1.1948 (available on the record). One part of the property so purchased vide deed dated 1.3.1943 fell in the share of one of the brothers Chiranji Lal Sah. This 1/4th part has been enumerated as the Harmony Hall and the Courtyard (Ahata) of the same. So, here the argument of learned Senior Counsel for the appellant is that out of the total area of 1805 Square Yards (16245 sq. feet) of the Harmony Hall, Mr. Chiranji Lal Sah could have been the owner of only 1/4th, which ought not to have been more than 4061 sq. feet. This contention is not acceptable for the reason that even in the sale deed dated 1.3.1943, the property sold was not strictly 1805 sq. yards, but it has been described in such measurement with the words "more or less". On the same lines, when the family settlement was written between all the brothers, then also the property which fell in the share of Chiranji Lal Sah was described as 1/4th part of "Harmony Hall and Courtyard of the same". This way, the contention of learned Senior Counsel is unacceptable and the area of land, which fell in the share of predecessor intitle of the plaintiff, is clear from another settlement dated 9.1.1975 entered into between the heirs of Charanji Lal Sah.
Contention of learned Senior Counsel that no paper regarding such settlement has been produced is unacceptable for the reason that it is a settled law of the land that the family settlement can be put into practice even by the conduct of the members of such family. In course of time, the members of such family may reduce the same in the form of memorandum, but such memorandum is not required any 5 registration under the law. Registration is required only when the property is partitioned by meets and bounds on the basis of such document. In this regard, the celebrated judgment of the Constitution Bench of the Hon'ble Apex Court rendered in Kale & Others v. Deputy Director of Consolidation and Others, 1976 AIR SC 807, is prevailing even today.
By the aforesaid family settlement, the property in question fell in the share of Smt. Nandi Devi Sah, W/o Chiranji Lal Sah, and she became the absolute owner of the same. It appears that further there was some understanding between Devi Lal, Sundar Lal (real brothers of Chiranji Lal Sah), Sudhir Sah, Arun Sah, Prabhat Sah and Santos Kumar (heirs of another brother) at one hand and Smt. Nandi Devi Sah at another. So, on account of that understanding, they moved to the Municipality and by the resolution no. 08 dated 1.10.1983, the Municipality accepted such understanding, which is available on the record. It shows that the property, in question, (shown with green colour) was again subjected to partition among all these aforenamed persons and this green coloured property was accepted by all the heirs in the name of Smt. Nandi Devi Sah and such partition is available with the map on the lower court record as Paper No. 87Ga/1, which is duly attested by the Executive Officer of the Municipality and perhaps it escaped the notice of learned Senior Counsel for the appellant.
After the death of Smt. Nandi Devi Sah, family settlement was again entered into between all the surviving heirs of Smt. Nandi Devi Sah who were the real brothers, namely, Kailash Chand Sah, Chandra Mohan Sah, Mohan Lal Sah and Ganesh Lal 6 Sah and by this family settlement entered on 12.10.1989, property was succeeded by Kailash Chand Sah. It is evident from the Resolution No. 17 dated 5.9.1998 passed by the Committee of the Municipality on the application of Kailash Chand Sah moved by him on 2.9.1997. Kailash Chand Sah died on 4.1.2002 and on his death, such property was succeeded by his wife Smt. Daya Sah. Her name was mutated by the Municipality vide Resolution No. 34/30.7.2005 on the application moved by Rajesh Sah (S/o Kailasch Chand Sah). It was again based on the family settlement. This way, Smt. Daya Sah became the absolute owner of the 1/4th part of the Harmony Hall along with the appurtenant courtyard. Out of the whole property, which was accepted by all her sons under her title, she executed the sale deed dated 30.6.2008 in favour of the plaintiff Mr. Jitendra Singh Sarna and this land was so integral part of the rest of the land that it could not be separated without removing the wholly provisional temporary structure of tin-shed and the space occupied by the defendant by placing the trash/rubbish material on the spot. So, he instituted the suit, as discussed above.
That apart, after purchasing this land, his name was mutated in the Municipality records by Resolution No. 10/9.7.2009 and such resolution is available on the lower court record. Therefore, there remains no doubt about the ownership of the plaintiff over the land in question.
As regards the illegal occupation of the defendant, it is as clear as the broad daylight. It is pertinent to mention that the defendant instituted Original Suit No. 184/1995 on 29.8.1995 seeking 7 injunction against Kailash Chand Sah with the averment that he was in the possession of the property since the last 20 years. In the opening paragraph of such suit, he averred to be in the peaceful possession of the land which he described as "Lavaris & Faltu" and that original suit was duly resisted by immediately filing the written statement by Kailash Chand Sah and wherein Mr. Sah also moved an application on 22.11.1995 seeking direction from the Court against the plaintiff Gayasuddin to remove the construction raised by him on such property. It was argued by learned Senior Counsel of the respondent that such suit was not even sincerely pursued by Mr. Gayasuddin and ultimately it was permitted to be dismissed in non-prosecution on 23.11.2005. Although it was restored many a times, but the cost for such restoration was never paid and after the death of Kailash Chand Sah, the appellant never moved any application for substituting his heirs. So, ultimately it met the fate of dismissal in non-prosecution on 28.11.2007 and the certified copies of all the orders are available in the record of lower court.
Fortiori, in paragraphs 17 and 22 of the written statement filed by Mr. Gayasuddin in the Original Suit No. 72/2008, he has denied the ownership of the plaintiff and has again pleaded that the property, in question, is Lavaris one and he is in peaceful possession over the period of last 37 years. In his statement before the lower court on dated 25.9.2013, he has deposed that he put himself in possession of such property by asking from some churchman. This has been discussed hereinabove 8 that the Church, after executing the sale deed way back in 1943, had no connection with this property. Had Mr. Gayasuddin put himself in the possession of such land after asking from such person (if any), then it was altogether an illegal act.
It appears that the Municipality and further the Lake Development Authority had issued repeated notice to Gayasuddin asking him to remove the illegal provisional construction of tin-shed, etc. which he has raised on the property, in question, but he did not pay any heed.
Learned Senior Counsel of the appellant has referred two reports of the Advocate Commission dated 4.9.1995 and 18.5.2000 in the Original Suit No. 184/1995, but such reports had never undergone the test of evidence as envisaged under Order 26 Rule 10 of the Civil Procedure Code. Further, that original suit was not got adjudicated on account of the laches and reluctance on the part of Gayasuddin, so it was ultimately dismissed in non-prosecution. Such Commission Reports, although were not admissible even in Suit No. 184/1995 without going under the test of evidence under Order 26 Rule 10 CPC, much less in the present suit. Even though, at the most there show the illegal temporary tin-shed and rubbish structure raised by Gayasuddin at the spot.
It was argued by the learned Senior Counsel of the respondent that when the Municipality issued the notice on 30.3.1996 for demolition of the unwanted structure raised by Mr. Gayasuddin on the spot, then he instituted an Original Suit No. 29/2000 against the Municipality claiming himself to be the owner of the plot. Plaint of such suit is available on 9 the lower court record as Paper No. 23Ga/2 and such suit was dismissed on merits by the learned Civil Judge (Senior Division), Nainital on 4.4.2007, which is evident from the certified copy of the judgment, Paper No. 23Ga/6 in the lower court record.
That apart, independent proceedings were launched by the Lake Development Authority as Case No. 123/1995 asking Mr. Gayasuddin to remove the unauthorized constructions and ultimately demolition order was passed on 30.3.1996, whereagainst he preferred the Original Suit No. 99/1996, which was dismissed on 1.5.1997.
All these arguments have not been answered and refuted by learned Senior Counsel of the appellant. So, it is amply clear that the possession of the appellant Gayasuddin is totally illegal at the spot and the effect of finding of the learned Trial Judge, affirmed by this Court too, is that the appellant is not entitled to retain the possession on the property, in question, even for a moment and Jitendra Singh Sarna is well within his legal rights to remove the illegal occupation of the appellant by executing the decree of the Court.
So, all these three issues 1 to 3 are decided accordingly.
Issue no. 4 deals with the payment of Court Fees and that has not been agitated by either of the parties, much less the same was adjudicated by the learned Trial Judge before proceeding with the suit. So, now it has lost its relevance.
Issues no. 5 and 6 are interlinked, hence are being taken together for the adjudication.
10The contention of the learned Senior Counsel for the appellant is that the rights of Gayasuddin have matured as adverse possessor on the spot. This argument is wholly untenable. It has already been discussed by this Court too while adjudicating issues no. 1 to 3 that Mr. Gayasuddin's possession was not adverse, but illegal in nature. He himself has accepted in his averments about having taken possession over this land deeming it as Lavaris and Faltu. Adverse possession can only be claimed against the true owner of the property. There was no such case of him from the very beginning of the litigation. Appellant has lost his litigation on all the fronts i.e. Municipality, Lake Development Authority as well as against the predecessor intitle and despite all this, he did not make the payment of mesne profits as directed by the learned Trial Judge as well as by this Court.
Learned Senior Counsel of the appellant has unsuccessfully strived to stress on the application of Article 64 and 65 of the Limitation Act, 1963. On bare reading of Article 64, it is evidently clear that the application of this provision is not at all attracted in the present controversy because the plaintiff has filed the suit not claiming his previous possession and dispossession or discontinuance of possession at the hands of Mr. Gayasuddin.
As regards the application of Article 65, in my considered view, this too is not applicable because the possession of Mr. Gayasuddin, although not adverse in nature, but wholly illegal (did not mature the 12 years even as against the plaintiff Mr. Sarna). The legislature in its wisdom has prescribed the time 11 span of 12 years "when the possession of the defendant becomes adverse to the plaintiff" and not "when the possession of the defendant becomes adverse to the plaintiff or his predecessor intitle". When Mr. Sarna purchased the land on 30.6.2008, then there was no question of maturing the possession by way of completing 12 years as adverse in nature against Mr. Sarna because he instituted the present suit no. 72/2008 on 7.7.2008 itself i.e. just after a week of purchasing the land.
Further, the Hon'ble Apex Court in its judgment, State of Haryana v. Mukesh Kumar & others, 2012 (115) RD 349, has come down heavily on the existence of Article 65 itself in the Limitation Act. It would be worthwhile to reproduce the paragraphs 45, 46, 47, 48 and 50 of such judgment, which read as under:
"44. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them.
45. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people.12
46. Adverse possession allows a trespasser- a person guilty of a tort, or even a crime, in the eyes of law- to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.
47. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.
48. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.
50. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law."13
In view of what has been stated above, I feel that both these issues no. 5 and 6 have rightly been decided by the learned Trial Judge and the same need no interference by this Court and the effect of such adjudication will result in eviction of Mr. Gayasuddin without any further delay.
Issue no. 7 pertains to the relief and it has already been manifested by this Court in the above issues.
All told, this appeal has no force and it is hereby dismissed with costs all throughout. Mr. Gayasuddin is directed to hand over the possession at the earliest, but not later than three weeks from today, after removing all his unauthorized provisional constructions of tin-shed on the brick walls and the entire trash/waste materials on the spot, failing which the Executing Court will execute the decree invoking all coercive measures against him including the recovery of arrears of mesne profits, as directed in the judgment of the Trial Court as well as by this Court in its order dated 5.3.2015 enhancing the same to the rate of Rs. 2,000/- per month w.e.f. 1.3.2015.
Let a copy of this judgment, along with lower court record, be sent to the Court below forthwith.
(Servesh Kumar Gupta, J.) Prabodh