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1981 DIGILAW 19 (ALL)

Sushila Devi v. Jasoda Bai

1981-01-06

S.J.HYDER

body1981
JUDGMENT S.J. Hyder, J. - The plaintiff has met with varying fortunes before the Courts below. Her claim was decreed in its entirety by the trial court. The first court of appeal hereinafter referred to as 'the court of appeal' reversed the said decree and dismissed the suit. In consequence, the plaintiff has now come in second appeal to this Court. 2. The seeds of trouble between the parties were incipient in the sale deed dated Nov. 30, 1955 executed by one Pooran Chand in favour of the plaintiff and one Smt. Shanti Devi. The genesis of the dispute between the parties shall be more fully described later in this judgment. It may, however, be stated that Shanti Devi executed another sale deed in respect of her half share in the house covered by the sale deed dated Nov. 30, 1955 in favour of the plaintiff. In this way, the plaintiff became the full owner of the house and this was the position at the time of the institution of the suit. 3. The house of the plaintiff is east faced. In the middle, there is a stair case which leads to the said house. There is a platform situate to the north and the east of the stair case. The house of the defendants-respondents is towards the north of the plaintiffs house. Just east of this house of the defendants-respondents and again to the north of the plaintiff's house, there is a platform. The dispute between the parties is with regard to the ownership of this platform which is to the north of the plaintiff's house and to the east of the house of the defendants, one of whom is Hari Ram. There is a 'barja' in the first floor of the house of the plaintiff which abuts on the disputed platform. There is no dispute between the parties in so far as these facts are concerned. 4. The suit, giving rise to this second appeal was filed by the plaintiff for possession of the said disputed platform which is shown in the map attached to the plaint with letters 'ABCD' by red colour. She also sought a relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the said platform. The case taken up by the plaintiff was controverted by the defendants. She also sought a relief of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the said platform. The case taken up by the plaintiff was controverted by the defendants. They stated that the platform in dispute was adjacent to their house and did not belong to them. They further pleaded that the suit was barred by time and the defendants were in possession over the platform. 5. The trial court found in favour of the plaintiff on the question of title. It accordingly had no difficulty in recording a decree in her favour. The court of appeal has, however, reversed the said finding and has in consequence dismissed the suit of the plaintiff. 6. Learned counsel appearing for the plaintiff before this Court pressed strong reliance on two infirmities in the judgment of the court of appeal. The criticism directed against the judgment of the court of appeal on this point is well founded and must be sustained. In order to substantiate her claim, the plaintiff relied on the sale deed dated Nov. 30, 1955 executed by Pooran Chand jointly in her favour and in favour of Shanti Devi. It has been observed by the court of appeal that the said sale deed had not been specifically pleaded in the plaint, and, as such it was not open to the plaintiff to rely on the same. This observation of the court of appeal is not sustainable in law. Order 6 of the Civil P.C. deals with pleadings generally. Rule 2 of the said Order lays down that every pleading shall contain and contain only, a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of the said Order further lays down that the forms prescribed in Appendix A to the Civil P. C., shall as far as possible, be adhered to. The sale deed dated Nov. 30, 1955, referred to above, was in the nature of evidence and it should not have been pleaded by the plaintiff. The alleged shortcoming in the plaint pointed out by the court of appeal was actually not a defect and no presumption could have been drawn against the plaintiff on that account. 7. The sale deed dated Nov. 30, 1955, referred to above, was in the nature of evidence and it should not have been pleaded by the plaintiff. The alleged shortcoming in the plaint pointed out by the court of appeal was actually not a defect and no presumption could have been drawn against the plaintiff on that account. 7. In the next place, the court of appeal has observed that the plaintiff in his statement of claim has not relied on adverse possession and, as such, she cannot succeed merely on the basis of such possession. This again indicates that the correct legal position was not apprehended by the court of appeal. It is settled by authority that possession is good against the whole world except the true owner. Once the plaintiff pleads that he or she, as the case may be, was the owner and was in possession of a certain property it is a complete averment not only as regards title as generally understood but also with regard to possessory title. The plaintiff could have been awarded a decree in case she had succeeded in proving her prior possession over the platform in dispute and the defendants had failed to prove a better title in themselves. Since the court of appeal has not found in favour of the plaintiff on the question of possession, it is unnecessary to pursue this line of reasoning any further. 8. The trial court no doubt held that since a projection abutting from the house of the plaintiff was over-hanging the platform in dispute, the land beneath the projection must be deemed to be in possession of the plaintiff. This finding recorded by the trial court is based on a misconception of law. A projection may be in the nature of an easement and it would be obliterating the distinction between a dominant heritage and a servient heritage if all owners of a projection are held to be in possession over the land beneath the projection. The correct legal position is that a person who is an owner of a piece of land is deemed to be the owner of the sub-soil up to the middle of the earth and up to the entire column of air extending upwards in the hemisphere. The reverse of this proposition has never been recognised by law. The correct legal position is that a person who is an owner of a piece of land is deemed to be the owner of the sub-soil up to the middle of the earth and up to the entire column of air extending upwards in the hemisphere. The reverse of this proposition has never been recognised by law. It is wholly improper to conclude that because a person is in possession of a portion of the column of air, he is also in possession of the land below that column of air. At most what can be said is that a person may acquire adverse possession by prescription by being in possession over the column of air but such adverse possession would not relate to the land beneath the column of air. The trial court, therefore, committed an error of law in raising an inference about the ownership of the plaintiff in respect of the platform in dispute merely on the ground that a projection belonging to her existed over the said platform. 9. In short, the judgments of the two courts below are not satisfactory and ordinarily I may have felt persuaded to remand the case for a fresh decision. However, there is sufficient evidence on record which enables me to pronounce a judgment in this case. I, therefore, do not think it necessary to prolong the agony of the parties by tossing back the ball to the lower courts. From a recital of the sale deed executed by Pooran Chand in favour of the plaintiff and Smt. Shanti Devi on November 30, 1955, it appears that two platforms purport to have been transferred in favour of the transferees along with the house to which they were appurtenant. One of these platforms is described as 'Pesh Chabutra' and the other as 'Baghal Ka-Chabutra', which translated in simple English would mean 'Chabutra in front' and 'Chabutra in the side'. The reliance on behalf of the plaintiff-appellant was on the use of the words referred to above and it was contended that the house along with two platforms was transferred in favour of the plaintiff and her co-sharer by Pooran Chand. One of these platforms was in front of the house and the other was by its side. The learned counsel strongly contended that the platform to the side can only refer to the platform in dispute. One of these platforms was in front of the house and the other was by its side. The learned counsel strongly contended that the platform to the side can only refer to the platform in dispute. It is shown in the map attached to the plaint with letters ABCD and is marked with red colour. At first blush, the argument appears to be attractive but it cannot bear scrutiny. 10. In case the disputed Chabutra had been included in the sale deed executed by Pooran Chand on Nov. 30, 1955, the Western boundary would not have only mentioned the house of Haiku Bajaj but would also have included the house of Hari Ram. In the same way, the mere fact that the Northern boundary of the sale deed only shows the house of Hari Ram indicates that the platform in dispute appertained to the house of the defendants respondents who, as already stated, include Hari Ram. 11. It is significant that in the sale deed executed by Smt. Shanti Devi in respect of her half share in the house in favour of the plaintiff on July 14, 1958 the same boundaries are mentioned as given in the sale deed dated Nov. 30, 1955. The sale deed executed by Smt. Shanti Devi however, makes no reference to platforms. Further fact which should not be allowed to escape attention is that Pooran Chand had previously mortgaged the house which he sold to the plaintiff and Smt. Shanti Devi to other persons. The copies of the said mortgage deeds have not been filed by the plaintiff to support her ownership of the platform in dispute. It is probable that in case the said document had been brought on record, they may have demolished the case taken up by the plaintiff-appellant in her statement of claim. A presumption should, therefore, be drawn, against the plaintiff-appellant on account of the non-production of the said document. 12. From a perusal of the site plan relating to the platform in dispute, it appears that it covers almost the whole length of the house of the defendants-respondents towards the east. It adjoins the house of the plaintiff-appellant only to a small extent. Admittedly, the plaintiff-appellant had no opening, except the projection referred to above, towards the platform in dispute. From a perusal of the site plan relating to the platform in dispute, it appears that it covers almost the whole length of the house of the defendants-respondents towards the east. It adjoins the house of the plaintiff-appellant only to a small extent. Admittedly, the plaintiff-appellant had no opening, except the projection referred to above, towards the platform in dispute. There is no evidence on the record to prove that the plaintiff-appellant had been in possession over the said platform. To the same effect is the finding recorded by the trial court and I concur in the conclusion reached by it on this point. 13. As a result of the foregoing discussion, I find no force in this appeal which is liable to be dismissed with costs.