Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 807 (HP)

Ram Saroop Saini v. Gurmeet Singh

2014-06-27

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. The defendant is the appellant before this Court, who is aggrieved by the judgment and decree dated 03.02.2014 passed by learned District Judge, Una, in Civil Appeal No.65-XIII/2013 whereby he affirmed the judgment and decree dated 17.06.2013 passed by learned Civil Judge (Junior Division), Court No.(III), Una, in Civil Suit No.176 of 2004 and Counter Claim No.149 of 2006. 2. The plaintiff-respondent (hereinafter referred to as respondent) filed a suit for possession through ejectment of shop measured and bounded as under:- East 3.00 Metre Land of Plaintiff West 3.00 Metre PWD road Una to Gagret North 4.00 Metre Land of plaintiff South 4.00 Metre Village Gohar The aforesaid shop was marked with letters ABCD shown red in colour in the site plan, bearing Khasra No.2996, Khewat No.305 min, Khatauni No.486, situate in Upmohal Pandoga Nichala, Mohal Pandoga, Tehsil and District Una and for recovery of Rs.8,500/- ( arrears of rent Rs.450/- per month w.e.f. May, 2003 to October, 2004 along with interest). It was averred that the land measuring 0-00-12 Sq. metres bearing Khewat No. 305 min, Khatauni No. 486 min, Khasra No.2996 was owned by the respondent along with Sadhu, son of Gonda and other co-sharers and the same was in exclusive hissedari possession of aforesaid Sadhu, who constructed a shop over the same and rented out to the defendant-appellant (hereinafter after referred to as appellant) on monthly rent of Rs.450/-and the tenancy was oral. It was further averred that said Sadhu Ram sold his land along with disputed shop to the respondent for a consideration of Rs.70,000/-through a registered sale deed dated 20.05.2003 and the respondent was put in possession at that time and to this effect mutation No.474 was duly sanctioned in the record of right in favour of the plaintiff-respondent. It was also averred that the appellant did not pay the rent since May, 2003 inspite of repeated demands of the respondent and ultimately a notice under Section 106 of the Transfer of Property Act was served upon the appellant on 05.10.2004 thereby terminating the tenancy of the appellant on 31.10.2004 with a further demand of payment of arrears of rent. The appellant gave reply dated 14.10.2004 setting up title of adverse possession in himself, hence, this suit. 3. The appellant gave reply dated 14.10.2004 setting up title of adverse possession in himself, hence, this suit. 3. The suit was contested by the appellant by filing written statement wherein preliminary objections regarding cause of action, locus standi suppression of material facts bad for joinder of necessary parties were taken. On merits, the appellant stated that the respondent was not entitled for the relief claimed as he had suppressed the real and material facts from the Court. It was averred that the appellant had constructed the disputed shop in May, 1985 by investing huge money in the presence of respondent, Sadhu and other co-sharers and denied their ownership. The respondent along with others are seeing the constructive possession and running of confectionery and tea shop of appellant since then and his possession over the disputed land is peaceful, continuous and hostile since May, 1985 and after passing of 12 years of the possession of appellant, the title of the disputed shop has been matured in favour of the appellant on May, 1997. It was further averred that after the maturity of the title in favour of the appellant, the respondent has no right, title and interest therein and as such he had no locus-standi to file the suit. As per the appellant, he had invested huge money in the construction of the shop and it was denied that Sadhu Ram constructed the shop and rented out to the appellant, as alleged. It was also averred that respondent never came in possession after sanction of mutation and wrong revenue record was prepared against the actual constructive possession of the appellant. The sale deed dated 20.05.2003 is alleged to be false and has no binding effect on the right, title and interest of the appellant as the same was executed after maturity of title in May, 1997, in favour of the appellant. The appellant averred that the sale deed executed by Sadhu in favour of respondent was false and fabricated and prayed for dismissal of the suit. 4. The appellant averred that the sale deed executed by Sadhu in favour of respondent was false and fabricated and prayed for dismissal of the suit. 4. The appellant filed counter claim and averred that he had constructed the shop measuring 3 metre x 4 metre upon the land bearing Khewat No. 305 min, Khatauni No. 486 min, Khasra No.2996 (0-00-12) hectares, situate in Upmohal Mauza Pandoga Nichla, Tehsil and District Una, in May 1985 by investing a lot of money in the presence of respondent, Sadhu, s/o Gonda and other co-shares by denying their ownership over the disputed site. Hence, counter claimant sought a decree for declaration that he has become owner in possession of the disputed shop and land underneath by virtue of adverse possession and the sale deed executed by Sadhu in favour of the respondent and mutation No.474 to the extent of affecting his rights is null and void and in the alternative decree for permanent injunction restraining the respondent from taking forcible possession, interfering, demolishing, alienating the suit property, was sought. 5. The respondent filed replication to the written statement filed by the appellant denying the averments of the written statement and reasserted his whole claim. 6. Written statement to counter claim was also filed by the respondent in which it was averred that the disputed shop was constructed by Sadhu, who thereafter rented out the same to appellant. It was further averred that the appellant wanted to grab the disputed shop belonging to the respondent. The respondent denied the plea of adverse possession taken by the appellant and the disputed shop being permissive is in the capacity of a tenant. The sale deed is legal and valid and has rightly been executed by Sadhu and subsequent mutation has rightly been sanctioned in the revenue record and a prayer for dismissal of the counter claim was made. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court on 23 11 2007:- 1. Whether the plaintiff is entitled for possession of the suit property as shown in letter ABCD in the site plan? OPP 2. Whether the plaintiff is entitled for arrear of rent @ Rs.450/-per month with effect from May, 2003 to October, 2004, as prayed? OPP 3. Whether the plaintiff has no cause of action against the defendant? OPD 4. Whether the plaintiff is entitled for possession of the suit property as shown in letter ABCD in the site plan? OPP 2. Whether the plaintiff is entitled for arrear of rent @ Rs.450/-per month with effect from May, 2003 to October, 2004, as prayed? OPP 3. Whether the plaintiff has no cause of action against the defendant? OPD 4. Whether the plaintiff has no locus-standi to sue the defendant? OPD 5. Whether the defendant has become owner of the disputed shop by way of adverse possession, as alleged? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the sale deed dated 20.05.2003 executed by Sadhu in favour of the plaintiff with regard to suit property along with other land is liable to be declared null and void? OPD 8. Whether in the alternative the defendant/counter claimant is entitled for permanent injunction? OPD 9. Whether the counter claim has not been valued properly for the purpose of Court fees and jurisdiction? OPP 10. Relief. 8. After recording and evaluating the evidence led by the parties, the learned trial Court on 17.06.2013 partly decreed the suit filed by the respondent whereby he was held entitled for possession through ejectment of appellant from the disputed shop, whereas, the counter claim filed by the appellant was dismissed. Feeling aggrieved by the judgment and decree passed by the learned trial Court, both appellant and respondent herein filed separate appeals before learned lower appellate Court, who vide his judgment and decree dated 03.02.2014 dismissed both the appeals and upheld the judgment and decree dated 17.06.2013 passed by the learned trial Court It is against these judgments and decrees passed by the learned Courts below that the appellant-defendant has preferred the present appeal before this Court. 9. I have heard Shri Subhash Sharma, learned counsel for the appellant and Shri N.K. Thakur, learned Senior counsel assisted by Shri Rohit Bharoll, Advocate, and carefully gone through the records of case. 10. As per the pleadings of the parties, the plaintiff-respondent claimed himself to be the owner in possession of the shop in question after having purchased the same from a co-sharer Sadhu Ram and claimed that the appellant was a tenant over the same on payment of Rs.450/-per month and was in arrears of rent with effect from May, 2003. 10. As per the pleadings of the parties, the plaintiff-respondent claimed himself to be the owner in possession of the shop in question after having purchased the same from a co-sharer Sadhu Ram and claimed that the appellant was a tenant over the same on payment of Rs.450/-per month and was in arrears of rent with effect from May, 2003. On the other hand, the claim of the appellant-defendant was that he was never inducted as a tenant and infact has taken over the suit property in the year 1985, raised construction of the shop and thereby perfected his title by way of adverse possession after expiry of 12 years which period comes to 1997. 11. At the outset, it may be observed that a person setting up a title by way of adverse possession has no equity in his favour. What would constitute adverse possession would depend on facts and circumstances of each case. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. A party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec pr ecario” 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 wrongful disposition of the rightful 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. Now when the claim of the defendant is tested on the aforesaid principles, it would be revealed that the appellant-defendant has infact failed to prove his adverse possession. (Refer Dr. Mahesh Chand Sharma vs. Raj Kumari Sharma (Smt.) and others (1996) 8 SCC 128 ). 12. Now when the claim of the defendant is tested on the aforesaid principles, it would be revealed that the appellant-defendant has infact failed to prove his adverse possession. Examining himself as DW-1 before the learned trial Court where he filed his affidavit in examination-in-chief and when put himself to the test of cross-examination, he stated that he had raised the construction of the shop as the previous owner had given land to him. Meaning thereby, this was not a case of hostile possession, but at best, could be termed to be a case where the defendant had been inducted as ‘licensee’ over the suit property by its owner Sadhu Ram. The very inception of taking over possession is in the capacity of a licensee, therefore, it cannot be construed to be a hostile possession in denial to the rights of the true owner. Not only this, the defendant-appellant has categorically stated however, the land underneath the same belongs to Sadhu Ram and he considers Sadhu Ram to be the owner thereof. Meaning thereby, the intention to hold suit property in denial to the rights of the true owner is wanting. If put differently, the animus possidendi to retain the suit land by way of adverse possession is missing. The findings recorded by the learned Courts below to this effect are pure findings of fact and cannot be interfered with in exercise of appellate jurisdiction under Section 100 CPC. 13. By now it is well settled principle of law that whenever judgments are based upon concurrent findings of fact that too primarily on oral evidence, this Court will be loathe to interfere while exercising its appellate jurisdiction under Section 100 CPC until and unless there is a patent illegality apparent on the records of the case. However, in the fact situation as obtaining in the instant case, this Court would be exceeding its jurisdiction to enter into the domain of re-appreciation of evidence that too for the purpose of arriving at a different conclusion than the one arrived at by the learned Courts below. 14. Technicalities apart, the learned counsel for the appellant has failed to point out any jurisdictional error or patent illegality apparent on the records of the case in either of the judgments rendered by the learned Courts below. 14. Technicalities apart, the learned counsel for the appellant has failed to point out any jurisdictional error or patent illegality apparent on the records of the case in either of the judgments rendered by the learned Courts below. I am otherwise not persuaded to take a different view than the view taken by the learned Courts below. 15. Accordingly, I find no merit in the present appeal and the same is dismissed, along with all pending applications, if any, leaving the parties to bear their own costs.