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2009 DIGILAW 1226 (PNJ)

Chander Mohan Sahdev v. Chandigarh Administration

2009-07-23

JASBIR SINGH

body2009
Judgment Jasbir Singh, J. 1. By filing this writ petition, petitioner has impugned amount of penalty, imposed against him, for misuse of the property. 2. It is not in dispute that for using the garage, in House No.11, Sector 19-A, Chandigarh, for commercial purpose (printing press), petitioner received a resumption notice on 26.04.2005 (P-2). Noting violation mentioned above, the Competent Authority ordered resumption of the property in dispute on 01.02.2006 (P-3). Petitioner went in appeal. On perusal of inspection report, submitted by officers of the Department on 22.07.2008, the Competent Authority noted that misuse had been stopped and in view of that, resumption order was set aside. Site was restored to the petitioner, subject to payment of misuse charges, forfeiture, interest and other dues, within 30 days, from the date of issue of that order i.e. 31.07.2008. Petitioner went in revision, wherein petitioner also laid challenge to the amount calculated towards misuse charges. His revision was dismissed vide order dated 19.11.2008 (issued on 26.11.2008). Hence this writ petition. 3. It is coming out from the records that misuse charges were claimed by the respondents, on the basis of notification dated 26.05.2003 (P-12), issued under Section 9-A of Chandigarh (Sales of Sites and Buildings) Rules, 1960, fixing rates regarding misuse of a building. 4. Counsel for the petitioner has half-heartedly laid challenge to the notification mentioned above, by stating that for misuse only of a portion of the building, charges are being imposed for the entire covered area, which is not justified. 5. After hearing counsel for the petitioner, this Court is of the opinion that argument raised by counsel for the petitioner, is liable to be rejected. Vide notification mentioned above, following rates were fixed for charging penalty amount towards misuse of site/building:- "(a) For residential and institutional premises: (i) Rs.50/- per square yard if less than 25% of the site or covered area of building is misused. (ii) Rs.100/- per square yard if 25% or more of the site or covered area of building is misused. The charges shall be levied on the entire area of the site." 6 This Court feels that in case of misuse of only a part of the building, there is a reason to claim misuse charges for the entire covered area. In this case, petitioner had let out garage, of his residential building, to a tenant, to run a printing press. In this case, petitioner had let out garage, of his residential building, to a tenant, to run a printing press. For misuse that of the defendants. In support of his arguments, learned counsel has placed reliance on Shiv Kumar and others v. Ajodhia Nath and others, A.I.R. 1972 J&K 125 7. Learned counsel for the respondents, on the other hand, has submitted that the plaintiff was required to state in the plaint itself that he was in possession of the suit property by way of adverse possession and how and when it became adverse. In the present case, no such averment was made by the plaintiff in the suit. It was only in the replication filed by the plaintiff to the written statement filed by the defendants, plaintiff had averred that he had become owner of the property in dispute by way of adverse possession. In support of his arguments, learned counsel has placed reliance on a decision of the Apex Court in Achal Reddy v. Ramakrishna Reddiar and others, (1990)4 S.C.C. 706, wherein it was held that adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be said to be adverse. 8. Learned counsel has next placed reliance on a decision of the Apex Court in Dr. Mahesh Chand Sharma v. Raj Kumari Sharma, A.I.R. 1996 S.C. 869, wherein it was held that a person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession. 9. After hearing learned counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. 10. The facts in this case are not in dispute. Admittedly, an agreement to sell with regard to property in dispute was executed by the defendants in favour of the plaintiff. The said agreement to sell is Ex.P-1. Sale deed was to be executed on or before 20.6.1976. Rs.2,000/- were paid as earnest money by the plaintiff to the vendors. There was one recital in the agreement that the defendants would apply and get permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. The said agreement to sell is Ex.P-1. Sale deed was to be executed on or before 20.6.1976. Rs.2,000/- were paid as earnest money by the plaintiff to the vendors. There was one recital in the agreement that the defendants would apply and get permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. Parties again entered into another agreement regarding the same land on 17.6.1976 and the date for execution and registration of sale deed was extended to 15.9.78. The plaintiff was handed over the possession of the suit property in terms of the agreement to sell. 11. In these circumstances, the possession of the plaintiff was permissive as per the agreement. In order to prove that the possession of the plaintiff was adverse, there must be a specific. pleading of dis-claiming title from a particular date, hostile assertion thereof and setting up of adverse possession from a particular date to the knowledge of true owner and his acquiescence for the long continuous uninterrupted period. A permissive possession at inception does not become adverse merely by passing of long time in the absence of requisite animus. The burden is always on the person claiming adverse possession. A person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to anothers title. In the absence of specific pleading of all the necessary ingredients, plea of adverse possession has to fail. No presumption of fact can be drawn in favour of a person claiming adverse possession. There is no equity in favour of such person. 12. In the present case, the plaintiff had not pleaded adverse possession in the plaint. It was only in the replication that plea of adverse possession was taken. The plaintiff had got the possession of the suit property on the basis of an agreement to sell and continued to remain in possession although sale deed was not executed in his favour. At the most the possession of the plaintiff can be said to be permissive. Admittedly, the defendants are owners of the suit property along with their mother. Hence, the Courts below have rightly dismissed the suit of the plaintiff-appellant and have rightly decreed the counter claim filed by the defendants seeking possession. 13. At the most the possession of the plaintiff can be said to be permissive. Admittedly, the defendants are owners of the suit property along with their mother. Hence, the Courts below have rightly dismissed the suit of the plaintiff-appellant and have rightly decreed the counter claim filed by the defendants seeking possession. 13. The judgment relied upon by learned counsel for the appellant fails to advance the case of the appellant as the appellant had failed to assert and establish that he had become owner by way of adverse possession. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. Appeal dismissed.