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2017 DIGILAW 2717 (ALL)

SHYAM SUNDER v. VED PRAKASH

2017-11-24

AJIT KUMAR

body2017
JUDGMENT Hon’ble Ajit Kumar, J.—Heard Sri A.N. Bhargava, learned counsel for the appellant and Sri K.D. Tripathi, learned counsel for the respondents. 2. This appeal had been admitted vide order dated 5.1.1987 on the following substantial questions of law as framed in the memo of Appeal: (a) Whether the present defence of the respondent was barred on account of earlier suit of 1967 decided in favour of appellant? (b) Whether the own admission made by the defendant-respondent proved that the shop was taken by Nagar Palika and the case of adverse possession was proved? 3. I have gone through the judgments of the trial Court as well as the lower appellate Court and have perused the records. 4. In order to appreciate as to whether these two substantial questions of law really arise from the two judgments of the Courts below which are non concurrent, it is necessary to appreciate the facts. According to the plaint case there is a Well between the office of the Congress Party and Rani Wala Madarsa and towards the South of the Well a Piyau (public place to offer drinking water hereinafter referred to as Piyau) with a Kothri beneath it. This Piyau is solid (Pakka) and permanent and it is being run by the plaintiff and the plaintiff claims to be the owner in possession. He further claims that the well is also a part of the Piyau. 5. Per contra the defendant has denied the title and possession of the plaintiff over any such Piyau and Kothri beneath it and claims adverse possession and thereby as he alleges constructed a shop covering a part of the Piyau and also encroached upon a part of the Well. 6. In order to establish his title the plaintiff has led evidence in the form of copy of the decree and judgment of original Suit No. 119 of 1967 which was filed by Nagar Palika, Hathras (hereinafter referred to as Municipal Board)and also the judgments passed in first appeal and second appeal. The aforesaid suit was instituted by Municipal Board claiming eviction of the present plaintiff who was defendant in that suit from the unauthorized possession of the Piyau and the Well. The aforesaid suit was instituted by Municipal Board claiming eviction of the present plaintiff who was defendant in that suit from the unauthorized possession of the Piyau and the Well. The stand taken by the Municipal Board in the suit was that it was the land belonging to Municipal Board, Hathras and there was never any agreement giving land or license in respect of any such Well or Piyau in favour of Shyam Sunder. The suit filed by Municipal Board was decreed. In Appeal filed by present appellant against the Municipal Board, Hathras, the judgment was reversed and Second Appeal No. 1067 of 1972 filed by the Municipal Board Hathras against Shyam Sunder was dismissed vide detailed judgment and order dated 27.11.1979. Thus the suit of Municipal Board stood rejected. It is further stand of the appellant herein that Well was constructed by the ancestors of the plaintiff. He claims that title of his ancestors flows from the fact that the land was acquired from the erstwhile ruler by his ancestors and the Well was constructed over the land by his ancestors. The plaintiff has also filed copy of the notice issued by Municipal Board on 12.12.1966 which has been marked as “Exhibit-10” as available on record and claims that from the notice it is absolutely clear that the Well belonged to Shyam Sunder. 7. Defendant in support of his defence has not led any evidence except oral one. He claims that he is in adverse possession of the place in question since 1947 as he came from Pakistan in view of the riot due to partition that took place in 1947 and thus he claims his possession since 1947. 8. As far as the claim of Shyam Sunder, the plaintiff-appellant with regard to the Piyau and the Kothri beneath the Piyau is concerned, the only evidence is in the form of the judgment of the first appeal No. 282 of 1971 arising out of O.S. No. 119 of 1967 and confirmed by the Hon’ble High Court in the Second Appeal No. 1067 of 1972, decided on 27.11.1989. These judgments are available on record. The High Court in its judgment has held that the dispute related to only a strip of land marked by latters A-I, having a Piyau and Kothri beneath it as shown in the plaint map of the said suit. These judgments are available on record. The High Court in its judgment has held that the dispute related to only a strip of land marked by latters A-I, having a Piyau and Kothri beneath it as shown in the plaint map of the said suit. It has been discussed that the plaint case of the Municipal Board was that the land was granted to the plaintiff-appellant by virtue of license vide resolution of the Municipal Board i.e., 21st August 1945 and which was in the form of strip of land and in view of the aforesaid resolution the construction of the Piyau was sanctioned by the Board. It was further stand of the Municipal Board that the license granted to Shyam Sunder was revoked due to the breach of conditions by notice dated 10.2.1967 and then the suit was filed. The said suit was decreed by the trial Court, however, in appeal the decree was reversed. The High Court observed in its judgment that Municipal Board contested the appeal only on two grounds: first was that the suit was not barred by limitation; and second was interpretation of Section 60 of the Indian Easement Act. While dealing with the first point of limitation, the Court recorded a finding to the effect that the construction of Kothri and the Piyau were admittedly made in 1946, by the present plaintiff-appellant who was defendant in that suit and he come into occupation for 13-14 years prior to the issuance of the notice in 1966. Accordingly High Court held that once the possession had been given to the appellant in 1946 or in 1947 the suit was not filed for two decades, the period exceeded 12 years and, therefore, the suit was clearly barred by limitation as Article 66 of the Limitation Act would be attracted. Having decided the suit to be barred by limitation Act, the Court did not deal with the issue of Section 60 of the Easement Act and thus the Second Appeal was dismissed. 9. In view of the finding recorded by the High Court in Second Appeal (supra) it is very much clear that the plaintiff-appellant herein has been in possession of the place where the Piyau and Kothri are situate since 1946, taking into account that there was admittedly a resolution of the Municipal Board giving possession on 21st August 1945. 9. In view of the finding recorded by the High Court in Second Appeal (supra) it is very much clear that the plaintiff-appellant herein has been in possession of the place where the Piyau and Kothri are situate since 1946, taking into account that there was admittedly a resolution of the Municipal Board giving possession on 21st August 1945. Thus it is clear that the license was granted to the appellant to raise construction of Piyau and Kothri and this cannot be ruled out that appellant has continued in possession over the land since after 21st of August 1945 and it appears that the constructions have taken place, sometimes in 1946. 10. The judgment of the High Court in Second Appeal (supra) has not been denied nor, disputed by the defendant-respondent. All that he claims that the judgment is not binding upon him as he was not a party in the said suit. The defendant-respondent has not led any other evidence except taking the plea that he has entered into an un-authorized possession over the land in question and thus he has been in adverse possession. It is worth noticing that the present suit was filed in 1981 as the defendant-respondent started interfering with the possession of the plaintiff-appellant over the Kothri and the Piyau. In the written statement the defendant has claimed possession over one step of the stairs that led to the Well and he further claimed that the plaintiff never objected to the demolition of stair case which led to the Piyau which was constructed over and above the Kothri. In the suit for permanent injunction the plaintiff has also claimed restoration of possession over the stairs which has been demolished by the defendant. Thus the unauthorized encroachment or forceful encroachment of the defendant over the disputed property is an admitted fact according to the defendant himself. It is also important to note that in the judgment of the lower Appellate Court in Civil Appeal No. 282 of 1971 arising out of original Suit No. 119 of 1967 it has been held that it is admitted to the parties that the Piyau was constructed by the appellant, who is plaintiff in the present suit, out of his own fund in 1946. According to the defendant’s own case in the written statement he had come to Hathras (India) after 1947 partition when riots between Hindu and Muslim took place. Thus in any view of the matter defendant is claiming right over the land only subsequent to the plaintiff-appellant’s claim of having constructed Piyau. It is further to be noticed that as far as the Well is concerned there is nothing in the written statement disputing the title or claim of the plaintiff over the Well which according to plaintiff, was constructed by his ancestors. The defendant did not claim any title either as licensee or lessee. Anyone who ever claimed title against present plaintiff-appellant was Municipal Board in earlier suit and that having been dismissed, the plaintiff-appellant has acquired good title over the suit property and one cannot take the plea and that plaintiff is not owner in possession of the suit property. It is a well-settled law that in matter of claim set up on the basis of adverse possession one must prove it to be hostile one as against the true owner from a particular time so as to make possession adverse to the title holder. In the case of Vasantiben P. Nayak and others v. Somnath M. Nayak and others, (2004) 3 SCC 376 , the Apex Court approved the legal principle laid down by Bombay High Court in the Case of Hanamgowda Shidgawda Patil v. Irgowda Shivgowda Patil, AIR 1925 Bombay, that in case of adverse possession, starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendant’s possession became adverse. It is held that defendants claiming title by adverse possession have to prove three elements namely hostile intention; long and uninterrupted possession; and exercise of the right of exclusive ownership openly and to the knowledge of the owner. Similar view has been taken by the Apex Court again in the case of Saroop Singh v. Banto and others, (2005) 8 SCC 330 and it is held that requisite animus for the claim of adverse possession is the hostile possession to the knowledge of owner from a time to the period limitation is set up. Similar view has been taken by the Apex Court again in the case of Saroop Singh v. Banto and others, (2005) 8 SCC 330 and it is held that requisite animus for the claim of adverse possession is the hostile possession to the knowledge of owner from a time to the period limitation is set up. Following the same line of legal proposition the Apex Court in the case of Yogeshwar Prasad v. National Institute of Education Planning and Administration, (2010) 14 SCC 323 , has held. “5. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The Courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.” 11. Applying the aforesaid principle to the pleadings raised by defendant and the evidence led, there is nothing to lead inevitable conclusion that his possession was from a particular time and that it was hostile to the plaintiff within his knowledge and to the outer world for the requisite period of limitation. 12. In the entire written statement filed by the defendant there is no such specific time mentioned of beginning of possession. A general statement has been made that he came from Punjab (Pakistan) in 1947 and his possession was of last 30 years. The written statement has been verified on 2.7.1981. In the earlier part of written statement Para-8 he stated that he took possession in 1947 and from that time he was in possession. A general statement has been made that he came from Punjab (Pakistan) in 1947 and his possession was of last 30 years. The written statement has been verified on 2.7.1981. In the earlier part of written statement Para-8 he stated that he took possession in 1947 and from that time he was in possession. Written statement has been verified in 1981 and possession is claimed since last 30 years, so according to his own contradictory averments defendant was not sure of time and period of his possession. In the plaint on the contrary, statement is that since two and a half years defendant has taken forceful possession taking advantage of the dispute pending between plaintiff and Municipal Board. This averment has not be specifically denied nor, in special plea taken in written statement, this averment has been stated to be false for certain specific reasons. In Para-2 of written statement it is only stated that Paras 2, 3, 4, 5, 6 & 7 not admitted and denied. This is a vague denial particularly when defendant is taking the plea of adverse possession. The second appeal is decided by the High Court vide judgment and order dated 27.11.1979 and plaint in the present suit was verified on 12.3.1981. Accordingly the averment made in Para-3 of the plaint that defendant took forceful possession by carrying out certain demolition over the suit properly two and a half years back is correct and liable to be accepted. Thus I have no hesitation in holding that the defendant utterly failed to get his claim of adverse possession passed on the well laid down tests; a) on what date he came into possession; b) what was nature of his possession; c) how long his possession continued; d) his possession was open and undisturbed (as per Karnataka Board of “Wakf” v. Government of India, (2004) 10 SCC 779 ). 13. In view of the above the findings of lower appellate Court of adverse possession are perverse for misreading and misconstruing the pleadings raised and is unsustainable and liable to be reversed and is hereby reversed. 14. 13. In view of the above the findings of lower appellate Court of adverse possession are perverse for misreading and misconstruing the pleadings raised and is unsustainable and liable to be reversed and is hereby reversed. 14. Coming to the substantial questions of law framed in the present appeal I hold that the defendant in the first instance could not have set up any defence against the claim of the plaintiff over the strip of land over which he has a Piyau and a Kothri beneath it, in view of the findings recorded by the first appellate Court in Civil Appeal No. 282 of 1971 decided on 10.12.1971 arising out of original Suit No. 199 of 1967. 15. Further even if it is held that such specific defence of adverse possession by the third party was not barred, the defence of the defendant having got demolished in the present suit independent of the judgment of the High Court in earlier suit, the suit of plaintiff-appellant herein deserved to be decreed. Considering the averments made in the written statement and in the absence of any material evidence to show adverse possession for the last more than 12 years prior to the date of institution of present suit as discussed in the earlier part of this judgment the second substantial question of law is also held to have arisen in favour of the plaintiff to allow this appeal. 16. In view of the above judgment and decree passed by the lower Appellate Court dated 22nd October, 1986 in Civil Appeal No. 54 of 1986 is set aside and the judgment and decree passed by the trial Court dated 15.2.1986 in O.S. No. 88 of 1981 is restored. In the circumstances there will be no order as to cost.