Gurjit Kaur, W/O Late Harminder Singh v. Jatinder Singh, S/O Sarwan Singh Matharu
2025-06-12
SACHIN SHANKAR MAGADUM
body2025
DigiLaw.ai
JUDGMENT : Sachin Shankar Magadum, J. The captioned appeal is by the defendant challenging the eviction decree wherein the defendant is directed to vacate and handover vacant possession of the suit schedule property within three months from the date of the order. 2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3. The facts leading to the case are as under: The plaintiff has instituted the present suit for ejectment and recovery of possession in respect of a residential property constructed on Site No.12, situated in Survey No.96 of Amruthahalli Village, Yelahanka Hobli. The plaintiff, who is presently residing in the United States of America, purchased the suit schedule property under a registered sale deed dated 03.02.1994 executed by one Narasima Raju and M. Sreeramulu. The plaintiff contends that with the intention of constructing a residential house on the said property, he executed a registered Power of Attorney dated 23.05.2007 in favour of the defendant, who is his sister-in-law. Upon completion of the construction, the plaintiff, out of goodwill and family ties, permitted the defendant to reside in the house, thereby placing her in permissive possession of the suit schedule property. 4. The plaintiff further contends that as he intended to return to India and occupy the residential premises, he requested the defendant to vacate and hand over possession of the suit schedule property. However, the defendant refused to comply with the request. Consequently, the plaintiff initiated eviction proceedings by filing HRC No.133/2012. Upon legal advice, it was realised that the defendant had not been inducted under a lease agreement, and as such, the eviction petition was withdrawn. The plaintiff has now filed the present suit seeking recovery of possession based on the defendant’s permissive occupation. 5. Pursuant to service of summons, the defendant entered appearance and filed her written statement, wherein she denied all material averments made in the plaint. The defendant specifically denied the plaintiff's claim of ownership and permissive possession. On the contrary, the defendant has asserted that she is in occupation of the suit schedule property in her own right as the absolute owner and has further set up a plea of title by way of adverse possession. 6. Based on rival pleadings, trial Court framed the following issues: " 1.
On the contrary, the defendant has asserted that she is in occupation of the suit schedule property in her own right as the absolute owner and has further set up a plea of title by way of adverse possession. 6. Based on rival pleadings, trial Court framed the following issues: " 1. Whether the plaintiff proves that he is the owner of the suit schedule property and the defendant is residing in permissive possessing over the Suit Property? 2. Whether the plaintiff proves that he has terminated permissive possession of the defendant by issuing notice to the defendant and also terminated the power of attorney given to the defendant? 3. Whether the defendant proves that suit is not properly valued and the court fee paid insufficient? 4. Whether the defendant proves that she is the absolute owner and in possession over the suit schedule property? 5. Whether the plaintiff proves that he is entitled for the relief claimed in the suit? 6. What order or decree?" 7. Plaintiff and defendant were permitted to lead oral and documentary evidence in support of their respective claims. Plaintiff adduced oral evidence through his brother, who is examined as P.W.1 and produced in all 14 documents which are marked as Exs.P1 to 14. Defendant examined herself as D.W.1 and her son was examined as D.W.2 and they produced in all 22 documents which are marked as Exs.D1 to 22. 8. The trial Court on appraisal of the oral and documentary evidence answered issue Nos.1 and 2 in affirmative and issue No.4 in the negative. While answering issue No.1 in the affirmative, trial Court held that plaintiff is the absolute owner and that he has rightly terminated the permissive possession of the defendant by issuing a notice. While answering issue No.4 in the negative, trial Court held that defendant has failed to prove that she has perfected her title by way of adverse possession. The judgment and decree rendered by the trial Court is challenged by the defendant. 9. Learned counsel appearing for the defendant reiterating the grounds urged in the appeal memo has tried to place reliance on the additional evidence produced along with I.A.No.1/2025.
The judgment and decree rendered by the trial Court is challenged by the defendant. 9. Learned counsel appearing for the defendant reiterating the grounds urged in the appeal memo has tried to place reliance on the additional evidence produced along with I.A.No.1/2025. Referring to the additional evidence, he has vehemently submitted that the additional evidence, which is now sought to be produced clearly clinches the claim of defendant that she is the rightful owner and she has constructed the residential house by investing the terminal benefits of her deceased husband and also by raising hand loans from her relatives. 10. Per contra, learned counsel appearing for plaintiff supporting the findings recorded by the trial Court on Issue Nos.1, 2 and 4 has persuaded this Court to examine the written statement filed by defendant. Referring to para 25 of the written statement he would point out that defendant having set up a plea of adverse possession cannot be now permitted to retract from her stand. The additional documents contradict her earlier stand taken in the written statement at the earliest point of time. He would read the admissions elicited in the cross-examination of D.W.1 as well as D.W.2. Referring to the defendant's ignorance regarding her earning capacity as on 2006 and other admissions, he would point out that the trial Court has rightly decreed the suit and therefore, no indulgence is warranted at the hands of this Court. 11. Heard the learned counsel for the defendant and learned counsel appearing for plaintiff. This Court has meticulously examined the pleadings of plaintiff and defendant This Court has also examined the oral and documentary evidence let in by plaintiff and defendant and the admissions elicited in the cross-examination of D.Ws.1 and 2. 12. The following points would arise for consideration: "(1) Whether the finding of the trial Court recorded on Issue Nos.1 and 2 declaring plaintiff as absolute owner suffers from perversity? (2) Whether defendant having set up plea of adverse possession can now be permitted to rely on additional documentary evidence to demonstrate that she has invested money and the entire building is constructed at her cost which is in absence of pleadings in the written statement?" FINDING ON POINT No.(1) 13. The plaintiff, a Non-Resident Indian, has instituted the present suit seeking possession of the suit schedule property based on his lawful title.
The plaintiff, a Non-Resident Indian, has instituted the present suit seeking possession of the suit schedule property based on his lawful title. In order to establish and substantiate his ownership, the plaintiff has relied upon and produced the following documentary evidence: (a) Firstly, the plaintiff has placed on record the Agreement of Sale executed in his favour, which is marked as Exhibit P2. This agreement culminated in the execution and registration of a Sale Deed dated 03.02.1994, executed by one Narasima Raju and M. Sreeramulu in favour of the plaintiff, which is marked as Exhibit P3. (b) In further support of his claim of title and continuous possession, the plaintiff has produced the extracts from the revenue records for the year 1998–99, which are marked as Exhibit P4. (c) Additionally, the extracts from the tax demand register for the year 2011–12, which reflect the demand and payment of property taxes in the name of the plaintiff, have been placed on record and are marked as Exhibit P6. These documents, when read conjointly, prima facie establish the plaintiff's lawful title and his continuous interest in the suit schedule property. 14. In response to the plaintiff’s claim, the defendant has filed a written statement denying the plaintiff's ownership and asserting an independent claim over the suit schedule property. Of particular significance is paragraph 25 of the written statement, wherein the defendant has set up a plea of adverse possession. This paragraph is crucial as it forms the fulcrum of the defence raised by the defendant and directly challenges the plaintiff's right to seek possession. The plea of adverse possession, being a mixed question of law and fact, requires the defendant to plead and prove continuous, hostile, open, and uninterrupted possession to the exclusion of the true owner for the prescribed statutory period. 15. In order to appreciate the nature of the defence and its implications on the outcome of the present suit, paragraph 25 of the written statement is reproduced below for ready reference: "25. The Defendant has been residing in her own independent right as the owner by way of Adverse Possession to the knowledge of the entire world as the owner. In fact the Defendant has got constructed the house in the suit schedule property and is residing as the owner of the suit schedule property.
The Defendant has been residing in her own independent right as the owner by way of Adverse Possession to the knowledge of the entire world as the owner. In fact the Defendant has got constructed the house in the suit schedule property and is residing as the owner of the suit schedule property. The defendant has all the necessary documents to prove the said fact and the same shall be produced at the time of her evidence." 16. On a plain reading of the extracted portion of paragraph 25 of the written statement, it is evident that the defendant has unequivocally acknowledged the title of the plaintiff. It is a settled position of law that a plea of adverse possession inherently presupposes the ownership of another person and requires the person setting up such a plea to admit the title of the true owner, while simultaneously asserting that such possession has become adverse to the said owner. Therefore, by asserting that she has perfected her title by adverse possession, the defendant has, in effect, admitted that the plaintiff is the rightful and original owner of the suit schedule property. 17. In the present case, the plaintiff has produced cogent documentary evidence, including the registered sale deed dated 03.02.1994 (Ex.P3) and supporting revenue records to establish his title. When these documents are viewed in conjunction with the admission contained in paragraph 25 of the written statement, the issue of title over the suit schedule property stands conclusively established in favour of the plaintiff. The said admission by the defendant is clear, categorical, and goes to the root of the matter, leaving no room for doubt regarding the plaintiff’s ownership. 18. Before this Court proceeds to adjudicate upon the plea of adverse possession raised by the defendant, it is also necessary to take note of certain admissions made by the defendant and her witness during the course of cross-examination, which materially undermine the defence set up in the written statement. These admissions not only contradict the defendant’s plea of adverse possession, but also discredit her alternate assertion that the residential house was constructed pursuant to a so-called family arrangement. 19. The testimony of D.W.1 (the defendant) and D.W.2 (her son), when examined in light of the plaintiff’s consistent case, reveals inherent contradictions and admissions that go to the root of the matter.
19. The testimony of D.W.1 (the defendant) and D.W.2 (her son), when examined in light of the plaintiff’s consistent case, reveals inherent contradictions and admissions that go to the root of the matter. Of particular significance are the following excerpts from their cross-examination, which deserve to be reproduced as they decisively rebut the plea of adverse possession and expose the shifting stand of the defendant: " Cross Examination of DW.1 by Sri. GDS Advocate for Plaintiff: ………It is true to suggest that electricity supply meter, pertaining to the Suit Schedule Property is standing in the name of the Plaintiff - Jatinder Singh and not in may name. I am possessing the latest electricity bill. I have not produced the same in this case. I do not remember the R.R.Number of the meter through which electricity supply is given to the Suit Schedule Property. xxx xxx xxx I have not produced any documents pertaining to my title over the Suit Schedule Property, in this case. Witness volunteers that before her husband could secured title documents from Jatinder Singh- the Plaintiff on settling the accounts, her husband died. My husband died in the year 2006. It is true to suggest that I have deposed in my Affidavit that I have entered into an Agreement with Mr. Ramachandran, for the purpose of construction of a house as per Agreement dt. 27.04.2007. Now I see the xerox copy of Agreement dt. 27.04.2007, produced by me (since it was a xerox copy, the said document was not marked as D-series) on confrontation and admission the said document is marked as Ex.P12. I am possessing the original copy of Ex.P12. It is true to suggest that in Ex.P12 there is recital with regard to approval and sanction of a building construction plan. I am in possession of the said sanction plain. I can produce the same in this case. It is true to suggest that as per Ex.P12 the agreed construction cost was Rs. 17,59,000/-. Witness volunteers that the cost of construction has inflated to Rs.26,00,000/-. I have not produced any documents to show the payments made to the contractor and the architect under Ex.P12 for construction of a building in the Suit Schedule Property. Witness volunteers that she has not kept the said documents with her. I have not produced any document to show that I have obtained hand loan from one Anitha Agarwal.
I have not produced any documents to show the payments made to the contractor and the architect under Ex.P12 for construction of a building in the Suit Schedule Property. Witness volunteers that she has not kept the said documents with her. I have not produced any document to show that I have obtained hand loan from one Anitha Agarwal. I have taken hand loan of Rs. 2,00,000/- from said Anitha Agarwal. I have not produced any documents to contend that I have incurred expenses of Rs. 35,00,000/- for construction of a house in the Suit Schedule Property. I have not produced any document to contend that, I had received money from LIC of India and to contend that I have sold the gold ornaments. I have made payment to the contractor by way of cash as well as through cheques. I have not produced any documents to show that I have made payments through cheques to the contractor. xxx xxx Further Cross Examination of D.W.1 by Sri. ADR Advocate for Plaintiff: xxx xxx It is true to suggest that from the date of purchase of the Suit Schedule Property, tax receipt issued for having paid tax, is in the name of Jathinder Singh - the Plaintiff. Cross Examination of D.W.2 by Sri. ADR advocate for Plaintiff: xxx xxx My uncle Jatinder Singh had executed Power of Attorney infavour of my father. Even my uncle Jatinder Singh had executed Power of Attorney infavour of my mother as narrated by me in my examination in chief Affidavit at Para No.8. xxx Now a xerox printout copy of the cheque bearing No.963077, sent to the witness by his uncle Jatinder Singh, is shown to the witness and questioned whether he has received the said cheque from his uncle. Witness answers in the affirmative. On admission and confrontation the said xerox printout of cheque is marked as Ex.P14." For the foregoing reasons, Point No.1 is answered in the negative FINDING ON POINT No.(2): 20. It is a well-settled principle of law that no amount of oral or documentary evidence can be entertained or relied upon in the absence of appropriate pleadings. This position has been consistently upheld by the Hon’ble Apex Court in numerous decisions, reiterating that the foundation of a case lies in the pleadings and that any evidence adduced without the necessary pleadings must be disregarded.
This position has been consistently upheld by the Hon’ble Apex Court in numerous decisions, reiterating that the foundation of a case lies in the pleadings and that any evidence adduced without the necessary pleadings must be disregarded. In the instant case, although the defendant has sought to produce certain documents in the appellate proceedings by invoking Order XLI Rule 27 of the Code of Civil Procedure, she has not taken any steps to amend the written statement so as to incorporate the factual assertions sought to be supported by such documents. 21. The defendant now seeks to set up a case that she constructed the residential house standing on the suit schedule property by utilizing the terminal benefits of her deceased husband, along with her personal savings and financial assistance obtained by way of hand loans from relatives. However, no such plea is forthcoming in the written statement originally filed before the Trial Court. In the absence of any foundational pleadings to this effect, the documents now produced in appeal, purportedly to establish such a claim, cannot be looked into or given evidentiary value. The Court cannot permit the defendant to circumvent the procedural rigour of pleadings and introduce an entirely new case through the backdoor by merely filing additional documents. 22. Even otherwise, the production of these additional documents appears to be a clear afterthought, lacking bona fides and credibility. The defendant, by her own admission, was employed as a teacher in an Army School and, therefore, by virtue of her education, background, and awareness, must be presumed to possess a reasonable degree of prudence. It was well within her means and knowledge to have disclosed all material facts at the earliest point in time. If, as now claimed, the construction of the residential house was funded by her own resources or those of her husband, the same should have been specifically pleaded in the written statement filed before the Trial Court. 23. Having failed to do so, and having suffered a decree against her, the defendant cannot now be permitted to raise an entirely new plea by relying upon additional evidence, especially in the absence of any amendment to the written statement. It is a settled proposition that an appellate court is not a forum to introduce new and inconsistent factual narratives.
Having failed to do so, and having suffered a decree against her, the defendant cannot now be permitted to raise an entirely new plea by relying upon additional evidence, especially in the absence of any amendment to the written statement. It is a settled proposition that an appellate court is not a forum to introduce new and inconsistent factual narratives. Furthermore, the contradictory stand now taken by the defendant, by asserting ownership of the house based on contribution of funds runs contrary to her earlier plea of adverse possession. Such inconsistent and shifting stands, introduced belatedly, not only lack legal sanctity but also undermine the credibility of the defendant’s entire case. 24. More importantly, the defendant’s plea that she constructed the residential house is untenable in the face of the plaintiff’s registered title documents, which clearly establish his ownership over the site upon which the house stands. Even if the defendant had, at some stage, contributed to or facilitated the construction, the ownership of the structure would inure to the benefit of the true owner of the land, unless a contrary legal arrangement is established, which is conspicuously absent in this case. 25. Further, the admissions elicited in the cross-examination of D.W.2, the son of the defendant, fortify the plaintiff’s case and further weaken the defence. D.W.2 has clearly admitted that his mother was authorized to oversee and coordinate the construction activity, including liaising with the contractor and ensuring smooth execution. It emerges from the evidence on record that the plaintiff, who is an established doctor residing in the United States, had the financial wherewithal to fund the construction of a residential house on the property he lawfully purchased in1994. 26. On the contrary, the records indicate that as late as 2006, the defendant and her husband were themselves residing in a rented house, and there is no evidence to show that they were in a financial position to undertake construction of the scale now claimed. The evidence on record, therefore, unmistakably points to the fact that the construction was executed for and on behalf of the plaintiff, and the defendant merely acted as a local facilitator owing to her familial relationship as the plaintiff’s sister-in-law. Her permissive occupation of the suit schedule property cannot, by any stretch, confer ownership rights or support the plea of adverse possession. 27.
Her permissive occupation of the suit schedule property cannot, by any stretch, confer ownership rights or support the plea of adverse possession. 27. For the foregoing reasons, the additional evidence now sought to be produced at this belated stage cannot be looked into. Accordingly, the I.A.1/2025 is rejected. Point No.2 is accordingly answered in the negative 28. In view of the foregoing reasons, this Court proceeds to pass the following: ORDER The appeal is devoid of merit and accordingly, stands dismissed