PUNJAB AND HARYANA HIGH COURT
Before :- Hemant Gupta, J.
Regular Second Appeal No. 715 of 1999. D/d. 28.3.2007.
For the Appellants :- Mr. Sarjit Singh, Senior Advocate with Mr. Vikram Singh, Advocate.
Communist Party, Ropar and others - Appellants
Sant Saran Bhalla (Dead) through his L.Rs and Others - Respondents
For the Respondents :- Mr. J.R. Mittal, Senior Advocate with Mr. S.S. Salar, Advocate.
Hemant Gupta, J. - The defendants are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby suit for possession of land measuring 1 Kanal was decreed.
2. Originally, the plaintiffs filed a suit for permanent injunction restraining the defendants from raising any construction in the land measuring 2 Kanals. It was the case of the plaintiffs that they are owners in possession of the suit land and the defendants were trying to raise the construction illegally and forcibly. In the written statement dated 30.03.1989, it was pleaded that Communist Party, Ropar, is shown to be in possession of the land in dispute in the revenue record. On merits, it was pointed out that the defendants have become owners of land measuring 1 Kanal and the remaining portion is in possession of one Mistry Kartar Singh deceased since 1960. The defendants have raised construction over said 1 Kanal area consisting of one hall for holding the meetings, one kitchen and the courtyard. Such construction was raised after getting the site plan approved from the Municipality and the possession of the Communist Party was open and with the knowledge of the plaintiffs. The plaintiffs never objected to the possession of the party nor they have ever claimed any rent or lease money from the party.
3. An application for amendment of the plaintiff was filed on 10.09.1990 alleging therein that during the pendency of the suit, the defendants have forcibly raised construction in the part of the suit property. It was pointed out that the plaintiffs are residents of Delhi and as such they personally cannot come and look after the suit property. The defendants took advantage of the absence of the plaintiffs and have raised construction in part of the suit property. Thus, the plaintiffs claimed possession in respect of 1 Kanal of the suit property. The plaintiffs were permitted to amend the suit on 22.10.1990 subject to payment of Rs. 200/- as costs. On the next date i.e., on 5.11.1990, the amended plaint was permitted to be taken on record and the amended written statement was filed. The costs imposed were also paid. In reply to the amended plaint, it was stated that the defendants are enjoying the possession of the area measuring 2 Kanals since 28.02.1976 when the office building was inaugurated. The defendants have got the building constructed after getting the site plan sanctioned from the Municipal Committee, Ropar, and the plaintiffs never objected to the user of the suit property. The possession of the defendants has been open and hostile throughout these years commencing 28.3.1976. It was pleaded that the defendant Communist Party is owner of the suit property on account of their continuous hostile adverse possession to the notice of all including the plaintiffs.
4. On the basis of respective pleadings, following issues were framed :-
- 1. Whether the plaintiff is in possession of the land as owner ? OPP
- 2. Whether the suit is maintainable in the present form ? OPP
- 3. Whether the plaintiff is entitled to the injunction prayed for ? OPP
- 3A. Whether the defendants have forcibly raised the construction over the suit property during the pendency of the suit ? If so, its effect ? OPP
- 3B. Whether the defendant communist party has become owner by way of adverse possession ? Onus on defendants.
6. In appeal, learned first Appellate Court reversed the findings recorded by the learned trial Court and found that mere long possession is not indicative of adverse possession. It was found that documents Exhibits D-1 to D-6 produced by the defendants are insufficient to establish adverse possession of the defendants for a continuous period of 12 years or more and consequently decreed the suit.
7. The appellants have not framed any substantial question of law for consideration of this Court in second appeal but with the assistance of learned counsel for the parties, I have heard learned counsel in second appeal at great length.
8. Learned counsel for the appellants in the present second appeal has vehemently argued that the present suit is not based on title but on dispossession and, therefore, the suit is beyond the period of limitation prescribed. It was argued that the defendants are in possession since the year 1976 whereas possession has been claimed by the plaintiffs after the amendment in the year 1990 and, thus, claim of possession of the plaintiffs is beyond the period of 12 years in terms of Article 64 of the Limitation Act, 1963 (hereinafter to be referred as "the Act"). Reliance was placed upon Ramaiah v. N. Narayana Reddy (Dead) by L.Rs., 2004(3) RCR(Civil) 731 : AIR 2004 Supreme Court 4261 and Gram Panchayat of Village Naulakha v. Ujagar Singh and others, 2000(4) RCR(Civil) 749 : AIR 2000 Supreme Court 3272. It was also argued that since the amendment in the plaint was allowed in October, 1990, the amended suit for possession shall be deemed to be filed on the aforesaid date. Before the said date, the defendants have perfected their title on the basis of open, continuous and hostile possession since the year 1976. It is also argued that the plea of adverse possession raised by the defendants in the written statement is only an alternative plea whereas substantive plea of the appellants is that the suit is barred by limitation having been filed 12 years from the date of dispossession. It is also argued that none of the plaintiffs has appeared as a witness. One Shamsher Singh Josh has been examined as a witness on behalf of the plaintiffs but he is neither plaintiff nor the attorney. Still further, first appeal was filed on 14.11.1990 by all the plaintiffs but one Sant Saran Bhalla, one of the plaintiffs has died on 8.8.1994. The legal representatives of deceased Sant Saran Bhalla have not joined the surviving plaintiffs in filing of appeal nor the factum of death was disclosed and the appeal was filed on behalf of the deceased person through his attorney who is not competent to file appeal after the death of principal. It is further argued that the learned first Appellate Court has not reversed findings recorded by the learned trial Court on Issue No. 1 and, thus, the judgment and decree passed by the Courts below suffers from patent illegality and irregularity.
9. The primary stress of learned counsel for the appellant in second appeal is that suit for possession is based upon dispossession and not on title and, therefore, present suit is governed by Article 64 of the Act and not Article 65. However, the said argument is factually incorrect. No doubt, initially the plaintiffs have filed a suit for permanent injunction asserting possession over the land in dispute measuring 2 Kanals but the plaintiffs have claimed possession on the basis of title. In Para No. 2 of the plaint itself, it is pleaded that the plaintiffs are the owners in possession of the land in dispute. Once the plaintiffs have claimed possession on the basis of title, the suit is for possession under Article 65 of the Act. The plea of the plaintiff that the defendants have recently raised construction over part of the suit property will not make the suit on the basis of previous possession. Article 64 would be applicable if the possession is sought de hors of title. Since the plaintiffs have claimed title and, in fact, Issue No. 1 framed is also to the effect of ownership of the plaintiffs, therefore, it cannot be said that the suit is based on previous possession alone. It is not a suit on the basis of previous possession but on the basis of title. Such a suit would be governed by Article 65 of the Act. In terms of Article 65 of the Act, it is for the defendants to prove that they are in adverse possession for a period exceeding 12 years prior to the filing of the suit.
10. The finding that the plaintiffs are the owners of the suit land is recorded by the learned trial Court as well. The fact that the defendants have raised a plea of adverse possession leads to unequivocal conclusion that the plaintiffs are, in fact, owners of the suit land. As a matter of fact, the said finding that the plaintiffs are owners of the suit land was not sought to be disputed in second appeal as well. The entire case of the defendants to claim adverse possession starts from the sanction of the site plan for the office of the defendants somewhere in the year 1976. Exhibit D-1 is purported to be the site plan in respect of proposed construction of the office. However, a perusal of the said site plan does not show on which date such site plan was sanctioned. The site plan is reflected to be attested by the Executive Officer of the Municipal Committee, Roopnagar, on 10.4.1987. None of the officials of the Municipal Committee was examined to prove the sanction of the site plan on a particular date. Still further, the property in the site plan is not reflected by Khasra Nos. Per se it is difficult to co-relate the said site plan with the land in dispute. Exhibit D-2 is Khasra Girdawari from Sauni 1977 to Hadi 1992, Exhibit D-3 is Khasra Girdawari from Sauni 1982 to Hadi 1987, Exhibit D-4 is Khasra Girdawari from Sauni 1987 to Sauni 1989; and Exhibit D-5 is Khasra Girdawari from Sauni 1989 to Sauni 1990. It is well settled that entries in the Khasra Girdawari do not carry any presumption of correctness. Exhibit D-6 is jamabandi for the year 1981-82 wherein Communist Party is reflected to be in possession of 2 Kanals of land though in column No. 5, the possession is that of a gair marusi but in column No. 9, it is mentioned to be unauthorised possession. The said jamabandi is factually incorrect. As per case of the defendant-appellants itself, they are in possession of 1 Kanal of land. The oral evidence produced by the defendants is that of DW1 Lal Bahadur, whole time worker of Communist Party, and DW2 Hukum Chand, Secretary of the Communist Party.
11. The question which arises is whether the evidence so led by the defendants is sufficient to accept the plea that possession of the defendants was open and hostile to the knowledge of the plaintiffs since inception in the year 1976. Statement of DW2 Hukum Chand is to the effect that defendant Communist Party is in possession since 1975 and the plaintiffs never objected the possession of the defendants from the land in dispute. It is not his deposition that Communist Party entered into possession of the suit property with the knowledge of the plaintiffs. Failure to raise objection by the owner can at best mean permissive possession but the said fact is not incident of adverse possession. It may be noticed that in the jamabandi for the year 1986-87, the possession of the Communist Party is recorded only in 1 Kanal of land. It may be noticed that title of the plaintiffs was in flux which came to be settled by the order dated 21.4.1989 passed by the Assistant Custodian General. Therefore, the stand that the defendants have asserted adverse possession to the knowledge of the plaintiffs falls to the ground.
12. The defendants have to assert adverse possession against the true owner. It is not the case of the defendants in the written statement that they entered into possession with the express knowledge and to the hostility of the plaintiffs. Therefore, mere entry in the revenue record will not be sufficient to prove adverse possession of the defendants.
13. Even if the adverse possession of the defendants is to be presumed from the jamabandi for the year 1981-82, Exhibit D-6, the suit for possession was filed in the year 1990. Therefore, the defendants cannot assert perfection of their title by way of adverse possession. The judgment in Ramaiah's case (supra) is not applicable to the facts of the present case as it was held that the question whether the Article of limitation applicable to a particular suit is Article 64 or 65 has to be decided by reference to the pleadings. It was found that Article 65 is not applicable as the plaintiffs have suppressed the material facts as they have not disclosed that as in the previous suit, the plaintiff has admitted that he was in possession of the suit property upto 1971 which indicated ouster from possession whereas suit was filed only in the year 1984. In the present case, the plaintiffs have filed a suit for possession on the basis of title. The judgment in Ujagar Singh's case (supra) is on different facts. In the said case, a question arose whether the decision in a suit for injunction is binding in a subsequent suit based on question of title. It was found that no question of title was gone into or decided in the earlier suit and, therefore, the said decision cannot be said to be binding on the question of title. The said judgment provides little assistance in respect of the question raised in the present appeal.
14. The argument that suit for possession would be deemed to be instituted with the amendment of the plaint in the year 1990, relying upon Tarlok Singh v. Vijay Kumar Sabharwal, 1996(2) RRR 323 : (1996-2)113 PLR 649 (SC), is again not tenable. In the aforesaid case, suit for specific performance was said to be barred by limitation as such relief was sought after the expiry of period of limitation for claiming decree for specific performance. In the present case, plaintiff has filed suit for possession. It is for the defendants to prove that possession of the defendants was open, hostile and continuous for a period of 12 years immediately preceding the filing of the suit. The defendants have failed to prove such possession.
15. The argument that the plaintiffs have not appeared as witnesses is again not tenable. The plaintiffs have proved their title by virtue of documentary evidence. Even in the absence of documentary evidence, the title of the plaintiffs stands proved when the defendants raise the plea of adverse possession. The plea of adverse possession by necessary implication means admission of title of the plaintiffs. Since the title of the plaintiffs is not disputed, it is for the defendants to prove their adverse possession. The defendants have failed to prove their adverse possession, therefore, the plaintiffs were rightly granted decree for possession.
16. The argument that one of the plaintiffs had died before the filing of the appeal before the learned first Appellate Court and, therefore, the appeal is not properly instituted is again not tenable. The appeal filed without impleading legal representatives of a deceased, which is an act of irregularity alone in the facts of the present case. The suit has been filed by four co-owners. Even one co-owner could claim possession from a third person for the benefit for all offer co-owners. Therefore, even if one of the plaintiffs had died before filing of appeal, the appeal could be filed by surviving co-owner. One of the co-owners could file appeal so as to claim decree for possession for the benefit of the entire estate and, therefore, filing of appeal in these circumstances will not confer any benefit to a person who is claiming adverse possession.
17. In view of the above discussion, I am of the opinion that the defendant- appellants have failed to prove their open, continuous and hostile possession for a period of 12 years immediately preceding the filing of the present suit. Therefore, the learned first Appellate Court has rightly granted decree for possession in favour of the plaintiffs.
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