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2018 DIGILAW 2305 (ALL)

Kaloo Singh v. Raghunath Singh

2018-11-12

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : 1. Heard Sri Manish Dev, learned counsel for the plaintiffs-appellants and Sri Surendra Prasad Mishra, learned counsel for the defendants-respondents. 2. This is plaintiff's appeal. The Original Suit No.276 of 2011(Kalu Singh and others v. Raghunath Singh and others) was filed by the plaintiffs-appellants for permanent injunction against the defendants-respondents with respect to land of Khasra Plot No.2466-M, area 0.543 hectares situate at Amroha Ander Chungi Thok Ali Mohammad Khan, Tehsil Amroha, district J.P. Nagar. The said suit was decreed by the court of First Civil Judge (Junior Division), Amroha by judgment dated 31.7.2018. 3. Aggrieved with this judgment, the defendants-respondents filed first appeal being Civil Appeal No.94 of 2017 (Raghunath Singh and others v. Kalu Singh and others), which has been allowed by the impugned judgment dated 31.7.2018 passed by the District Judge, Amroha, whereby the judgment and decree passed by the trial court, has been set aside and the suit has been dismissed. 4. Aggrieved with the judgment of the First Appellate Court, the plaintiffs-appellants have filed the present appeal. SUBMISSIONS: 5. Learned counsel for the plaintiffs-appellants submits that the first appellate court has misconstrued the suit for permanent injunction filed by the appellants as a suit for declaration of rights on the basis of adverse possession. The appellants had proved their adverse possession hostile to the oral owner. The real owner Ganeshi Lal died in the year 1958. The name of his sons were not mutated in the revenue record, although, they filed application and it is only on 15.4.2010, that the name of the defendants-respondents (grand sons of Ganeshi Lal) was mutated. The first appellate court has allowed the appeal of the defendants-respondents without setting aside the findings of the trial court. The suit for adjudication of adverse possession under Section 229-B of the U.P. Z.A. & L.R. Act, is pending before the revenue court. The plaintiffs-appellants have perfected their rights over the suit property by adverse possession hostile to the real owner. 6. Learned counsel for the defendants-respondents submits that the ancestor of the defendants-respondents, namely, Sri Ganeshi Lal had purchased the said property by a registered sale deed dated 13.1.1943 and they are continuing in possession. Their names were also mutated in revenue records. Neither necessary pleadings were made nor the evidences could be led by the plaintiffs-appellants on settled principles of adverse possession. 7. Their names were also mutated in revenue records. Neither necessary pleadings were made nor the evidences could be led by the plaintiffs-appellants on settled principles of adverse possession. 7. Learned counsel for the defendants-respondents supports the impugned judgment of the first appellate court and submits that the matter is concluded by findings of fact and no substantial question of law is involved in the present second appeal. FACTS OF THE CASE: 8. Briefly stated facts of the present case are that admittedly, the suit property was purchased by Sri Ganeshi Lal son of Sri Kalyan Das (Grand father of the defendants-respondents) by a registered sale-deed dated 31.10.1943, which was filed in evidence by the defendants before the trial court. It is also the admitted fact that in the revenue records, namely in Khasras and Khataunis, the name of the aforesaid Sri Ganeshi Lal, (Grand-father of the defendants) is recorded since the year 1943. The suit property was grove. Sri Ganeshi Lal died in the year 1958. However, his name continued in the revenue records till the order of the competent authority dated 15.4.2010 mutating the names of the defendants. The plaintiffs-appellants could not lead any documentary evidence in support of their allegation of possession over the disputed plot. However, they separately filed Case No.73 of 2010 before the revenue court for declaration, which is stated to be pending. 9. In paragraph-19 of the impugned judgment, the first appellate court recorded a finding of fact that the plaintiffs-appellants have not filed copies of any Khasra/other documents to show that they had ever been in possession of the suit property. In paragraph-20 of the judgment, the first appellate court noticed the cross examination of P.W.1, dated 12.3.2014 in which P.W.1 has admitted that the mango grove adjoining the disputed land has been mutated in his name. He has also shown ignorance as to who is the owner of the suit property (disputed grove). P.W. 3 has stated in his cross examination that he was born in the year 1950 and thus, he was about two years old in the year 1952 and, therefore the evidence of this witness was disbelieved with respect to possession of the plaintiffs since the year 1952. 10. In paragraph Nos. 3, 4 and 5 of the affidavit accompanying the stay application, the plaintiffs-appellants have stated as under : "3. 10. In paragraph Nos. 3, 4 and 5 of the affidavit accompanying the stay application, the plaintiffs-appellants have stated as under : "3. That the suit was filed inter-alia mainly on the ground that that the suit property is part of Ali Mohammad Khan Mahal Zamindar whereof was Sri Ganga Prasad son of Sri Gopal Singh. The plaintiffs father had caused adverse possession over the suit property since enforcement of U.P.Z.A. & L.R. Act, he had planted many trees over the suit property and after his death appellants' are in possession. 4. That it was further pleaded that on 24-04-10 appellants came to know that in revenue record name of one Ganeshi Lal S/o Kalyan Das is recorded while there has never been any possession of aforesaid persons over the suit land. The appellants had filed suit no.76 of 2010 for declaration of their rights and for expunging the entries of name of Sri Ganeshi Lal in revenue record. The defendants on 15-07-11 alongwith some unsocial elements made and effort to forcibly dispossess the appellants from suit property. It was also pleaded that the appellants had perfected their rights over suit property U/s 210 of U.P. Z.A. & L.R. Act. 5. That the defendants on 05-09-12 had filed written statements denying plaint allegation and had pleaded that under registered sale deed dated 31-10-1943, the defendants' grand father late Sri Ganeshi Lal had purchased the suit property from Sri Ganga Prasad and his name was also mutated in revenue record. The defendants had admitted that though their father had filed application but his name was not mutated in revenue record however on 15-04-10 defendants name have been mutated". 11. The questions arise for consideration in the present set of facts are: "(i) Whether the plaintiffs-appellants are entitled for permanent injunction against the defendants-respondents on the facts of the present case? (ii) Whether the findings recorded by the First Appellate Court are the findings of fact? (iii) Whether any substantial question of law is involved in the present second appeal?" DISCUSSION AND FINDINGS: 12. (ii) Whether the findings recorded by the First Appellate Court are the findings of fact? (iii) Whether any substantial question of law is involved in the present second appeal?" DISCUSSION AND FINDINGS: 12. Before I proceed to examine the rival contentions of the parties on the questions framed above, it would be appropriate to make it clear that the question regarding the title and ownership of the suit property by adverse possession is a blended question of fact and law, which cannot be directly or substantially put in issue in a suit for permanent injunction which was filed by the plaintiffs-appellants, which gave rise to the present second appeal. Therefore, the issue of title and ownership of the suit property by adverse possession is kept open with liberty to the parties to agitate the same in appropriate proceeding. 13. Similar view has also been taken by Hon'ble Supreme Court in the case of Union of India v. Vijay Krishna Uniyal (dead) through legal representatives, (2018) 11 SCC 382 (Paragraph Nos.24 and 28). LAW OF ADVERSE POSSESSION : 14. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, 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. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 15. The plea of adverse possession is not a pure question of law but a blended one of fact and law. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. 15. The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should 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 has continued, and (e) his possession was open and undisturbed. 16. The law of adverse possession has been well discussed by Hon'ble Supreme Court in series of judgments including in Karnataka Board of wakf v. Government of India, (2004) 10 SCC 779 (Paragraph 11), Swaroop Singh v. Banto (2005) 8 SCC 330 (Paragraph Nos. 29 and 30), T. Anjanappa & Others v. Somalingappa & Another (2006) 7 SCC 570 (Paragraph No.20), P.T. Munichikkanna Reddy & Others v. Revamma & Others (2007) 6 SCC 59 (Paragraph Nos. 5 and 6), Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, (2009) 16 SCC 517 , D. N. Venkatarayappa and Another v. State of Karnataka and Others (1997) 7 SCC 567 (Paragraph No.3), Ram Daan (Dead), through L.R.S. v. Urban Improvement Trust (2014)8 SC 902 (Paragraph No.11), Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165 , M. Venkatesh and others v. Commissioner, Bangalore Development Authority, 2015(17) SCC (Paragraph Nos. 18 to 21), Dharmarajan and others v. Valliammal & Others, 2008(2) SCC 741 (Paragraph No.11), B. Leelavathi v. Honnamma and another, 2005 (11) SCC 115 , A.S. Vidyasagar v. Karnataka Karunadham, 1995 (Supp.) (4) SCC 570 (Paragraph No.5- Permissive possession - Not adverse possession), State of Haryana v. Mukesh Kumar and others, (2011)10 SCC 404 ( Paragraph Nos. 32 and 39) and the judgments of this Court in Prabhu Narain Sharma v. State of U.P., AIR 1983 Alld. 223 (Paragraph No.6) and in U.P. Gandhi Smarak Nidhi v. Aziz Mian and others, 2013(3) ADJ 321 (Paragraph Nos. 20-28 and 228-238), which supports the view taken by me in paras 14 and 15 above. 17. 32 and 39) and the judgments of this Court in Prabhu Narain Sharma v. State of U.P., AIR 1983 Alld. 223 (Paragraph No.6) and in U.P. Gandhi Smarak Nidhi v. Aziz Mian and others, 2013(3) ADJ 321 (Paragraph Nos. 20-28 and 228-238), which supports the view taken by me in paras 14 and 15 above. 17. In the present set of facts it is admitted to the parties that Sri Ganeshi Lal (father of the defendants-respondents) purchased the suit property from one Sri Ganga Prasad by a registered sale-deed dated 31.10.1943, which was a grove and his name was mutated in the revenue records over the said grove. 18. The plaintiffs filed Original Suit No.276 of 2011 for permanent injunction against the defendants setting up a case that their father Lal Singh was in possession of the land of Khasra Plot No.2466-M area 0.543 hectares and continued to remain in possession after abolition of Zamindari and after his death the plaintiffs are in possession. On 24.4.2010, when the plaintiffs obtained copy of Khatauni, then they came to know that due to some mistake the name of Ganeshi Lal, son of Kalyan Das, resident of Mohalla Ahmad Nagar has been recorded in the Khatauni, whereas no such person resides in mohalla Ahmad Nagar nor has ever been seen nor any such Ganeshi Lal has been in possession of the disputed property whose name has been recorded in the Khatauni fraudulently and without authority. They also set up a case that for expunging the aforesaid entry in the name of Sri Ganeshi Lal in the khatauni and for declaration of title they have filed Case No.73 of 2010 (Kalu v. State of U.P. ), under section 229-B of U.P. Z.A. and L.R. Act, in the court of Sub Divisional Magistrate, Amroha. In the plaint it was alleged that on 15.7.2011, the defendants forcibly tried to dispossess the plaintiffs. This gave cause of action to file the suit. The plaintiffs filed in evidence, copy of khatauni of Khasra No.593 (Paper No.10Ga), certified copy of plaint of Case No.72 of 2010 along with list 64-Ga and copy of the order dated 3.5.2010 passed by the Sub Divisional Magistrate, Amroha (Paper no.65-Ga and 66-Ga). In oral evidence they produced P.W. 1 Chhotey Singh, P.W. 2 Murari Lal, P.W. 3 Swaroop Saini and P.W. 4 Hari Om. 19. In oral evidence they produced P.W. 1 Chhotey Singh, P.W. 2 Murari Lal, P.W. 3 Swaroop Saini and P.W. 4 Hari Om. 19. The defendants denied the plaint version in their written statement. They stated that by a registered sale deed dated 31.10.1943, their Grand-father Ganeshi Lal son of Kalyan Das had purchased the disputed property, which was a grove from the original owner Sri Ganga Prasad, son of Sri Gopal Singh. Thereafter, the name of Sri Ganeshi Lal was mutated in the revenue records in the year 1943. He died in the year 1958. Thereafter, the father of the defendants namely, Sri Pooran Singh, son of Ganeshi Lal filed an application for mutation on 23.5.1958 before the Tehsildar, which was followed by reminder dated 14.10.1958, but inadvertently, the name of Sri Ganeshi Lal continued in the revenue records with respect to the disputed property. It was further stated that subsequently, after the death of their father, the defendants filed an application for mutation and by an order of the competent authority dated 15.4.2010, their name was recorded in the revenue records. They also stated that the plaintiffs have never been in possession of the disputed property. The original sale-deed dated 31.10.1943, copy of Amaldaramad, copy of Khasra and Khatauni etc. was filed by them as documentary evidences. In oral evidence they led the evidence of D.W.1 Kartar Singh. 20. The trial court framed ten issues. It decreed the suit by judgment dated 26.8.2017 without properly examining the evidences before it. The plaintiffs have completely failed to lead any documentary evidence with respect to the ownership of the disputed property, as against the registered sale-deed dated 31.10.1943, whereby, the Grand-father of the defendants had purchased the disputed property from the original owner Sri Ganga Prasad, son of Gopal Singh, who was admittedly Zamindar. The disputed property was a grove, as is mentioned in the sale-deed. The plaintiffs have completely failed to lead any documentary evidence, which may indicate their possession over the disputed property. The plaintiff no.2 gave his evidence as P.W. 1 on 12.3.2014, stating his age to be 45-46 years. He admitted the mango trees standing over the disputed property (grove) to be very old. He stated that he was not aware that who owns the disputed grove. The plaintiff no.2 gave his evidence as P.W. 1 on 12.3.2014, stating his age to be 45-46 years. He admitted the mango trees standing over the disputed property (grove) to be very old. He stated that he was not aware that who owns the disputed grove. He failed to explain that for what reasons his brother Shiv Lal used to write letters to the defendant no.2, Kartar Singh. He admitted in his cross-examination that in respect of the house of Ganeshi Lal in which they reside, they have filed a case in the court of Civil Judge (Senior Division), Amroha. He also stated in his cross-examination that - "Mai aur Mera Bhai Mazdoor Prakar ke vyakti hai. Mere Pitaji aur hum Aam ke Bag-bahar ko kharidne ka kam bhi karte the". P.W. 2 in his cross-examination has stated that he is not aware that what has been mentioned in his affidavit filed in evidence, which was not read over and he he came to give evidence, as was told by plaintiff no.1. P.W. 3 as on the date in his cross-examination the P.W. 3 stated his birth year to be 1950. Thus, at the time of zamindari ablution in the year 1952, he would have been about 2 years old. Therefore, his evidence was found to be untrustworthy by the first appellate court with regard to the possession of the plaintiffs' father over the disputed property at the time of zamindari abolition. 21. The facts as briefly noted above and the detail findings of fact recorded in the impugned judgment of the First Appellate Court show that there was no dispute that the disputed grove i.e. Khasra Plot No.2644-M area 0.543 hectares, was purchased by one Sri Ganeshi Lal (Grand-father of the defendants) from the original owner Ganga Prasad son of Gopal Singh and since then the name of the Grand-father of the defendants stands recorded in the revenue records. After the death of the aforesaid Ganeshi Lal, the name of the defendants was mutated in the revenue records. The record of possession i.e. Khasra also reflects either the name of the Grand-father of the defendants or the name of the defendants. They filed original sale-deed and copies of Khasras and Khataunis of different years to establish their rights and possession. The record of possession i.e. Khasra also reflects either the name of the Grand-father of the defendants or the name of the defendants. They filed original sale-deed and copies of Khasras and Khataunis of different years to establish their rights and possession. The evidence of P.W.1 and P.W.2 as briefly discussed in para (20) above shows that the plaintiffs could not prove their adverse possession. The oral evidence of P.W. 3 was found to be untrustworthy. A finding of fact has also been recorded by the first appellate court that the plaintiffs have completely failed to establish their possession over the disputed property so as to obtain a decree of injunction. 22. The scope of interference in second appeal with the findings of fact is very narrow. In Veerayee Ammal v. Seeni Ammal, (2002) (1) SCC 134, Hon'ble Supreme Court considered the scope of Section 100 C.P.C and held as under: "7. .....We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur Vs. Mohani Dasi held: (AIR p.1205 para 3). "It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact." 23. Similar view has been taken by Hon'ble Supreme Court in Thiagarajan and others Vs. Sri Venugopalaswamay B. Koil and others, JT 2004 (5) SC, 54, Rajeshwari Vs. Puran Indoria (2005) 7 Supreme Court Cases, 60, Gurdev Kaur and others Vs. Kaki and others 2006 All.C.J. (Supreme Court) 1481 and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, (1999) 3 Supreme Court Cases 722. 24. Sri Venugopalaswamay B. Koil and others, JT 2004 (5) SC, 54, Rajeshwari Vs. Puran Indoria (2005) 7 Supreme Court Cases, 60, Gurdev Kaur and others Vs. Kaki and others 2006 All.C.J. (Supreme Court) 1481 and Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others, (1999) 3 Supreme Court Cases 722. 24. For all the facts and reasons aforestated, I find that the findings recorded by the First Appellate Court, are findings of fact, based on consideration of relevant evidences on record. There is no error of law in the impugned judgment. No substantial question of law is involved. Consequently, the appeal fails and is hereby dismissed.