Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 303 (HP)

Deepak Parkash v. Sunil Kumar

2014-03-28

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, Judge (Oral) The present appeal has been preferred by the appellant/plaintiff against judgment and decree dated 22.4.2002 passed in Civil Appeal No. 21-P/1998 by learned Additional District Judge-II, Kangra at Dharamshala whereby he reversed the judgment and decree dated 24.11.1997 passed by learned Sub Judge 1st Class-I, Palampur, District Kangra, H.P. in Civil Suit No. 151/1990. 2. The appellant/plaintiff (hereinafter referred to as the ‘plaintiff’) instituted a suit for permanent prohibitory injunction that the land comprised in Khasra Nos. 89/1 and 89/2 as shown in Tatima Ex.PW-1/B bearing Khata No. 72, Khatauni No. 158, situated at Mohal Gorat, Mauza Rajpur, Tehsil Palampur, District Kangra, H.P. was recorded in the ownership as well as possession of the plaintiff. The defendant was stranger to the said land and in September, 1990, the respondent/defendant (hereinafter referred to as the ‘defendant’) started raising a wooden shed over the suit land and also started digging it with the intention to lay fresh foundation. In alternative, the plaintiff prayed that if any part of the suit land was found underneath construction of the defendant, then the possession of the same be delivered to the plaintiff by way of demolition of the said structure. 3. The defendant contested the suit of the plaintiff by filing written statement in which preliminary objections of locus standi, estoppel, cause of action, maintainability, jurisdiction and valuation for the purpose of court fee and jurisdiction were raised. On merits, it was pleaded that the defendant did not specifically dispute the revenue entries in favour of the plaintiff. However, it was stated that if any land of the plaintiff was found in possession of the defendant, then the defendant had perfected his title over the same by way of adverse possession. It was further pleaded that the construction of the defendant was about 15 years back and it was open, hostile and uninterrupted and to the knowledge of the plaintiff. It was denied that the defendant raised any construction in September, 1990 and prayed for dismissal of the suit. 4. Replication was filed by the plaintiff wherein all the preliminary objections were denied and further the averments made in the plaint were re-asserted. 5. On the pleadings of the parties, the learned trial Court on 13.7.1992 framed the following issues: 1. Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP 2. 4. Replication was filed by the plaintiff wherein all the preliminary objections were denied and further the averments made in the plaint were re-asserted. 5. On the pleadings of the parties, the learned trial Court on 13.7.1992 framed the following issues: 1. Whether the plaintiff is entitled for the relief of injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus-standi ? OPD 4. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 5. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD 6. Whether the defendant has become owner of the suit land by way of adverse possession, as alleged? OPD. 7. Relief. 6. Both the parties led their respective evidence and the learned trial Court vide judgment dated 24.11.1997 dismissed the suit for injunction. However, at the same time, since the defendant has failed to establish his adverse possession, therefore, on the strength of title, the plaintiff is entitled to get the decree of possession and accordingly a decree for possession was passed in favour of the plaintiff directing the defendant to hand over the vacant possession of the suit land after demolition of the structure standing thereupon. 7. Aggrieved by the judgment of the learned trial Court, the defendant preferred an appeal before the learned lower Appellate Court, who vide his judgment and decree dated 22.4.2002 has been pleased to allow the appeal and consequently, the suit filed by the plaintiff has been ordered to be dismissed. It is against this judgment and decree, the appellant/plaintiff has preferred the second appeal before this Court. 8. This Court on 7.6.2002 admitted the appeal on the following substantial questions of law: 1. Whether the learned first Appellate court, while reversing the judgment of the trial Court, mis-construed the provisions of law regarding the adverse possession? 2. Whether the defendant could have been declared to be owner of the suit land by adverse possession without defendant having detailed and proved as to when his adverse possession commenced? 3. Whether the impugned judgment and decree of the learned first Appellate Court is dehors the evidence on record? 9. I have heard Mr. Rajnish Maniktala, learned counsel for the appellant and Mr. Neeraj Gupta, learned counsel for the respondent and have also gone through the records carefully. 10. 3. Whether the impugned judgment and decree of the learned first Appellate Court is dehors the evidence on record? 9. I have heard Mr. Rajnish Maniktala, learned counsel for the appellant and Mr. Neeraj Gupta, learned counsel for the respondent and have also gone through the records carefully. 10. Since all the aforesaid substantial questions of law are interrelated and inter-connected, therefore, I proceed to dispose of the same through common reasoning. 11. At the outset, one needs to understand the concept of adverse possession. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is well settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario” i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual visible, exclusive, hostile and continued over the statutory period. Therefore, a person who claims adverse possession has to show (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party ; (d) how long his possession is continued; and (e) his possession was open and undisturbed. It has to be remembered that the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all facts necessary to establish his adverse possession (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ). 12. It is clear from the pleadings that the defendant has admitted the ownership of the plaintiff, therefore, his plea of ownership has now to be examined on the touchstone of the law laid down in Dr. Mahesh Chand Sharma (supra). 13. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ). 12. It is clear from the pleadings that the defendant has admitted the ownership of the plaintiff, therefore, his plea of ownership has now to be examined on the touchstone of the law laid down in Dr. Mahesh Chand Sharma (supra). 13. The defendant in the written statement in para-4 of the preliminary objection has stated thus: “That the defendant has become owner of the suit land by the operation of the doctrine of adverse possession.” On merits, in paras 1 and 4 of the written statement, the defendant has submitted thus: “In reply to para 1 of the plaint, the contents of the para are denied for want of knowledge. However, even, if the position is such the defendant has become owner of the part of the suit land i.e. part of the Khasra No. 89 towards its sides touching khasra Nos. 88 and 249 towards the PWD road by the operation of doctrine of adverse possession of the entry showing the plaintiff to be the owner in possession is absolutely incorrect and against the facts on the spot. The possession of the defendant, however, has been incorporated in the khasra Gurdawari recently. The construction raised by the defendant as also the foundation has been laid more than 15 years back the possession has always been open, hostile, uninterrupted and to the knowledge of the plaintiff.” “In reply to para 4 of the plaint, the contents are wrong, hence denied. The defendant has built a house more than 15 years back and has also laid foundations. In fact, the foundations and the house fall in khasra No. 88 and 249 to which the defendant has no right, title or interest otherwise too. It is only a part of the house that falls in khasra No. 89. There is no question of asking the plaintiff to stop the construction. This is a false story built up in order to bring the suit within limitation.” 14. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. This is a false story built up in order to bring the suit within limitation.” 14. It appears that the learned lower Appellate Court completely ignored the pleadings of the parties or else the judgment and decree passed by the learned trial Court on the basis of such pleadings would not have been disturbed much less reversed. A perusal of the written statement would show that pleadings with regard to adverse possession were not only deficient but in fact did not meet the requirement of law. The defendant even failed to specify the definite date on which his possession became adverse. 15. Where a plea of adverse possession is taken, the pleading is of utmost importance and anything found missing in plaint, may be fatal to such plea of adverse possession. In order to establish the claim of adverse possession, one has to plead the exact date from which the adverse possession started as held in Parwatabai vs. Sonabai and others 1996 (6) Scale, 375, by the Hon’ble Supreme Court: “5. Article 65 of the Act postulates that for possession of immovable property or any interest therein based on title, when the possession of the defendant becomes adverse to the plaintiff, the suit has to be filed within 12 years. Therefore, when the plaintiffs asserted their title on the basis of succession to the estate of their father, it is for the appellant to prove as to on which date the appellant’s possession has become adverse to the respondents’ title. In this case, the appellate Court and the High Court found that the appellant had not established as to what was the exact date from which the adverse possession started running.” Thus, it is clear from the aforesaid judgment that the defendant is required to plead and only thereafter prove on which date the appellant’s possession became adverse. 16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant. 17. It is settled law that no amount of evidence beyond pleadings can be looked into. 16. Faced with such situation, learned counsel for the respondent/defendant would contend that he had led sufficient evidence to prove his plea of adverse possession. I am afraid that I cannot agree with the submissions made by learned counsel for the respondent/defendant. 17. It is settled law that no amount of evidence beyond pleadings can be looked into. It is further well settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial as also the Appellate Court having regard to the rule of pleading would be entitled to reject the evidence wherefor there does not exist any pleading. 18. Once it is the fact situation obtaining in the present case, I fail to understand as to how the learned lower Appellate Court could have held the possession of the defendant to be adverse to the plaintiff. 19. Article 65 of the Limitation Act, 1963 reads as follows: “65. For possession of immovable property or any interest therein based on title Twelve years. When the possession of the defendant becomes adverse to the plaintiff. Explanation.- For the purposes of this Article- (a) where a suit is by a remainderman, a reversioner (other than a land-lord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession ; (b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) where the suit is by a purchaser at a sale in execution of a decree when the judgment debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment debtor who was out of possession.” Once the defendant acknowledges the plaintiff to be the owner of the land and has failed to prove his plea of adverse possession, I see no infirmity with the judgment and decree passed by the learned trial Court. The learned lower Appellate Court on the face of the pleadings set out by the defendant in the written statement, could not have reversed the findings of the learned trial Court that too by holding “I am of the view that the judgment and decree of the learned trial Court suffers from serious mis-appreciation of the pleadings in regard to the law of adverse possession, the evidence led in regard thereto by the appellant/defendant and accordingly such gross mis-appreciation had resulted in erroneous findings on the issues of acquisition of title by way of adverse possession by the defendant/appellant which has resulted in the impugned judgment and decree having been rendered by the learned trial Court.” 20. The learned lower Appellate Court has accepted the plea of adverse possession by relying upon para-1 of the written statement (infra) and has concluded as under: “Furthermore, the other reason which has weighed with the learned trial Court in rejecting the plea of adverse possession has been on the strength of the lack of pleadings in the written statement about commencement of the adverse possession against the true owner. However, the portion of the written statement extracted hereinabove suggests adequate and sufficient pleadings about the commencement of adverse possession against the true owner.” Such findings recorded by the learned lower Appellate Court are based on total mis-conception and mis-appreciation of the law of adverse possession. 21. Mr. Neeraj Gupta, learned counsel for the respondent/ defendant lastly pressed into service the judgment of this Court in Mange Ram vs. Smt. Hem Lata Bansal Latest HLJ 2012 (HP) 1088 to contend that the construction had been raised three decades back and, therefore, only a decree for compensation should be passed instead of ordering the demolition of the construction. He particularly relied upon para 24 of the report which reads as under: “24. In this case the findings recorded by both the courts below that the plaintiff acquiesced, being erroneous, are liable to be set aside. Plaintiff has not acquiesced; rather he was vigilant to protect his property. In normal circumstances, the decree for mandatory injunction ought to have been passed by demolition of the construction raised by the defendants. However, taking into consideration that the construction has been raised almost three decades back, plaintiff would be entitled only for decree of compensation in order to balance the equities. In normal circumstances, the decree for mandatory injunction ought to have been passed by demolition of the construction raised by the defendants. However, taking into consideration that the construction has been raised almost three decades back, plaintiff would be entitled only for decree of compensation in order to balance the equities. The Court can take into consideration that the prices of land have escalated in and around Solan town and current price of 11 square meters would be Rs. One lakh and 8 square meters would be Rs.75,000/-.” This contention has been stated, simply to be rejected. Mange Ram’s Case (supra) did not pertain to the question of adverse possession and it is in the peculiar facts and circumstances of that case that the order regarding compensation came to be passed in order to balance the “equities”. 22. What obviously has been missed out by the respondent is the facts of the present case. It is he who has raised the plea of adverse possession and it has to be remembered that “the person pleading adverse possession has no equity in his favour since he is trying to defeat the right of the true owner, therefore, it is for him to clearly plead and establish all necessary facts to establish his adverse possession” [Dr. Mahesh Chand Sharma (supra)]. Accordingly, all the three substantial questions of law are answered in favour of the appellant/ plaintiff and against the respondent/defendant. 23. Consequently, the appeal is allowed and the judgment and decree dated 22.4.2002 passed by learned Additional District Judge-II, Kangra at Dharamshala in Civil Appeal No. 21-P/1998 is set-aside while the judgment and decree passed by the learned trial Court is upheld. The parties are left to bear their own costs.