Uttarakhand High Court
Smt Shanti Devi And Others vs Dr Rahul Khanna And Another on 9 August, 2016
Equivalent citations: AIR 2016 UTTARAKHAND 110, (2016) 4 CIVLJ 556, (2017) 1 ALL RENTCAS 127, (2017) 1 CIVILCOURTC 60, (2017) 134 REVDEC 372, (2017) 178 ALLINDCAS 913 (UTR), (2016) 119 ALL LR 873
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 54/2015
1. Smt. Shanti Devi
W/o late Sukhram
2. Suresh
S/o late Sukhram
3. Inder
S/o late Sukhram
4. Raju
S/o late Sukhram
All R/s 4, Old Survey Road, Dehradun
........Defendants/Appellants
Versus
1. Dr. Rahul Khanna
S/o Sri N.N. Khanna,
R/o 5, Medical Enclave,
B.H.U., Varanasi
Through authorized representative
Dr. Sandeep Ahuja, S/o Sri S.K. Ahuja,
R/o 4, Old Survey Road,
Dehradun.
.....Plaintiff/contesting Respondent
2. Sri S.C. Mathur
S/o Sri K.D. Mathur,
R/o 7/1 Shivam Vihar, Jakhan,
District Dehradun.
........Defendant no. 2/Pro-forma respondent
Mr. Mr. Siddhartha Singh, Advocate, for the appellants.
Mr. Shobhit Saharia and Mr. I.P. Kohli, Advocates, for the respondent
no. 1.
With
Second Appeal No. 57/2015
Sri S.C. Mathur
S/o Sri K.D. Mathur,
R/o 7/1, Shivam Vihar, Jakhan,
Dehradun . ........Appellant
Versus
2
1. Dr. Rahul Khanna
S/o Sri N.N. Khanna,
R/o 5, Medical Enclave,
B.H.U., Varanasi
Through representative
Dr. Sandeep Ahuja, S/o Sri S.K. Ahuja,
R/o 4, Old Survey Road,
Dehradun. .....Plaintiff/Respondent
2. Smt. Shanti Devi
W/o late Sri Sukhram,
R/o 4, Old Survey Road, Dehradun.
3. Sri Suresh
S/o late Sri Sukhram,
R/o 4, Old Survey Road, Dehradun.
4. Sri Inder Kumar
S/o late Sri Sukhram,
R/o 4, Old Survey Road, Dehradun.
5. Sri Raju
S/o late Sri Sukhram,
R/o 4, Old Survey Road, Dehradun.
........Defendants/Pro-forma respondents
Mr. Sharad Sharma, Sr. Advocate, assisted by Mr. Neeraj Garg, Advocate
for the appellant.
Mr. Shobhit Saharia and Mr. I.P. Kohli, Advocates, for the respondent no.
1.
Judgment reserved on: 3.8.2016
Judgment delivered on: 9.8.2016
Hon'ble Servesh Kumar Gupta, J.
Since both these appeals put challenge to the same judgment and order dated 28.2.2015 rendered by the 8th Additional District Judge, Dehradun while adjudicating the Civil Appeal No. 72/2010, Dr. Rahul Khanna v. Sukhram & Others, hence these are being taken up together for passing this verdict.
At the time of admission of Second Appeal No. 54/2015, following substantial question of law was formulated:
"Whether long peaceful, uninterrupted possession in knowledge of true owner can be 3 referred to as permissive possession when the occupier had raised constructions of permanent nature in knowledge of true owner?"
At the time of admission of Second Appeal No. 57/2015, following substantial questions of law were formulated:
"1. Whether plaintiff could have claimed any right over the property in question on the basis of alleged sale-deed dated 28.9.1991 allegedly executed by grandsons of late Rani Padmawati, who already lost her right/title over the property in question by virtue of Section 27 of the Limitation Act, on failure to institute suit for possession against defendant within prescribed period of limitation?
2. Whether once alleged Will dated 24.12.1975 in favour of predecessors in title of plaintiff was not proved in accordance with Section 63 of the Indian Succession Act, and Section 68 of the Indian Evidence Act, lower appellate court could have relied upon alleged sale-deed dated 28.9.1991 in favour of the plaintiff on the basis of alleged Will dated 24.12.1975?
3. Whether evidence of power of attorney holder of the plaintiff Rahul Khanna could be relied upon about the facts in the knowledge of Principal, except the acts and deeds performed by the agent?
4. Whether judgment and decree of lower appellate court is vitiated and is nonest for not framing and deciding the issues under Order 20 4 Rule 4 & 5 C.P.C./Points for determination under Order 41 Rule 31 C.P.C.?"
Since the question no. 1 in both these appeals are interlinked together, hence being taken up jointly for consideration. Before proceeding further to answer the questions, it would be pertinent to have a glance upon the brief facts of the case.
The property, in question, is a small part, ad measuring 40 x 100 ft. = 4000 sq. ft. (admitted by the defendant in his written statement), of a big land having a bungalow bearing the municipal no. 4, Old Survey Road, Dehradun. This big property initially was sprawling in more than 20 bighas of land, which was originally owned by Rani Padmawati inheriting the same after the death of her husband Maharaja Jagat Dev Singh. Since the area was not densely populated and this small piece of land was beside a canal and Rani Padmawati, residing in her palatial building situated in such sprawling campus, could not even soon notice as to which person has commenced living in one corner of such land after making the improvised arrangement for his dwelling. Since her only son Raja Shiv Ratan Devi Singh had already passed away and she had done the marriage of her two daughters Lalita Kumari and Snehlata in the affluent families of Delhi, hence at the age of 70 years, finding herself alone with the two grandsons, namely, Raja Satish Devi @ Ratish Dev and Raja Raman Dev, she executed a registered Will dated 24.12.1975 bequeathing all her estate to these grandsons. She passed away on 22.10.1977. So, this property was succeeded by these aforenamed grandsons. One of the grandsons Raja Raman Dev entered into an oral agreement in 1978 to sell this property to the owners of General Motors Stores and 5 such agreement was reduced in writing on 21.1.1983, registered on 29.1.1983. One additional agreement was also written on 3.7.1985 in favour of R.K. Ahuja and one partner of General Motors and this agreement was also got registered on 12.7.1985. As the second brother Raja Ratish Dev feeling annoyed with making the aforementioned agreement on the part of his brother Raja Raman Dev, so he instituted an Original Suit No. 64/1990 for partition against his brother and also impleaded Mr. Ahuja as well. It was decreed on 6.2.1990. Partition took place between both these brothers. Respective shares of both were demarcated. This way, now, Mr. Raman Dev became the absolute owner of his own part and through his power of attorney dated 10/12.4.1990, Kovind Ahuja S/o R.K. Ahuja executed the registered sale deed on 28.9.1991 in favour of Dr. Rahul Khanna.
Dr. Rahul Khanna revoked the licence of Sukhram by sending a registered notice on 18.6.1995, which was duly served on him on 20.6.1995. By this notice, Sukhram was asked to vacate the property, in question. When such notice could not render any positive response, then this Original Suit No. 200/1995 was instituted by Dr. Khanna through general power of attorney Mr. Vinay Verma. Since Dr. Rahul Khanna was the resident of Varanasi, hence he executed this power of attorney dated 3.9.1994 for the purpose. Mr. Verma, a resident of Dehradun town, launched the suit on 12.9.1995 asking Mr. Sukhram's eviction from the spot in question and recovery of possession.
All the facts, as have been highlighted above, were part of the pleadings of the plaint, but the defendant Sukhram resisted by way of filing the written statement and 6 claimed his ownership on such plot of land on the basis of his hostile possession. As per his averment, he was residing on such plot ever since 1948 and such fact was well within the knowledge of its initial owner Rani Padmawati.
After the exchange of pleadings, following issues were framed by the learned Trial Judge:
(i) Whether the plaintiff is the owner of disputed site and he permitted the defendant to reside thereon and whether such permission was revoked? If yes, its effect?
(ii) Whether plaintiff is entitled to receive the mesne profit? If yes, at what rate?
(iii) Whether the suit was undervalued?
(iv) Whether the Court Fee has been insufficiently paid?
(v) Whether the suit was barred under Order 7 Rule 11 CPC?
(vi) Whether the notice for revocation of license was wrongly issued? If yes, its effect?
(vii) Whether the description of the property in the plaint is erroneous?
(viii) Whether the suit is not maintainable?
(ix) What relief the plaintiff is entitled to?
It is evident that no question of any Will executed by Rani Padmawati and the sale deed executed in favour of Dr. Rahul Khanna was ever raised or agitated in the issues before the learned Trial Judge, and it was for the reason that such questions were not intensely and specifically agitated in the pleadings or at the time of framing the issues or even during the long pendency of such suit before the Trial Court inasmuch as for more than 15 years, yet the learned Trial Judge having discussed the validity of the 7 aforementioned Will and the sale deed dismissed the suit on 8.10.2010, whereagainst the Appeal No. 72/2010 was preferred on 15.10.2010.
Mr. Sukhram along with his son/grandson, soon after the dismissal of the suit in the Trial Court, executed a sale deed on 13.10.2010 of the questioned land (i.e. just after four days of such dismissal) in favour of Mr. S.C. Mathur. Therefore, Mr. Mathur sought his impleadment in the First Appeal which was allowed. Sukhram died on 23/24.3.2011. So, he was substituted by his successors i.e. wife and sons/grandsons to contest the First Appeal. This First Appeal was allowed by the learned Additional District Judge on 28.2.2015 decreeing the original suit. Learned Judge also issued orders that all respondents shall hand over the vacant peaceful possession of the property in question within two months and they will not raise any further construction on the same and will also not change its nature any more.
It may also be pertinent to mention that soon after the execution of the sale deed dated 13.10.2010, Mr. Mathur began to collect the construction materials including the bricks, as are shown in the photographs available on the record in order to raise construction of permanent nature, but since the ad interim injunction was issued just at the time of admission of the First Appeal, so his efforts could not fructified. Although he challenged such ad interim injunction by way of filing the writ petition in this Court, but the same had failed. Therefore, the bricks are lying at the spot in the same condition as manifested in the photographs.
I would also like to have a little mention about the nature of the tin-roofed entire construction, which was 8 raised by Mr. Sukhram for his provisional dwelling on the spot and this is evident from the photographs of 15.10.2010. These photographs are speaking in so many words what the whole structure was in the nature of temporary sheds, may be of 2-3 rooms and toilet, and was covered more prominently with the old tins. Otherwise also, looking to the probabilities of raising any permanent expensive construction on the spot, it was not possible for him being in the employment of Survey of India for cleansing purposes. There is ample evidence on the record including the public documents revealing that he remained in the employment of Survey of India w.e.f. 1.11.1967 to 31.5.1997. His wife, in her statement as DW1, has disclosed to be the mother of eight children. So, it may be assessed that at the most a Class IV employee, nurturing as many as eight children besides himself and his wife, would not have been able to construct a pucca house from his meagre salary.
Although as has been stated above, since there was no issue before the Trial Court regarding the validity of the Will executed by Rani Padmawati as well as the sale deed dated 28.9.1991, hence it was not desirable at all for the learned Trial Judge to deal with those points, yet going so deep in such issues and in determining them against the plaintiff was further altogether beyond the oral testimony as well as written documentary evidence on the record and that is why the learned First Appellate Judge was impelled to advert his views on such issues as well.
The whole gamut of arguments put forth by the learned Senior Counsel along with the assisting Counsels on behalf of the appellants is that Mr. Sukhram since had matured his possession inasmuch as creating the title on 9 the property in question at the strength of his long occupation on the same ever since 1948, hence Rani Padmawati had lost her ownership over the same. His adverse possession was on the spot for many more years than the last 12 years, hence the suit for eviction could not have been instituted being barred by Article 65 of the Indian Limitation Act.
This contention is unsubstantial to the core because the Court is of the firm view that Mr. Sukhram's possession was never adverse in nature. It appears that initially (but not certainly since 1948) in the old days, may be in the fifties or sixties, he, coming from his native district Bijnaur, started living in a small corner of this whole land sprawling inasmuch as 20 bighas beside a canal and this fact could not even be noticed by the old lady Rani Padmawati. Later on, it appears that his dwelling possession was not disturbed by that generous lady probably for the reason that he accepted to do some cleansing work in lieu of his habitat there and this fact finds support from the evidence of PW2 Sunil Tandon, who used to play badminton along with Ratish Dev Singh, the grandson of Rani Padmawati. He has deposed that Sukhram used to do cleansing work there and sometime used to tie the badminton net for the playing purpose. He has not admitted him even as a caretaker, but has confined his possession as a servant only. Therefore, his starting possession over this small plot of land, which probably could not be noticed earlier, became permissive in nature and then further converted into the status of a licensee some time later because he started to undertake some cleansing work under the command and directions of Rani Padmawati and her children in lieu of his dwelling at the 10 spot. At any rate, Mr. Sukhram could never have been conferred a title of such land even if his possession for a moment is accepted as adverse in nature because such nature of possession protects him against the institution of the suit for eviction, but by no stretch of imagination makes him the owner of the land inasmuch as making him entitled to execute the sale deed dated 13.10.2010 in favour of Mr. Mathur.
Law has been crystallised in this regard in a galaxy of judgments of the Hon'ble Apex Court. In the case of Thakur Kishan Singh (dead) v. Arvind Kumar, AIR 1995 SC 73, it was held that if a person was initially in permissive possession of land, then mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. Heavy burden lies on him to establish that it became adverse.
In the case of L.N. Aswathama & Another v. P. Prakash, (2009) 13 SCC 229, Hon'ble Apex Court held that long and continuous possession by itself would not amount to adverse possession if it was either permission or without animus possidendi. To establish claim of title by prescription, possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years.
Law laid down by the Hon'ble Supreme Court itself makes it clear that even if the claimant is in physical/actual, exclusive, open and uninterrupted possession, but if such possession was not notorious and hostile to the true owner, then it cannot be termed as adverse in nature.
11A Constitution Bench of the Hon'ble Apex Court in the case of Maria Margarida Sequeira Fernandes & Others v. Erasmo Jack De Sequeira (dead) through LRS, (2012) 5 SCC 370, has further made it clear that gratuitous or purely permissive possession cannot be equated with a trespassory possession and a caretaker being a gratuitous possessee, if institutes a suit for injunction against the owner/title holder of the property, then such suit was not maintainable. That is why Mr. Sukhram while initiating the Original Suit No. 610/2003, seeking injunction against the real owners of the land, did not press the same and withdrawn it because the law has been crystallised in this regard, as has been highlighted hereinabove in this judgment.
It is the settled law that adverse possession could have been a shield for continuing possession, but could not be used as a sword inasmuch as creating a title in favour of adverse possessee enabling him to execute the sale deed, as has been done by Sukhram in favour of Mr. Mathur. Execution of such sale deed by itself makes it clear that even if his rights have matured (although were not and could not), he had waived his license and parted away with his possession on the property in question, as such sale deed dated 13.10.2010 was having the clause of delivery of possession as well. Mr. Sukhram himself was not sure about acquiring the ownership over the land in question and that is the reason he introduced a clause in such sale deed that if at any point of time, Mr. Mathur is deprived the possession of such land, then he shall be entitled to recover the sale consideration from the vendor.
Hon'ble Apex Court while affirming the law laid down in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 12 SCC 249, and in another case Automobile Products India Ltd. v. Das John Peter, (2010) 12 SCC 593, had come down heavily on false claims and false defences in the following words:
"False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in the courts.
Hon'ble Supreme Court has further aptly observed that "unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. This problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings."13
Hon'ble Apex Court in the case of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalya Nandhavana Paripalania Sangam represented by its President & Others, (2012) 6 SCC 430, has further elaborately defined the nature of adverse possession and the locus standi of the gratuitous possessee/permissive possessee. It was laid down that the claim by watchman/caretaker/agent/servant, all of them being persons in gratuitous possession/permissive possession, then such person holds property on behalf of principal (owner) and acquires no right or interest therein irrespective of long stay or occupation. Mere production of ration card or house tax receipts by such person would not establish his claim of adverse possession.
In the golden words, the Hon'ble Supreme Court has defined the Court's duty to discern the truth as under:
"It is the bounden duty of the court to uphold the truth and do justice. The entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of the justice delivery system. It is imperative that pleadings and all other presentations before the court should be truthful."
Hon'ble Apex Court has further observed as under:
"Truth constituted an integral part of the justice delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell the truth in the courts irrespective of the consequences. However, 14 post-Independence period has seen drastic changes in our value system."
In the First Appeal file, several papers were produced by the appellant and filing of such papers was resisted by the defendants up to the level of High Court, but their efforts could not succeed and ultimately it was held that such papers will be seen at the time of writing the judgment. If I just have a look on the assessment list for taxes on the annual value of buildings and lands w.e.f. the period 1.4.1948 to 31.3.1953, this bungalow as well as appurtenant land was owned by Rani Padmawati, resident of 5 Raja Road, Dehradun. She herself was in the occupation of the same along with the garden thereon. The name of Mr. Sukhram nowhere appears.
After death of Rani Padmawati, in such municipal records w.e.f. 1.4.1973 to 31.3.1978 and even thereafter, the name of Raja Raman Dev Singh and Rajkumar Ratish Devi Singh appears as successor in interest/title with self occupation over the same and thereafter Dr. Rahul Khanna in addition to Sushant Ahuja, Master Chaitanya Ahuja, S.K. Ahuja, Sandeep Ahuja appears in the column of owner- cum-occupation of the land in question along with Ratish Dev Singh, who was the owner of half of the whole land. Here also the name of Mr. Sukhram does not appear anywhere.
Version of Sukhram that he had been in possession of this land ever since 1948 is wholly belied considering his date of birth, which is 26.5.1937, as certified by his employer in the relevant record. It means that at the age of 11 years, this small boy came from Bijnaur and established his adverse possession on the plot, 15 in question, which by no stretch of imagination could have been possible.
The certified copy of Will of Rani Padmawati and thereafter the sale deed in original are available on the record and these documents being the public documents coming from the office of Sub Registrar are admissible.
Argument of learned Counsel for the appellants that this Will or the sale deed could not be proved is wholly untenable for the reason that there was no need to prove this Will because the wife of Sukhram, the sole witness on behalf of the defendants, has admitted that after the death of Rani Padmawati, the property in question came in the ownership of her two grandsons. Since the contents of the sale deed have not been denied, so where was the need to examine its vendor in the witness box?
That apart, what was the reason that Mr. Sukhram could not muster courage ever to get himself examined in the witness box. If he had become too old and inform, then the Court could have been moved for his examination through the Advocate Commission. That too was not done. He would have been the best witness to reveal the truth regarding the nature of his possession over the land in question, but he never appeared. So, the plaintiff could not get an opportunity to cross-examine him on the question of nature of possession.
In view of what has been set forth above, I answer both these questions (question no. 1 in both the appeals) in favour of the plaintiff/first appellant and against the defendants/second appellants.
Now, the second substantial question of law is whether once alleged Will dated 24.12.1975 in favour of predecessors in title of plaintiff was not proved in 16 accordance with Section 63 of the Indian Succession Act, and Section 68 of the Indian Evidence Act, lower appellate court could have relied upon alleged sale-deed dated 28.9.1991 in favour of the plaintiff on the basis of alleged Will dated 24.12.1975?
Above substantial question of law has already been answered while dealing with the first question. To make it clear, I further answer it in favour of the plaintiff/first appellant and against the defendants/second appellants as has been expatiated in the body of judgment while adjudicating first question.
Third substantial question of law is whether evidence of power of attorney holder of the plaintiff Rahul Khanna could be relied upon about the facts in the knowledge of Principal, except the acts and deeds performed by the agent? This question was neither pleaded by the defendants ever nor any issue was agitated thereon during the trial. So, primarily such question cannot be raised at all at this stage. Law in this regard has been made clear by the Hon'ble Apex Court in Anathula Sudhakar v. P. Buchi Reddy (dead) by Lrs. & Others., 2008 SAR (Civil) 878 SC, wherein it was held that in second appeal, if the pleadings are not there, then the High Court was not justified in formulating a question of law in the absence of any pleading at the stage of second appeal under Section 100 CPC.
Even so, there remained no question, which could not be asked from the power of attorney holder of Dr. Rahul Khanna. Dr. Khanna himself resided in Varanasi and the power of attorney was in the name of Mr. Vinay Verma, who was living in Dehradun in the close vicinity of the property in question. Mr. Ahuja is a near relative of Dr. Khanna and was the resident of Dehradun town. So, the 17 facts could have been answered more elaborately and with clarity by such power of attorney holder, rather than Dr. Rahul Khanna. In any case, there was no prejudice by not producing Dr. Rahul Khanna in the evidence. The third substantial question of law is answered accordingly.
Fourth substantial question of law is whether judgment and decree of lower appellate court is vitiated and is nonest for not framing and deciding the issues under Order 20 Rule 4 & 5 C.P.C./Points for determination under Order 41 Rule 31 C.P.C.?
I do not agree with the learned Counsels of the second appellants because on perusal of the impugned judgment and order of the learned Additional District Judge does not give the impression that it remained failed to discuss or deal with the issues in controversy between the parties notwithstanding the exact number of such issues was not mentioned, but the issues in themselves have been dealt with comprehensively and justifiably in a systematic manner in such judgment. Mere failure to quote the number of particular issue before starting its discussion cannot vitiate any judgment. Therefore, I answer this question accordingly.
In view of what has been discussed hereinabove, I am of the considered view that these second appeals have no force and are liable to be dismissed. I dismiss both these appeals with direction to the defendants/second appellants to hand over the vacant peaceful possession of the property, in question, to the respondents within a period of thirty days along with the mesne profit, as has been decreed by the first appellate court.
Let the lower court records be sent back.
(Servesh Kumar Gupta, J.) Prabodh