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2014 DIGILAW 812 (HP)

Puran v. Bihari Lal

2014-06-30

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge The instant appeal has been directed against the impugned judgment and decree rendered on 23.9.2002 in Civil Appeal No.1 34-N/XIII/2000 by the learned District Judge, Kangra, whereby, the learned First Appellate Court allowed the appeal preferred by the plaintiff/respondent. The effect thereof, is, that the decree for compensation qua the suit property accorded in favour of the plaintiff/respondent was modified by the learned First Appellate Court, with, a decree for vacant possession of the suit property, in, favour the plaintiff/respondent. 2. The brief facts of the case are that the plaintiff has filed a suit for vacant possession of the land comprised in khata No.59 min, Khatauni No.177, Khasra No.406, 407, 408, plots-3, measuring 0-03-60 HM, situated in Mohal Kandi, Mauza Bhungara, Tehsil Nurpor, District Kangra, H.P. on the averment that he is co-sharer of the suit land and he never gave the possession of the suit land to the defendant for any purpose nor the defendant was inducted as tenant by the owners. The possession of the defendant over the suit land is stated to be without any legal status since the year 1982. The defendant being a forceful person, has during the settlement operation in the month of November, 1982, in connivance and at the back of the plaintiff taken over the possession of the suit land and raised a temporary structure thereon. When the defendant was asked by the plaintiff to handover the vacant possession of the suit land, as also, to remove the debris of structure from the suit land, the defendant assured the plaintiff to hand over the vacant possession of the suit, if, after due demarcation, it is found to be in his illegal and unauthorized possession. On being measured by the settlement officials, the suit land was found to be owned by the plaintiff along with other co-sharers and the defendant was found to be in unauthorized possession of the same. Hence the suit. 3. The suit of the plaintiff was resisted by the defendant. In the written statement filed by the defendant to the plaint, he had taken preliminary objections inter alia locus stand; limitation; estoppel; valuation and adverse possession. The defendant had pleaded that Ghungar, the brother of the defendant is also a necessary party to the suit, who is in possession of the suit land, as well, as, of the gair mumkin abadi. The defendant had pleaded that Ghungar, the brother of the defendant is also a necessary party to the suit, who is in possession of the suit land, as well, as, of the gair mumkin abadi. On merits, the defendant had denied the averments made by the plaintiff in his plaint and specifically pleaded, that, the parties, are dam oustees, who came to Tehsil Nurpur, in the year 1972. The plaintiff and another co-sharer purchased the suit land and also asked the father of the defendant to settle nearby them. The plaintiff and his brother Banshi entered into an agreement to sell on 15.12.1975 for one kanal of land for consideration of Rs.1000/- for residential purposes with the father of the defendant. In pursuance to the said agreement to sell a sum of Rs.1000/-, the full and final consideration of sale was given to the plaintiff and his brother, by the father of the defendant. The registered sale deed could not be effected as the father of the plaintiff died in the month of September, 1976 and during his life time and after him, the defendant is ready and willing to perform his part of the contract and get the sale deed registered but now the plaintiff has become dishonest, as such, the plaintiff is not ready to perform his part of the contract and is demanding more money. The plaintiff and his brother themselves had put the defendant’s father into the possession as owner of the suit land. Thereafter, the father of the defendant constructed his residential house on the suit land without any objection from the plaintiff. The house of the defendant and his brother consists of three rooms and two kitchens with verandah and Ghural etc. The defendant had further pleaded that even otherwise, the defendant has become owner of the suit land by way of adverse possession being in possession of the suit land for more than the statutory period. The defendant denied that he took the possession of the suit land in the month of November, 1982 but specifically pleaded that he took over the possession of the suit land in the month of December, 1975 since the time of his father. Immediately thereafter, within two months to the knowledge of the plaintiff and his brother as also other co-sharers, who never objected to it, constructed the house. 4. Immediately thereafter, within two months to the knowledge of the plaintiff and his brother as also other co-sharers, who never objected to it, constructed the house. 4. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to recover possession of the suit land? OPP. 2. Whether the plaintiff has got no locus standi to file the present suit? OPD 3. Whether the suit is not within time? OPD 4. Whether the defendant is in possession of suit land by virtue of the sale agreement, so alleged in preliminary objection N o.3, if so, its effect? OPD 5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 6. Whether the suit has not been properly valued for purpose of jurisdiction and court fee, if so, what is the correct valuation of the suit property? OPD 7. Whether the suit is bad for non joinder of necessary parties? OPD 8. Whether the defendant has become owner of the suit land by way of adverse possession? OPD 9. Relief. 6. On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court partially decreed the suit of the plaintiff for compensation in respect of the suit property. In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court allowed the appeal and modified the decree of compensation to the plaintiff/respondent with a decree of vacant possession of the suit property in favour of the plaintiff/respondent. 7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 22.4.2003, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. When the appeal came up for admission on 22.4.2003, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the learned lower appellate court is right in decreeing the suit filed by the respondent/plaintiff for possession by demolition of structure without setting aside the categorical findings recorded by the learned trial Court on issue No.5 holding the respondent/plaintiff being estopped from filing the suit due to his act and conduct? Substantial Question of Law No.1 8. Admittedly, the defendant/appellant has taken the plea of his having acquired title to the suit property by way of adverse possession. However, the said plea remained un-established, as well, as, unsubstantiated by adduction of any material at the instance of the defendant/appellant to sustain this plea. Consequently, the said plea of the defendant/appellant, of his having acquired title to the suit property by prescription ensuing from the afflux of time, is, to be construed to have failed. The defendant/appellant canvassed the plea, of his having raised abadi, on, the suit land in the year 1975. His claim to retention of abadi, as, raised upon the suit land, is, anvilled upon twofold contentions (a) his having entered upon and being in settled possession of the suit property since the year 1975, in, pursuance to the agreement entered inter se his predecessor in interest and the plaintiff/respondent, whereby the suit land was mutually agreed to be sold for a sum of Rs.1,000/-, to the predecessor in interest of the defendant/appellant. Further, it is asserted by the defendant/appellant, that, in pursuance to the oral agreement to sell the suit land, the plaintiff/respondent had been paid a sum of Rs.800/- by the predecessor in interest of the defendant/appellant, hence, the defendant/appellant entered into possession of the suit land, which manner of his entering into possession of the suit land is contended to invite or attract the principle of part performance, envisaged in Section 53-A of the Transfer of Property Act. Therefore, even if, no deed of conveyance stands executed inter se the parties, nonetheless, the factum of attraction of principle of part performance, as, envisaged under Section 53-A of the Transfer of the Property Act deprives and ousts the plaintiff/respondent, to, claim restitution of possession of the suit property from the defendant/appellant and (b) the defendant/appellant having been settled in possession upon the suit property, by the plaintiff/respondent, in the year 1975, hence, with the plaintiff/respondent having accorded permission to the predecessor in interest of the defendant/appellant to occupy and settle upon the suit property, as also, when the predecessor in interest of the defendant/appellant, raised construction thereon or an abadi upon the suit land, and when at the stage of raising of such construction upon the suit land it, having been not resisted or stalled at the instance of the plaintiff/respondent, rather, its being permitted to continue to exist, since the date of its construction, upto the date of institution of the suit in the year, 1993. Consequently, for, omission of or for lack of any step on the part of the predecessor-in-interest of the plaintiff/respondent, to, either resist, the act of the predecessor-in-interest of the defendant/appellant, in raising construction upon the suit land or their omission to promptly file appropriate proceedings before the appropriate Court of law for getting the construction as raised upon the suit land, at, the instance of the predecessor in interest of the defendant/appellant or the defendant/appellant, demolished, conveys acquiescence and waiver on the part of the plaintiff/respondent to the “abadi” raised by the defendant/appellant on the suit land. As a sequel, it acts as an embargo, to, their seeking vacant possession of the suit land. 9. The defendant/appellant asserts and claims possession of the suit property on the basis of agreement to sell entered, into, inter se his predecessor in interest and the plaintiff/respondent. However, as, aptly concluded by the learned trial Court and aptly concurred by the learned First Appellate court, the agreement to sell has neither come to be cogently proved nor firmly established. Substantiation thereof by the oral testimony of the defendant and corroboration lent to it by the deposition of DW-2 Baldev Singh, Lamberdar, comprises insufficient, nebulous and extremely frail evidence. Substantiation thereof by the oral testimony of the defendant and corroboration lent to it by the deposition of DW-2 Baldev Singh, Lamberdar, comprises insufficient, nebulous and extremely frail evidence. In other words, in the absence of adduction of the best evidence comprised in the production of the recorded agreement to sell executed interse the plaintiff/respondent and the predecessor in interest of the defendant/appellant, for, constraining this Court to record, firm findings that any agreement to sell the suit property was entered into, obviously, renders such a plea to capsize. Besides, when there is, no, proof of any amount towards the sale consideration having been tendered in pursuance to such purported agreement to sell, even if, oral by the predecessor in interest of the defendant/appellant to the plaintiff/respondent, in pursuance whereof, the predecessor in interest of the defendant/appellant entered into possession of the suit property and on strength thereto, he claims or stakes attraction of the provisions of Section 53-A of the Transfer of Property Act, to vindicate his possession comprised in receipts unflinchingly personifying, such tendering of the payment qua the suit property by the predecessor-in-interest of the defendant/appellant to the plaintiff/respondent, further, renders the plea to stagger. Oral evidence, as adduced on record, qua its defrayment, in pursuance to purported oral agreement to sell arrived at inter se the predecessor in interest of the defendant/appellant and the plaintiff/respondent, is insufficient. When, it, too stands unsubstantiated, as a concomitant, then, a firm and forthright conclusion, which, formidably ensues, is, that especially when there, is, also a alternative plea raised by the defendant/appellant of his predecessor-in-interest having been permitted by the plaintiff/respondent, to, settle over and upon the suit property, hence, possession over and upon the suit property at his instance being, hence, permissive, to, the considered mind of this Court, being a pre-meditated thought in the alternative, yet, in contradiction to the plea of acquisition of title under purported agreement to sell, props the conclusion that the defendant/appellant settled upon the suit land without any title to it. 10. In aftermath, when a part of the agreed sale consideration was never defrayed by the plaintiff/respondent to the predecessor in interest of the defendant/appellant, as such, it upstages and dethrones the plea of the defendant/appellant having acquired any legally vindicable possession of the suit property, by, attraction of principle as envisaged under Section 53-A of the Transfer of Property Act. In aftermath, when a part of the agreed sale consideration was never defrayed by the plaintiff/respondent to the predecessor in interest of the defendant/appellant, as such, it upstages and dethrones the plea of the defendant/appellant having acquired any legally vindicable possession of the suit property, by, attraction of principle as envisaged under Section 53-A of the Transfer of Property Act. A further dethronement, to, the contention as addressed by the learned counsel for the defendant/appellant of the latter having acquired in the above manner a vindicable right, to, sustain his possession over the suit property, is, sequeled by the fact of the predecessor in interest of the defendant/appellant, having not acquired any settled possession of the suit property in the year 1975 under the plaintiff/respondent, as, portrayed by the Jamabandi, qua the suit property for the year 1975-76, comprised in Ex.P-3, which rather displays the fact of the owner of the suit property being Baldev Singh and not the predecessor in interest of the plaintiff/respondent. Naturally, then, the fact of any purported agreement to sell having been entered into inter se the predecessor in interest of the defendant/appellant and the plaintiff/respondent qua the suit property gets wholly benumbed and negated. Even though, this Court has concluded, that, there is no force and vigour in the contention of the learned counsel for the defendant/appellant that his possession over the suit property is vindicable, in as much, as, the principle as envisaged in Section 53-A of the Transfer of property Act, is, not attractable to the facts and circumstances of the case. However, when the plaintiff/respondent does not contest the fact of defendant/appellant having raised abadi or house on the suit land, in the year 1982. Obviously, when the suit property was owned by the plaintiff/respondent, his having not baulked, the predecessor in interest of the defendant/appellant or the defendant/appellant, at, the time when he was raising construction upon the suit land or an abadi thereon, such omission portrays their acquiescence, waiver and abandonment. What aggravates and accentuates the waiver on the part of the plaintiff/respondent, to, oust the defendant/appellant from the suit land, is, the inordinately procrastinated delay, in, the institution of the suit against the defendant/appellant, for vacant possession of the suit land. What aggravates and accentuates the waiver on the part of the plaintiff/respondent, to, oust the defendant/appellant from the suit land, is, the inordinately procrastinated delay, in, the institution of the suit against the defendant/appellant, for vacant possession of the suit land. The waiver and abandonment by the plaintiff/respondent of any claim qua the suit property arising from the omissions aforesaid, when construed, in, conjunction with the delay, in the institution of the proceedings, at, the instance of the plaintiff/respondent, to, get vacant possession of the suit property from the defendant/appellant, consequently, while displaying aggravated acquiescence, hence, estop the plaintiff/respondent to claim vacant possession of the suit property. 11. In sequel thereto, the view as taken by the learned first Appellate court, in as much, as, its discarding the effect and the consequence of waiver, estoppel and abandonment palpably arising from the aforesaid discussion, has, erroneously led the learned First Appellate Court to render a decree in favour of the plaintiff/respondent for vacant possession of the suit property. The rendition of the said decree, being in gross mis-appreciation of the evidence on record/material on record, necessitates interference by this Court. Consequently, it is set aside. In sequel, the decree of the learned trial Court anvilled upon proper appreciation of evidence on record and correct application of law to it and its ordering for the defrayment of compensation to the plaintiff/respondent while computing it on the strength of the prevailing market value of the suit property and thereby on completion of computation, the defendant/appellant depositing the same within 30 days of the rendition of the judgment with 4% simple interest, is, maintained and affirmed. Substantial question of law is answered against the plaintiff/respondent and in favour of the defendant/appellant. Consequently, the appeal is allowed and the judgment and decree dated 30.8.2000 rendered in Civil Suit No.378 of 1993 by the learned Sub Judge 1st Class (II), Nurpur is upheld and the judgment and decree dated 23.9.2002, rendered in Civil Appeal no. 1 30-N/XIII/2000 by the learned District Judge, Kangra at Dharamshala is set aside.