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2021 DIGILAW 1185 (RAJ)

Sanjay Kumar Jaluka v. Jagdish Prasad Agarwal

2021-07-20

ARUN BHANSALI

body2021
JUDGMENT Arun Bhansali, J. - This appeal is directed against the judgment and decree dated 31.01.2020 passed by Additional District Judge, Churu, whereby, the appeal filed by the appellant - plaintiff against the judgment and decree dated 23.11.2016 passed by Additional Civil Judge, Churu, has been dismissed. 2. The suit was filed by the plaintiff - appellant seeking permanent injunction inter alia with the submissions that the applicant was in possession of a house situated in Ward No.43, Churu, boundries whereof, was indicated in the plaint, which was in possession of the plaintiff since 25.07.1984 from the lifetime of his father and the plaintiff was using the same without any obstruction. It was claimed that on 29.09.2012, one - Vishwanath Jaluka, Bajranglal Jaluka, Govindlal Jaluka sons of Late Babulal Jaluka & ors., transferred the property illegally to the defendants and executed a sale deed, though the same continued in possession of the plaintiff and, therefore, as since 25.07.1984 the plaintiff is in adverse possession and on account of passage of 12 years, his title has been perfected. It was indicated that the defendants on purchasing the property, called upon the plaintiff to give vacant possession of the property, which was denied by the plaintiff. Based on the above submissions, injunction was sought against the defendants. 3. Written statement was filed by the defendants denying the averments made in the plaint as well as denying the plea of adverse possession, it was claimed that the plaintiff was in permissive possession of the property and without seeking declaration the suit for injunction against true owner was not maintainable. 4. Based on the pleadings of the parties the trial court framed six issues. On behalf of the plaintiff, four witnesses were examined and three documents were exhibited, on behalf of the defendants three witnesses were examined and one document was exhibited. 5. After hearing the parties, the trial court came to the conclusion that the plaintiff failed to establish his adverse possession over the suit property. Rest of the issues were also decided by the trial court against the plaintiff and consequently, the suit was dismissed. 6. Feeling aggrieved, first appeal was filed, the first appellate court after hearing the parties and analyzing the evidence which came on record, reiterated the findings recorded by the trial court and dismissed the first appeal. 7. Rest of the issues were also decided by the trial court against the plaintiff and consequently, the suit was dismissed. 6. Feeling aggrieved, first appeal was filed, the first appellate court after hearing the parties and analyzing the evidence which came on record, reiterated the findings recorded by the trial court and dismissed the first appeal. 7. Learned counsel for the appellant made submissions that both the courts below were not justified in dismissing the suit and appeal filed by the appellant. 8. Submissions were made that it was the specific case of the plaintiff that he was in possession of the suit property since the year 1984 and as the suit was filed in the year 2012, admittedly, he was in possession for over 12 years and, therefore, had perfected his title in this regard and, therefore, the findings recorded by the two courts below cannot be sustained and give rise to a substantial question of law. 9. I have considered the submissions made by learned counsel for the appellant and have perused the judgments of the two courts below. 10. Both the courts have, extensively dealt with the evidence led by the plaintiff. The plaintiff by exhibiting three postcards / inland letters attempted to establish that as the letters were received in the name of plaintiff's father, he was in possession. 11. Both the courts noticed that the appellant though claimed that the electricity bills and water bills were in his name, however, has failed to produce the same. The courts also came to the conclusion that as they have their business premises near the suit property, the same was being used by them for storing their goods. 12. A perusal of the statements of the plaintiff, reveals that the foundational requirement for claiming adverse possession, apparently, have not even been asserted, inasmuch as, the plaintiff neither by way of documentary and / or oral evidence has even claimed that he was in possession of the property as owner and has not even disclosed the point of time from which his possession, became adverse to the true owner. The entire emphasis of the plaintiff in the plaint has been, his being in possession. The entire emphasis of the plaintiff in the plaint has been, his being in possession. Merely being in possession of a property for a long time, by itself cannot create adverse possession and title in favour of the person in possession of a property unless he claims title in himself and that also to the knowledge of the true owner. 13. In view thereof, the plea for adverse possession as raised apparently, has no substance and the findings recorded by both the courts below, cannot be faulted. Both the courts were also justified in coming to the conclusion that in absence of seeking declaration a mere suit for injunction based on adverse possession was not maintainable. 14. In view of above discussion, the appeal does not give rise to any substantial question of law. The same has no substance, the same is, therefore, dismissed.