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2000 DIGILAW 352 (PNJ)

Ygonder Nath v. Prem Lata And Ors.

2000-03-28

S.S.SUDHALKAR

body2000
Judgment S.S.Sudhalkar, J. 1. I have heard the appellant in person, he has been unsuccessful in both the Courts below. 2. Respondents No. 10, 11 and 12 are brothers and sister, respectively, of the appellant and they are proforma respondents in this case. Triloki Nath deceased husband of respondent No.1 was the father of respondents No.2 to 5. Respondents No.3 and 6 are the same persons. The father of Triloki Nath, i.e. Mangat Ram, had sister named Chhoti Devi is the wife of Avinash Chander-father of the appellant and respondents No. 10, 11 and 12. 3. The suit was filed by the appellant against respondents No.1 to 5 with a prayer of mandatory injunction that the said respondents be directed to hand over the vacant possession of the suit property and also that they be restrained from alienating or transferring the suit property or disposing of in any other manner, The case of the appellate is that the and respondent No. 10 to 12 are the owner of the property in dispute but the same is in possession of respondent No.1 to 4 in different portions. One Bir Singh, minor son of Har Bilas, was initially the owner of the property in dispute and the same was sold by him to Shiv Chander in the year 1926. Shiv Chander was the father of Avinash Chander and grand-father of the appellant, Avinash Chander expired on 21.12.1983. According to the case of the appellant, Avinash Chander became the owner of the property in dispute having inherited it from his father Shiv Chander. After purchasing the property, Shiv Chander had demolished that house and raised a new construction after seeking necessary permission from Municipal Committee, Karnal. Mangat Ram, who was the elder brother of the wife of Avinash Chander was given the property in dispute on 6.5.1989 for residential purposes on account of love and affection as he had no other comfortable accommodation and was having bad financial circumstances. He was, according to the appellant, inducted into the possession of the property in dispute as a licensee. However, he took undue advantage of the leniency of Shiv Chander and did not vacate the premises and started asserting his title. This forced Shiv Chander to file suit No.441 of 1944 in the Court of Sub Judge, 1st Class, Karnal and the same was decreed on 28.5.1945. However, he took undue advantage of the leniency of Shiv Chander and did not vacate the premises and started asserting his title. This forced Shiv Chander to file suit No.441 of 1944 in the Court of Sub Judge, 1st Class, Karnal and the same was decreed on 28.5.1945. Aggrieved by the judgment and decree, Mangat Ram filed an appeal which was dismissed on. 29.10.1945. He had filed a regular second appeal in the High Court at Lahore which was also dismissed on 18.4.1947. 4. After the dismissal of the appeal, Shiv Chander wanted to take possession of the property in dispute from Mangat Ram but certain common relatives of the parties intervened and persuaded him not to do so and allowed Mangat Ram to remain in possession of the property in dispute as a licensee on compassionate grounds. According to the appellant, Mangat Ram remained in possession of the property in dispute as a licensee during the life time of Avinash Chander. Though, Avinash Chander served a notice in the month of March, 1983 revoking the licence of Mangat Ram with regard to the property in dispute but he did not respond to that notice and his status was reduced to that of a trespasser. 5. It has been further contended by the appellant that, though the licence of Mangat Ram was revoked yet Avinash Chander took a lenient view and did not initiate any legal proceedings as he was again approached with a request for allowing to continue in possession of the property in dispute. Mangat Ram expired on 22.12.1983 and after hrs death, Triloki Nath (original defendant) remained in possession of the property in dispute as a licensee in his place. He inducted respondents No.7 and 8 (defendants No.3 and 4.) as tenants on the ground floor of the property in dispute. It has been also Contended by the appellant that after termination of the licence of Triloki Nath on 12.9.1993, he had no right to remain in possession of the property in dispute and also a suit seeking a decree for declaration with regard to the property in dispute filed by Smt. Prem Lata (respondent No.1) is pending. In the written statement, respondents No. 10, 11 and 12 admitted the claim. However, respondents No.1 and 2. filed the written statement which was adopted by respondents No.7 and 8. In the written statement, respondents No. 10, 11 and 12 admitted the claim. However, respondents No.1 and 2. filed the written statement which was adopted by respondents No.7 and 8. A previous litigation up to the High Court at Lahore was admitted but it was pleaded that the decree passed in those proceedings was never executed. Rather, according to them, after the death of Mangat Ram, respondents No.1 and 2 are in possession of the property in dispute and the possession is open and hostile to the very knowledge of the appellant and it has ripened into ownership. It has also been contended that respondents No.1 and 2 have become owner of the house is dispute by way of adverse possession after the death of Mangat Ram. 6. The lower appellate Court has not accepted the version of the appellant regarding permissive user after the earlier decree. It has also considered the fact that earlier eviction petition was filed against Mangat Ram by Shiv Chander but that was got dismissed as withdrawn on 6.5.1939 and the second round of litigation commenced which ended in favour of Shiv Chander on 18.4.1947. It has been held by the lower appellate Court that the contentions of the appellant that since there was close relationship between Avinash Chander and Mangat Ram, the latter was allowed to remain in possession of the property in dispute as a licensee and his possession was permissive one, was not accepted. It was held to be untenable as the same was not supported by oral or documentary cogent evidence. The lower Appellate Court has considered the fact that when there were two rounds of litigation with regard to property in dispute between Shiv Chander and Mangat Ram, then it did not sound to reason that even after that Mangat Ram was allowed to remain in possession of the property in dispute due to love and affection. It has been further considered by the lower Appellate Court that after the second round of litigation, no application to execute the decree was filed and Mangat Ram was allowed to remain in possession of the property in dispute and in such a situation, the unauthorised possession of Mangat Ram over the property ripened into ownership after 12 years. It has been further considered by the lower Appellate Court that after the second round of litigation, no application to execute the decree was filed and Mangat Ram was allowed to remain in possession of the property in dispute and in such a situation, the unauthorised possession of Mangat Ram over the property ripened into ownership after 12 years. It has also been held by the lower Appellate Court that the right of the appellant or his predecessors-in-interest with regard to property in dispute extinguished in favour of the party in possession of the same after 12 years from the year 1947. It has been further held by the lower Appellate Court that after the year 1959, the possession of Mangat Ram over the property in dispute became hostile to the knowledge of true owner and the same has ripened into ownership. 7. The appellant has cited before me the case of Annasahed Bapusaheb Patil and Ors. v. Balwant alias Balasaheb Babusahed Patil (dead) by LRs. and heirs etc., A.I.R. 1995 S.C. 895. It has been held therein that where possession could be referred to a lawful title, it will not be considered to be adverse. It has been further held therein that one who holds possession on behalf of another, does not by mere denial of that others title make his possession adverse and that a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. 8. The appellant has also cited before me the case of D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors., A.I.R. 1997 S.C. 2930. It was a case in which the land was allotted with prohibition on alienation and it was purchased from the original allottee and subsequently Karnataka Act prohibiting alienation of land up to particular period passed. Ejectment proceedings under the Act were initiated against the purchaser who claimed adverse possession. It was further held by the Supreme Court therein that failure of purchaser to disclaim title under which he came in possession and set up title open and hostile to the knowledge of the true owner led to the plea of adverse possession being not proved. 9. It was further held by the Supreme Court therein that failure of purchaser to disclaim title under which he came in possession and set up title open and hostile to the knowledge of the true owner led to the plea of adverse possession being not proved. 9. The appellant has also given written arguments in which the case of the appellant is reiterated and the gist of the arguments is that permissive possession cannot become adverse possession. 10. The question in this case narrows down in view of the fact that there was a decree in favour of the appellant against the contesting respondents which was upheld by the Lahore High Court (before partition). The said decree remained unexecuted. Of course, if subsequently the decree holder had sought to give permission to the judgment debtor, the question could have been different but the said has been held to be not proved. I agree with the finding of the lower appellate Court that after two rounds of litigation, nobody will allow the respondents to remain in possession as licensees without getting anything written from them and when this is so it is a clear case where limitation period to execute a decree had elapsed long back. It also is not shown that any step-in-aid in execution of the decree was taken. After one round of litigation which had ended upto the High Court, if the possession was to be permissive then writing would have been got executed but this is a simple case where the limitation period to file an execution proceeding has elapsed. Consequently, the second suit on the same cause of action will not lie. When the permissive possession is not believed, second suit on the original cause of action will not lie, one of the reason being bar of limitation to file the suit. 11. I do not find any infirmity with the judgments of the Courts below where the plea of permissive possession is not believed. This being so, this appeal is without merit and. is dismissed.