Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1872 (ALL)

Shambhu Dayal v. Narayan Das

2018-08-27

SIDDHARTH

body2018
JUDGMENT : Siddharth, J. 1. Heard Sri Sumit Daga, learned counsel for the appellant and Ms. Rama Goel "Bansal", learned counsel for the respondent. 2. This is defendant's second appeal against the judgment and decree dated 16.03.2018 passed by Sri Sanjay Kumar Malik, Additional District Judge/Special Judge, E.C. Act, Jhansi in Civil Appeal No. 69 of 2016 and the judgment and decree dated 06.08.2016 passed by Sri Ranvijay Pratap Singh, Civil Judge (Senior Division)/Fast Track Court, Jhansi in Original Suit No. 378 of 2014. 3. Plaintiff instituted suit praying for possession over house No. 1339, present house No. 794, new house No. 1662/1A, Civil Lines, Ward No. 51, Gondu Compound, Sipri Bazar, Jhansi; that this property was received by the plaintiff from his maternal grandfather, Baldeo Singh, consisting of one room, angan, bathroom and open space; that the plaintiff and defendant belongs to same caste and known to each other; that defendant was residing in a house on rent and was being evicted by his landlord and therefore plaintiff permitted him to reside in the property in dispute as a licensee with the understanding that when the plaintiff will need the property he will vacate the same; that the defendant has purchased a house No. 768, Gondu Compound, Jhansi on 10.07.2002 and is residing therein but he is not vacating the house of the plaintiff and when the plaintiff asked him to vacate the same, he instituted a suit No. 239/2008 praying for a decree of injunction against the plaintiff claiming himself to be the tenant of the disputed house; that the plaintiff filed his written statement alleging him to be a licensee and also a counter claim for possession over the property. The trial court dismissed the suit of the defendant on 18.11.2009 and decreed the counter claim of the plaintiff for possession; that thereafter defendant preferred a Civil Ap-peal No. III of 2009 and the plaintiff preferred a Cross Appeal No. 111A of 2009 which were decided by the lower appellate court by the judgment and decree dated 09.05.2011; that the lower appellate court neither accepted the defendant as tenant nor licensee but permitted the parties to take further proceedings regarding the house and dispute; that the defendant admitted that the plaintiff is the owner of the house but the lower appellate court neither accepted him to be tenant nor licensee; that therefore the defendant is only a trespasser and the plaintiff is entitled to get possession of the disputed house from him; the defendant is not ready to handover the possession therefore the suit has been instituted. 4. The defendant filed his written statement denying the plaint allegations and also the ownership of the plaintiff and claimed adverse possession over the house in dispute on the basis of his possession for last about 5 years; that 12 years prior to the institution of the suit plaintiff had no possession over the suit property and therefore the suit is barred by time; that the defendant was never the licensee of the plaintiff and has become owner thereof; that in the earlier proceedings of Suit No. 239 of 2008, the defendant has neither been accepted as tenant nor licensee and therefore he is a trespasser who has perfected his title by way of adverse possession and the suit of the plaintiff deserves to be dismissed. 5. On the pleadings of the parties relevant issues were framed by the trial court and the first issue regarding the ownership of the plaintiff and his entitlement to get possession over the same from the defendant, fourth issue, regarding the suit being barred by time and the fifth issue regarding relief to be granted to the plaintiff were framed and decided by the learned trial court. 6. 6. After considering the evidence and relevant law the trial court came to the conclusion that prior to the judgment dated 09.05.2011 of the lower appellate court in the earlier proceedings arising out of Original Suit No. 239 of 2008, defendant had admitted himself to be a tenant and therefore his claim of adverse possession on the basis of possession of 35 years cannot be accepted. At the most his claim of adverse possession can be accepted from 09.05.2011 when the earlier judgment of the lower appellate court was passed and thereafter 12 years period of continuous adverse possession is not proved since the present suit has been instituted in the year 2014. The defendant was inducted in the property with the consent of the plaintiff and thereafter he did not vacate the property and therefore the plea of adverse possession is ill founded. Regarding the issue No. 4 it was held that after the judgment and decree of the lower appellate court dated 09.05.2011, 12 years period has not passed therefore the suit for possession as per Article 65 of the Limitation Act is not barred. Regarding issue No. 5 it was held that the plaintiff is entitled to the relief claimed since the defendant has failed to prove his plea of adverse possession and the suit of the plaintiff was decreed. Aggrieved by the same the defendant preferred a Civil Appeal before the lower appellate court which has confirmed the findings of the trial court and has dismissed the Civil Appeal and hence this second appeal. 7. The learned counsel for the defendant-appellant has argued that the burden of proof of the plaint case was upon the plaintiff to prove that the defendant was a trespasser and he failed to discharge the same but the court below had decreed the suit of the plaintiff. Reliance has been placed on the judgment of this Court in the case of Vidhyawati Verma v. Amita Srivastava and others (2012) Alld CJ 324 he has placed reliance in paragraph 14 thereof which is as follows:- 14. Under Order VIII, Rule 10, C.P.C. the Court has been enabled to proceed to deliver a judgment where defendants or one of several defendants have chosen not to contest the suit by filing written statement but it does not mean that plaintiff is absolved from his obligation to prove the case. Under Order VIII, Rule 10, C.P.C. the Court has been enabled to proceed to deliver a judgment where defendants or one of several defendants have chosen not to contest the suit by filing written statement but it does not mean that plaintiff is absolved from his obligation to prove the case. The procedure prescribed therein is discretionary. In the context of Order VIII, Rule 10, C.P.C. the Apex Court has considered the matter in Balraj Taneja & Anr. v. Sunil Madan & Anr. (1999) 8 SCC 396 : ( AIR 1999 SC 3381 ) and observed: "30. As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8." 8. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8." 8. Further argument advanced is that where 12 years adverse possession is found the title of the party in possession become perfect. Reliance has been placed on the judgment of this Court in the case of Vishwanath v. D.D.C. Varanasi and others he has placed reliance upon paragraph 19 of the judgment which is as follows:-- "19. It may be placed on record that no attempt was made by the learned counsel for the petitioner to challenge the finding with regard to the partition in family. The said finding is thus, final and binding on the parties. The petitioner's father was a co-sharer at one point of time around year 1900 subsequent partition in the family is also an accomplished fact. This cuts the very root of the petitioner's stand. The petitioner could not produce any evidence to show his possession over any piece of land. He has also not disputed the legality and validity or want of knowledge about the four sale deeds referred to above which were executed more than 12 years ago prior to commencement of the consolidation operation in the village. The names of the vendees have been recorded without any whisper by the petitioner. In any case, the execution of sale deed without there being any protest by the petitioner for a period more than 12 years proves the ouster of the petitioner from the land in question, even if he had some semblance of title." 9. Learned counsel for the plaintiff-respondent has argued that the judgment and decree passed in earlier proceedings became final wherein the defendant was neither accepted as tenant of the plaintiff nor his licensee and the lower appellate court left it open for the parties to establish their relationship in subsequent proceedings. Accordingly, the suit was instituted by the plaintiff on the basis of the earlier judgment of the lower appellate court that the defendant is neither tenant nor licensee and therefore he is only a trespasser and may be ousted from the property in dispute and possession may be handed over to him. Accordingly, the suit was instituted by the plaintiff on the basis of the earlier judgment of the lower appellate court that the defendant is neither tenant nor licensee and therefore he is only a trespasser and may be ousted from the property in dispute and possession may be handed over to him. The courts below have therefore found that the plaintiff is nothing but trespasser and the defendant has failed to prove his plea of adverse possession against the plaintiff and therefore the suit of the plaintiff has been decreed for possession over the suit property. 10. After considering the rival submissions it is clear that the findings recorded by the courts below in the earlier suit and Civil Appeal have attained finality and therefore the defendant is deemed to be neither the tenant nor licensee of the disputed property and he cannot be anyone except a trespasser in the property. His defence of perfecting his title by way of adverse possession has not been found to be proved by both the courts below and therefore the judgment and decree passed by both the courts below do not appear to suffers from any illegality. 11. Both the courts below have recorded the clear findings of fact and no substantial question of law arises for determination in this appeal. 12. This second appeal fails and is accordingly dismissed under Order 41, Rule 11, C.RC.