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2019 DIGILAW 1902 (ALL)

Mohd Islam v. Shamshul Ansari

2019-08-06

SUDHIR AGARWAL

body2019
JUDGMENT : SUDHIR AGARWAL, J. 1. Heard Sri S.K.Verma, Senior Advocate, assisted by Sri Bipin Lal Srivastava, learned counsel for appellant, Sri M.K.Nigam, learned counsel for respondent. 2. This is plaintiff's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") arising from judgment dated 23.10.1986 and decree dated 10.11.1986 passed by Sri R.M.Chauhan, IVth Additional District and Sessions Judge, Ghazipur in Civil Appeal No.172 of 1982 whereby appeal has been allowed and judgment of Trial Court dated 25.02.1982 and decree dated 05.03.1982 passed by Sri Prakash Chandra Mishra, IInd Additional Munsif, Mohamdabad, Ghazipur, in Original Suit No.130 of 1979 has been set aside. 3. Trial Court had decreed plaintiff's suit granting permanent injunction restraining defendants-respondents from interfering in possession of plaintiff in respect of house, A, B, C, D, E, F, G, H, as shown in map appended to the plaint and also hand over possession of disputed property to plaintiff. It is this judgment, which has been reversed by Lower Appellate Court (hereinafter referred to as "LAC"), as a result whereof plaintiff's suit stands dismissed. 4. The facts giving rise to this appeal in brief are that sole plaintiff Mohd. Islam son of Tulai, resident of Bahadurganj, Pargana Jahoorabad, District Ghazipur, instituted Original Suit No.130 of 1979 vide plaint dated 03.05.1979 impleading two defendants Shamshul Ansari son of Khalil and Shamshul Haq Kunjada son of Chetan in the Court of Munsif Muhammdabad, District Ghazipur seeking permanent injunction restraining defendant-1 from interfering in possession and other rights of plaintiff in respect of disputed house shown by letters A, B, C, D, E, F, G, H in the map given at the bottom of plaint. He further sought eviction of defendant-1 from disputed property shown as F, F, G, G, in the map at the bottom of plaint and to hand over possession thereof to plaintiff. 5. The plaint case set up is that disputed house is situated in Kasba Bahadurganj. Part of house shown as A, B, C, D, F, G, H, was owned by Shamshul Haq son of Chetan, defendant-2 and plaintiff was a tenant therein for last 7-8 years. 5. The plaint case set up is that disputed house is situated in Kasba Bahadurganj. Part of house shown as A, B, C, D, F, G, H, was owned by Shamshul Haq son of Chetan, defendant-2 and plaintiff was a tenant therein for last 7-8 years. Defendant-2 vide sale deed dated 03.01.1978, for consideration of Rs.2,000/-, sold the aforesaid house, part whereof has been shown by letters A, B, C, D, E, F. to the plaintiff, who was already in possession of said property as tenant, and became owner after sale deed dated 03.01.1978 was executed by defendant-2. In Municipal record, earlier name of Sattar was shown in respect of house in dispute, who died long back and his legal heir defendant-2, after his death, became his successor in respect of disputed property. Sattar had no issue but his father Sallar were four brothers namely Sallar, Somaroo, Dukhi and Kadir. Dukhi and Kadir died long back without any issue and Somaroo's son Chetan became successor and Shamshul Haq and Anul Haq are sons of Chetan. After death of Sattar, therefore his entire property was succeeded by defendant-2 and his brother Anul Haq and their names were entered in Municipal record. 6. Defendant-1 got a document forged on 03.4.1978 and on the basis thereof claimed his right over property in dispute and sought to get his name entered in Municipal record illegally hence the suit. 7. Defendant-1, Shamshul Ansari, contested the suit, filing written statement dated 09.5.1979 in which he admitted that property in dispute was initially recorded in the name of Sattar. Rest averments of plaint were denied. In additional pleas, he said that Sattar had no brother and Samaroo, Dukhi and Kadir had no relation with him. Defendant-2 was neither legal representative or heir of Sattar nor has any right over property in dispute. Sattar had two daughters namely Nisar Begum and Haliya alias Hallam Bibi, who succeeded Sattar's property after his death. Defendant-1 got a deed executed by aforesaid daughters of Sattar on 03.04.1978 and therefore, has a right over property in dispute. Defendant-1 moved an application for mutation, on which Administrator, Town Area passed order on 06.05.1978 to mutate his name where against plaintiff filed appeal, which was rejected vide order dated 26.9.1978. Defendant-1 got a deed executed by aforesaid daughters of Sattar on 03.04.1978 and therefore, has a right over property in dispute. Defendant-1 moved an application for mutation, on which Administrator, Town Area passed order on 06.05.1978 to mutate his name where against plaintiff filed appeal, which was rejected vide order dated 26.9.1978. There against, a writ petition has been filed by plaintiff in High Court i.e. Writ Petition No.1609 of 1979 but the same was also dismissed. The suit has been filed on false premise and plaintiff had no right over property in dispute. 8. Trial Court formulated following eight issues : ^^1- D;k oknh fookfnr edku o cg:Q ABCDEFGH uD'kk okni= dk Lokeh ,oa vf/kiR;Hkksxh gS\ 2- D;k oknh cg:Q FF'GG' uD'kk okni= ij n[ky ikus dk vf/kdkjh gS\ 3- D;k okn la/kkj.k ;ksX; ugha gS\ 4- D;k okn dk ewY;kadu nks"iw.kZ gS rFkk iznRr U;k; 'kqYd vi;kZIr gS\ 5- D;k okn esa ekSu lEefr ,oa foo.ku dk nks"k ckf/kr gS\ 6- D;k okn esa rkeknh dk nks"k ckf/kr gS\ 7- D;k okn esa /kkjk 34 fo0 vuqrks"k vf/kfu;e ck/kd gS\ 8- vuqrks"k\^^ 1. Whether the plaintiff is the owner having occupation over the disputed house shown by letters ABCDEFGH in the site map appended to the plaint? 2. Whether the plaintiff is entitled to secure occupation over the property shown by letters FF'GG' in the site map appended to the plaint? 3. Whether the suit is not maintainable? 4. Whether the suit is wrongly valued and the court fee paid is insufficient? 5. Whether the suit suffers from the Principles of Acquiescence and Estoppel? 6. Whether the suit is barred by limitation? 7. Whether the suit is barred by Section 34 of the Specific Relief Act? 8. Relief?" (English Translation by Court) 9. Besides documentary evidence, oral evidence placed before Trial Court comprised of deposition of Islam PW-1 and Mukhtaar Ahmad as PW-2 while Shamshul Haq defendant-2 himself examined as DW-1 and Alimuddin as DW-2. 10. Considering Issue 1, Trial Court held that plaintiff is owner of disputed property and answered issue in affirmative. Issues 3, 5, 6 and 7 were not pressed by defendants hence answered in negative. Issue 4 was considered as preliminary issue and already answered in negative vide order dated 20.01.1982, which was made part of judgment. Issue 2 thereafter was answered in affirmative holding defendants' possession over disputed property unauthorized and illegal. Issues 3, 5, 6 and 7 were not pressed by defendants hence answered in negative. Issue 4 was considered as preliminary issue and already answered in negative vide order dated 20.01.1982, which was made part of judgment. Issue 2 thereafter was answered in affirmative holding defendants' possession over disputed property unauthorized and illegal. Consequently suit was decreed vide judgment dated 25.02.1982 and decree dated 05.03.1982 passed by Sri Prakash Chandra Mishra. 11. Defendant-1 preferred Civil Appeal No.172 of 1982. LAC formulated two points for consideration as under : ^^1- D;k 'kelqygd LoxhZ; lRrkj dk cSf/kd mRrjkf/kdkjh Fks\ 2- D;k lRrkj dh yM+fd;kWa fulk csxe o gyhQ mQZ gYyu chch gS\** 1. Whether Shamsul Haq was legal successor of Late Sattar? 2. Whether Nisa Begum and Haleef @ Hallan Bibi are daughters of Sattar?" (English Translation by Court) 12. Answering first point for determination, LAC held that Sattar was the only son and had no brother, therefore Shamshul Haq and Ainul Haq did not belong to family of Sattar. Hence plaintiff cannot derive any valid right or title from them. It, therefore, held that Shamshul Haq and Ainul Haq had no right to transfer the property and plaintiff did not gain any valid ownership right over disputed property. Second point for determination was also answered in favour of defendant-1 holding that Nisar Begm and Haleem alias Hallan Bibi were daughters of Sattar and after death of Sattar, became co-owners of property in dispute hence could have validly transferred their ownership over property in dispute vide sale deed dated 03.4.1978. Consequently, appeal was allowed and judgment and decree of Trial Court was set aside by LAC vide judgment dated 23.10.1986. 13. This appeal was admitted on following two substantial questions of law: (I) Whether Smt. Nesar and Smt. Haleem Bibi, who were born in 1949 and 1951, be the daughters of Sattar who died in 1947? (II) Whether LAC reversed findings of Trial Court without meeting reasoning adopted by Trial Court and also the evidence relied by it? 14. So far as question (I) is concerned, it is said that one daughter was born to Sattar who died within one month. Another daughter was born on 02.7.1932, as per birth register of Town Area, Bahadurgan, Paper No.38C, but there is nothing on record to show that she also died. LAC has drawn inference that daughter born to Sattar on 02.07.1932 remained alive. Another daughter was born on 02.7.1932, as per birth register of Town Area, Bahadurgan, Paper No.38C, but there is nothing on record to show that she also died. LAC has drawn inference that daughter born to Sattar on 02.07.1932 remained alive. Another daughter was born in 1934, who died. 15. On the basis of Family Register, wherein date of birth of two daughters were shown as 01.01.1949 and 31.01.1951, it was argued that these are Nisar Begum and Haleema Begum and not those daughters who were born to Sattar. However, I find that two daughters were born to Sattar and in absence of any evidence that both died, it cannot be said that Nisar and Haleema Begum are not his daughters. LAC, in my view, has not erred by simply negativing the date of birth shown in Family Register, in the light of above evidence. 16. Moreover, plaintiff's basic contention that Sattar died issueless stood proved false. In order to be successful in a suit, plaintiff has to stand on his own and if his basic claim falls, suit has to be dismissed. Question (I) is thus answered against appellant. 17. Sri S.K.Verma, Senior Advocate, then contended that plaintiff was in possession of disputed property for last more than twenty years and therefore, matured his right by way of 'adverse possession'. He also urged that though this issue has not been considered by Courts below and also not framed as a substantial question of law by this Court but still since it is evident from pleadings, it can be considered by this Court at this stage also. In support of above submission, he placed reliance on Supreme Court judgment in Panchugopal Barua and others vs. Umesh Chandra Goswami and others, 1997 4 SCC 713 and Nangali Amma Bhavani Amma vs. Gopalkrishnan Nair and others, 2004 8 SCC 785 . 18. In Panchugopal Barua and others (supra) Court has held that appellant cannot be allowed to set up a new case in second appeal or raise a new issue, not supported by any pleadings or material on record. Further, unless the appeal involves a substantial question of law, a second appeal cannot lie. 18. In Panchugopal Barua and others (supra) Court has held that appellant cannot be allowed to set up a new case in second appeal or raise a new issue, not supported by any pleadings or material on record. Further, unless the appeal involves a substantial question of law, a second appeal cannot lie. It clearly said as under : "The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor canvassed in the subordinate courts and that too by overlooking the changes brought about in Section 100 C.P.C. by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal." 19. In Nangali Amma Bhavani Amma (supra) I find nothing to help the appellant, inasmuch as, there, an issue was raised that second appeal was decided by High Court without framing any substantial question of law but in para 6 of judgment, Court negatived it by observing that High Court had indicated the question of law which arise out of the decision of the first appellate court and which required determination under Section 100 of C.P.C. Court also held that this is in substantial compliance with the requirement of Section 100 C.P.C., and therefore, it find no reason to set aside judgment of High Court. 20. It has been repeatedly held that at the time of hearing, Court will not frame a question, which has not arisen from pleadings before Court below and has not been raised before Court below. 21. Further, even on merits, I find that plaintiff has no case on the issue of "adverse possession" and reliance placed by plaintiff-appellant on Division Bench judgment of this Court in Municipal Board, Etawah vs. Mt. Ram Sri and another, 1931 AIR(All) 670 and Vasudeva Padhi Khadanga Garu vs. Maguni Devan Bakshi Mahapatrulu Garu, 28 Indian Appeals 81 is clearly misconceived. Above decision infact have no application to the facts of this case. 22. Here suit instituted by plaintiff-appellant is founded on his plea of 'ownership' in pursuance of sale deed dated 03.01.1978 executed by defendant-2. At no point of time there is any pleading that plaintiff had 'adverse possession' over property in dispute, openly against its owner and has matured its right by adverse possession. 22. Here suit instituted by plaintiff-appellant is founded on his plea of 'ownership' in pursuance of sale deed dated 03.01.1978 executed by defendant-2. At no point of time there is any pleading that plaintiff had 'adverse possession' over property in dispute, openly against its owner and has matured its right by adverse possession. The requirement of law in order to attract doctrine of adverse possession are very clear. In the matter of plea of adverse possession, mutually inconsistent or mutually destructive pleas cannot be taken in the plaint. Whenever plea of adverse possession is raised, it pre supposes that onwer is someone else and the person taking the plea of adverse possession is not the actual owner but has perfected his title by prescription since real owner failed to initiate any proceeding for restoring the possession within the prescribed period under the statute. 23. In P. Periasami Vs. P.Periathambi & Ors., 1995 6 SCC 523 it was said: "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." 24. In Mohan Lal v. Mirza Abdul Gaffar, 1996 1 SCC 639 , the Court said" "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario." 25. In Karnataka Board of Wakf Vs. Government of India & others, 2004 10 SCC 779 , Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. In para 12 it said: "The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced." 26. The decision in Mohan Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, the Court said: "As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The decision in Mohan Lal (supra) has also been followed in Karnataka Board of Wakf (supra) and in para 13, the Court said: "As we have already found, the respondent obtained title under the provisions of the Ancient Monuments Act. The element of the respondent's possession of the suit property to the exclusion of the appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of the appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by the respondent is unsustainable." (emphasis added) 27. In M. Venkatesh and others vs. Commissioner, Bangalore Development Authority and others, 2015 17 SCC 1, Court has referred to various earlier decisions including Mohan Lal (supra) and Karnataka Board of Wakf (supra) and observed that a person having come into possession having some title or agreement cannot claim hostile or adverse possession. Referring to Annasaheb Bapusaheb Patil vs. Balwant, 1995 2 SCC 543 Court has said that where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. The same has been followed in Bangalore Development Authority vs. N.Jayamma, 2017 13 SCC 159 . 28. In Chatti Konati Rao and Ors. vs. Palle Venkata Subba Rao, 2010 14 SCC 316 , Court said that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. 29. The above authorities have been followed recently in Mallikarjunaiah vs. Nanjaiah and others, 2019 7 Scale 1. 30. In view of above discussion of law and case set up by plaintiff, I have no manner of hesitation that plaintiff has no claim over property in dispute on the basis of alleged "adverse possession" and this plea has no substance. 31. The above authorities have been followed recently in Mallikarjunaiah vs. Nanjaiah and others, 2019 7 Scale 1. 30. In view of above discussion of law and case set up by plaintiff, I have no manner of hesitation that plaintiff has no claim over property in dispute on the basis of alleged "adverse possession" and this plea has no substance. 31. Counsel for appellant in respect of question (II) contended that findings of Trial Court have not been reversed and still LAC has passed judgment in appeal reversing judgment of Trial Court. This argument has no substance for the reason that basic findings of Trial Court that Sattar was issueless and his property was succeeded by his brothers has been reversed by LAC observing that Sattar had no brother but had two daughters and his property was succeeded by two daughters hence evidently findings of Trial Court have been reversed. Thus LAC was justified in passing a judgment of reversal. 32. Substantial question (II) therefore, is answered against appellant. 33. Appeal lacks merit. Dismissed.