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2006 DIGILAW 1036 (RAJ)

Tara Chand v. Paltu Nath

2006-03-31

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This second appeal filed under Section 100 of the Civil Procedure Code by the defendant-appellants is directed against the Judgment passed by the first appellate Court dated 012.1981 dismissing the appeal of the defendant appellant Tara Chand and another and upholding the Judgment and decree passed by the learned Munsiff and Judicial Magistrate, Kishangarh Bas, District, Alwar dated 05.07.1977 decreeing the suit of the plaintiff respondent Paltu Nath. 2. The plaintiff had filed a civil suit before the trial Court seeking a decree for perpetual injunction against the defendant respondents restraining the defendants from dis-possessing the plaintiffs from the suit property in question. The plaintiffs claimed in the plaint that they were in permissive possession of the said property for over twenty years whereas the defendants claimed that the said property was purchased by them from the owner of the said property by a registered sale-deed on 29.01.1973 from Shri Purushottam Das Bhargava and the said residential property is situated in village Kot Kasim, Tehsil, Kishangarh Bas, District, Alwar. The plaintiffs also claimed that the said permissive possession of the portion of the suit property was obtained from the owner Shri Purushottam Das Bhargava is marked by green ink. He had acquired right by adverse possession as he and his family had lived in the said suit premises for over twenty years without any disturbance and, therefore, the defendants could not be dispossessed them from the suit property in question. 3. The present appeal had in fact been decided by this Court by the learned Single Judge on 08.01.1996 whereby the said second appeal of the defendants was allowed and the impugned Judgment and decree passed by the trial Court in favour of the plaintiffs were set-aside. 3. The present appeal had in fact been decided by this Court by the learned Single Judge on 08.01.1996 whereby the said second appeal of the defendants was allowed and the impugned Judgment and decree passed by the trial Court in favour of the plaintiffs were set-aside. The plaintiffs took the matter to the Honble Supreme Court vide Civil Appeal No. 14607/1996 (Arising out of SLP (C) 11077/96) which appears to have been allowed upon hearing the learned Counsel for the appellants only and the Judgment of this Court was set-aside and the matter was remanded back for fresh decision by the Honble Supreme Court observing that the plea of adverse possession was taken by the plaintiffs in Paragraph 3 of the plaint whereas the High Court in Para No. 13 of its Judgment given earlier had observed that “Neither the plea of adverse possession was taken specifically in the pleadings nor any issue was framed in this regard by the trial Court and nor any evidence was tendered on the record by the plaintiff in support of the said contentions and in the absence of which Courts below have gravely erred in recording the findings that the plaintiff was the owner of the property in dispute by adverse possession in face of clear admission by him that the suit property belongs to one Purushottam Das Bharagva from whom the appellants purchased the said property by a registered sale-deed dated 28.01.1973 which has been duly proved on the record and on the basis of which a valid title has passed on to the appellants”. This is how this second appeal has again been heard by this Court and is being disposed of by this Judgment . 4. Mr. Ajay Gupta, the learned Counsel for the appellants drew by attention to Para 3 of the plaint which translated into English reads as under:-“The plaintiff is in possession of the suit property ABCDEFG and H in question since the time of his ancestors without any disturbance or hindrance in an open manner and is using the said property as an owner for the last more than twenty years.” 5. The said suit was filed by the plaintiffs on 07.02.1973 in the Court of learned Munsiff and Judicial Magistrate, Kishangarh Bas, Alwar. 6. The said suit was filed by the plaintiffs on 07.02.1973 in the Court of learned Munsiff and Judicial Magistrate, Kishangarh Bas, Alwar. 6. The substantial questions of law as framed in the present appeal which were quoted in Para 4 of the earlier Judgment of this Court dated 08.01.1996 read as under:-“1. Whether the first appellate Court was justified in holding that the property in dispute was in adverse possession of the plaintiff , when no plea of adverse possession was taken nor any issue was framed in this regard? 2. Whether the first appellate Court was justified in holding that the plaintiff was the owner of the property in dispute by adverse possession in face of his admission that the suit property belong to Purshottam Das Bhargava?” 7. The aforesaid questions clearly show that the entire case of the plaintiffs rested on the ground of adverse possession and the relief claimed of permanent injunction against the dispossession from the suit property also depended on the said plea of adverse possession. In fact, the reading of the entire Judgment of the learned Single Judge given on earlier occasion would show that the discussions revolved round the said contention of the plaintiffs of adverse possession only and the facts remains that averment, narrated in Para 3 of the plaint quoted above show that the plea of adverse possession was taken not in so many words by the plaintiffs and on the contrary the same Para No. 3 indicates that the plaintiffs claimed that they were in possession of the suit property as owner thereof . Since, the said possession claimed to be as that of owner was not challenged, the plaintiff did not claim the same to be an adverse possession in so many words. 8. The learned Single Judge in Paras 8 and 9 of earlier Judgment clearly dealt with the said contention of the defendant appellants in the following words in Paras 8 and 9 which reads as under:-“8. It was next contended by the learned Counsel for the appellants that it is an established position in law that if a person claims right by setting up a plea of adverse possession, then in that even he must specifically plead title to the property by virtue of adverse possession. Learned Counsel for the appellants placed reliance upon the Judgment of the Apex Court reported in S.M. Karimn vs. Mst. Learned Counsel for the appellants placed reliance upon the Judgment of the Apex Court reported in S.M. Karimn vs. Mst. Bibi Sakira, AIR 1964 SC 1254 ; wherein it was held by the Apex Court that where a party sets up the plea of adverse possession as against true owner, it must plea and show by clear and unequivocal evidence that his possession was hostile to the real owner which amounts to a perfection of his title to the property claimed by him. A perusal of the plain reveals that the plaintiff had asserted that he is the owner of the property in question and in possession from his ancestors and no plea of adverse possession has been taken in the plaint and in absence of this plea in the pleadings, it was contended by the learned Counsel for the appellants that when the plaintiff had not set up any case for adverse possession, the learned trial Court has gravely erred in decreeing the suit of the plaintiff on the ground of adverse possession. I have examined the pleadings i.e., the plaint, the written statement as well as the evidence tendered on the record. I am of the considered opinion, that the appellant had purchased the property in question by a registered sale-deed dated 28.01.1973 from Purshottam Das Bhargava for Rs. 2,500/-and when the property was purchased the plaintiff respondent was in permissive possession of the same. He had agreed to vacate the property and hand over its peaceful possession to the defendant appellants within 5-7 days of its sale by Purshottam Das Bhargava to the defendant appellants but instead of handing over its peaceful possession the plaintiff raised a dispute by claiming that he is the owner of the property by adverse possession, particularly when no plea of adverse possession has been raised in the pleadings nor any evidence in this regard has been tendered on the record. I am further of the opinion that it is an established proposition of law that a party cannot be granted relief in respect of a case which is contrary to the case initially set-up by him, particularly when there is no foundation in the pleadings and also when the opposite party has no opportunity to meet the case set up by a party which gives surprise to him. Applying the above principle to the present case, I am of the view that since the plaintiff who had taken the plea of claiming title by adverse possession against the true owner, in order to succeed should have not only raised issue in the pleadings but also specific issue should have been framed in this regard by learned trial Court. In absence of pleadings and proof , learned trial Court has gravely erred in setting up a new case for the plaintiff for which the defendant appellant had no opportunity to meet the same. 9. During the course of hearing, it was contended by the learned Counsel for the appellant that the plaintiff had miserably failed even to prove his permissive possession over the rest of the portion of the property in dispute. In the circumstances, the only evidence which has been shown to this Court is the resolution of the executive committee of the Panchayat Samiti, Kathahim, District, Alwar vide Exhibit A-2 which in fact is a vacant land now in possession of the defendant appellants. From this resolution of the Panchayat Samiti, Exhibit A-2 dated 27.07.1976, it can be inferred that the plaintiff was earlier in possession of the said vacant land. No evidence in rebuttal has been led by the appellants against the said resolution affirming the possession of the plaintiff over the said land. I am further of the opinion, that in these circumstances, it was not proper for both the Courts below to have passed a decree against the defendant appellants in respect of entire property in question including the portion shown in red colour which is lying vacant towards the south to the property in question in green colour in the site plan. I am further of the opinion, that in order to succeed the plaintiff should have proved on the record as to from which time or year he was claiming adverse possession against the true owner which would have perfected his title by adverse possession over the suit property. This admittedly not having done the plaintiff was not entitled to succeed on the basis of plea of adverse possession. This admittedly not having done the plaintiff was not entitled to succeed on the basis of plea of adverse possession. I am further of the opinion that the appellants have successfully tendered all their relevant evidence on the record to prove that the possession of the plaintiff over the suit property was only permissive and that it is cardinal principle of law that in order to prove adverse possession, the party has to prove the fact that its adverse possession over the same has been more than 12 years which would only be as against the true owner and this having not been pleaded and proved, the suit of the plaintiff could not have been decreed even in respect of the portion shown in green colour in the site plan as well.” 9. The contention of the plaintiff respondents about the adverse possession was also dealt with by the learned Single Judge in Para 11 of the earlier Judgment which reads as under:-“While controverting the contentions advanced by the learned Counsel for the appellants it has been contended by the learned Counsel for the respondent that the plaintiff -respondent had specifically raised the plea of adverse possession and had also led evidence on the record and that learned trial Court had rightly decreed the suit in his favour on 05.07.1977 against which the appellants preferred an appeal before learned Additional District Judge, Kishangarh Bas, District Alwar who had affirmed the findings of the trial Court vide its order dated 012.1981 by dismissing appeal preferred by the appellants. It has been further contended that in view of Section 100, CPC the present appeal is not maintainable, since both the Courts below have given concurrent findings of fact which are not assailable. It has been further contended that in view of Section 100, CPC the present appeal is not maintainable, since both the Courts below have given concurrent findings of fact which are not assailable. The above contentions advanced by the learned Counsel for the plaintiff-respondent are not sustainable, since it is a cardinal principle of law that notwithstanding the fact that the concurrent findings of the two Courts below on the pure question of fact are not assailable in second appeal yet this Court is not precluded from reversing the same in second appeal, particularly when the findings appear to be grossly perverse, contrary to law and if they are arrived at contrary to the pleadings and evidence on the record and if they are perverse on the face of it and in my considered opinion the findings of the two Courts below are certainly perverse, manifestly unjust and contrary to the pleadings and evidence on the record and have resulted in grave injustice to the appellants. Applying the ratio of the decisions of the Apex Court as well as of this referred to above, I am of the opinion that the Judgment and decree passed by the trial Court on 05.07.1977 and affirmed by learned Additional District Judge vide its order dated 012.1981 deserve to be quashed and set aside.” 10. Thus, whatever it be, the learned Single Judge was dealing with the sole ground of adverse possession as claimed by the plaintiff in whatever manner, good,or otherwise. 11. Learned Counsel for the appellants again reiterates the submissions made earlier before this Court and submits that both the Courts below have erred in decreeing the suit of the plaintiffs for permanent injunction as the plaintiffs had not shown any semblance of right over the said property in question nor the plea of adverse possession was specifically raised by them in the plaint. He relies upon the Judgment of this Court in the case of Hasan Ali vs. Hafiz Mustak Ali, 1986 (2) WLN 1, wherein Para 17 this Court has held as under:- “It would be thus seem that the plea of adverse possession should include averments of hostile uninterrupted continuous and open possession adverse to the plaintiff for the prescribed period and unless the above can be read from the written statement, no plea of adverse possession can be inferred. Merely because the defendant claims possession as owners from 1948 it cannot be treated as a plea of adverse possession. Similarly, merely because a plea is raised that the suit is time barred it cannot be treated as a plea of adverse possession.” 12. He further relied upon the Judgment of the Honble Supreme Court in the case of Roop Singh vs. Ram Singh, 2003 (3) SCC 708, wherein the Honble Supreme Court held as under:-“As against this, the revenue record clearly establishes that the plaintiff was the owner of the property and that he had handed over the possession of the suit land to the defendant for cultivation as bataidar. It appears that the High Court materially erred in not referring to the evidence of the plaintiff who had specifically deposed that in the year 1956-1957 he had given the suit land to the defendant for two years on batai. It is also to be stated that the pleas of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land.” 13. Learned Counsel further placed reliance upon the Judgment in the case of Sri Danam Naga Sanyasi & Anr. vs. Allahabad Development Authority, Allahabad, AIR 1995 All. 418 to submit that in the absence of any suit for declaration of title, no relief for perpetual and prohibitory injunction can be granted. He submits that since the plaintiffs were neither the owner nor they had produced any such evidence, no relief of permanent injunction should have been granted by the trial Court. 14. As against this, Mr. 418 to submit that in the absence of any suit for declaration of title, no relief for perpetual and prohibitory injunction can be granted. He submits that since the plaintiffs were neither the owner nor they had produced any such evidence, no relief of permanent injunction should have been granted by the trial Court. 14. As against this, Mr. R.K. Mathur, learned Counsel for the plaintiff respondents submits that since the Honble Supreme Court has remanded the case back to this Court on the basis of plea of adverse possession only as contained in Para 3 of the plaint and there is evidence on record to show that the plaintiffs had enjoyed the uninterrupted possession of the said portion marked by green ink, by virtue of Section 27 of the Limitation Act, the right of owner to claim possession back from him stands extinguished and, therefore, the plaintiffs were entitled to injunction as claimed by them. He relies upon the Judgment of the Honble Supreme Court in the case of R.V.E. Venkatchala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr., 2003 SAR (Civil) 929. He submits that the plaintiff cannot be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff s burden of proof can safely be deemed to have been discharged. He, therefore, submits that in view of the concurrent findings of the two Courts below, the plea of adverse possession could be deemed to have been established in their favour and the decree deserve to be upheld. 15. The other Judgment relied upon by Mr. Mathur, the learned Counsel for the plaintiff respondents in the case of Prataprai N. Kothari vs. John Braganza, AIR 1999 SC 1666 , with reference to Para No. 11 of the said Judgment , he submits that the suit for permanent injunction can be based on the plea of long and exclusive possession and not on title. However, in that case, the defendant did not raise the plea that he had title to the suit property. This is not the situation in the present case, therefore, the said case relied upon by Mr. However, in that case, the defendant did not raise the plea that he had title to the suit property. This is not the situation in the present case, therefore, the said case relied upon by Mr. Mathur, is distinguishable and is not applicable in the facts and circumstances of the present case. Mr. Mathur, also relied upon the two other Judgment s only to propound that against the concurrent findings of the facts, the scope of second appeal is limited and such findings cannot be disturbed in the second appeal. 16. Having heard the learned Counsel for the parties and upon perusal of the record of the case, this Court is of the opinion, that the second appeal of the defendants deserves to be allowed and the decree as well as the Judgment s of the lower Courts cannot be upheld. Firstly, in the absence of specific and proper pleading of adverse possession by the plaintiffs and any evidence led by them in this behalf in the absence of any issue having been framed by the trial Court, this weak foundation of the case cannot provide good ground for decree. The averments made in Para 3 of the plaint as pointed out above are contradictory. In one breath the plaintiff says that he is enjoying the long peaceful possession of the suit property in question and in next breath he says that he is using it as owner for over twenty years and period wise plaintiffs only indicate that they are living since the time of their ancestors and no other thing is mentioned in Para 3 of the plaint. This, in the opinion of this Court cannot be construed as a proper or detailed pleading of adverse possession so as to furnish basis for the decree as claimed. As held by the Honble Supreme Court in the case of Roop Singh vs. Ram Singh, 2000 (3) SCC 708 (Supra), mere long permissive possession cannot be construed as adverse possession unless hostile animus possession adverse to the knowledge of real owner is averred and proved. Para 3 of the plaint does not do so. Obviously, the plaintiffs have not produced any evidence showing any title over the property in dispute. As against this, the defendants have produced and proved Exhibit-1, the registered sale-deed for purchase of the property in question from Purshottam Das Bhargava for Rs. 2,500/-on 29.01.1973. Para 3 of the plaint does not do so. Obviously, the plaintiffs have not produced any evidence showing any title over the property in dispute. As against this, the defendants have produced and proved Exhibit-1, the registered sale-deed for purchase of the property in question from Purshottam Das Bhargava for Rs. 2,500/-on 29.01.1973. Since, the suit in question has been filed only a few days after the said registered sale-deed on 07.02.1973, there is no question of plaintiffs claiming adverse possession i.e., long and undisturbed possession against the new purchaser i.e., defendants. Therefore, the claim of the plaintiffs cannot succeed on the ground of adverse possession at all. Since, the learned trial Court has decreed the suit of the plaintiffs and granted permanent injunction merely on the ground of long possession of the plaintiffs over the portion of the property in dispute, such decree cannot be sustained against the owner of the property who has title over the property in question under a duly proved registered sale-deed. The first appellate Court also committed an error in rejecting the appeal of the defendant appellants. 17. Consequently, the instant second appeal is allowed. The impugned Judgment and decree passed by the trial Court dated 05.07.1977 and the Judgment passed by the first appellate Court dated 012.1981 are set aside. No order as to costs.