Dismissed

Hans Raj v. Kanta Devi and Ors.

Punjab & Haryana HC11 Mar 2014RSA/1346/2014

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for partition of joint family land, the High Court dismissed the appellant's challenge to the lower courts' decree. Upholding the finding that the land was joint and liable to partition, the court rejected the claim of adverse possession due to lack of specific pleadings and evidence. Citing Supreme Court precedents on settled possession and order under CPC 100,

What did the court decide?

The instant appeal is dismissed with no order as to costs.

Hans Raj Vs Kanta Devi and Ors. — Partition | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-1346-2014 (O&M) Date of Decision: 11.03.2014

Hans Raj

...... Appellant

Versus

Rameshwar & Ors.

...... Respondents

CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Anand Singh, Advocate, for the appellant.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK, J.

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Feeling aggrieved against the concurrent findings of facts, recorded by both learned Courts below, thereby decreeing the suit for separate possession by way of partition, defendant has filed the present regular second appeal.

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The case set up by the plaintiffs, as per the facts recorded by first appellate court in its impugned judgment, was that total area of the suit land was 16 marlas and it comprises of Khewat No. 46, Khatauni No. 52, Khasra No. 242, per jamabandi for the year 2000-2001 of village Talakaur, District Yamuna Nagar. According to the plaintiffs, they were owners to the extent of 08 Marlas land, defendant No.1 was owner of 07 Marlas land while defendant No.2 was owner of 01 Marla land. It was averred that defendant No.1 wanted to raise construction on the suit land beyond his share and he had threatened the plaintiffs that if they would create any hindrance in his illegal work, then he would alienate the whole suit

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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land including plaintiffs' share. So, necessity arose for the plaintiffs to file a suit for partition.

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Defendant No.1 contested the suit. His plea was that the plaintiffs neither were co-sharers nor have any concern with the suit land and they have concealed the true facts. According to him, his ancestors were in continuous possession of the suit land even prior to the year 1952-53 and his father had constructed a Kacha house. No person had ever objected against such construction. Later, he had purchased 1/4^th share in the suit land from Garibu son of Bichha vide registered sale deed dated 27.11.1969 and also the share of defendant No. 2(1) to (iii) vide registered sale deed dated 29.04.2004. After the death of his father, he had demolished Kacha house and had constructed a Pucca residential house in the month of December, 1969. The plaintiffs had not raised any objection even at that time. So, he has become owner even by adverse possession and the suit was liable to be dismissed.

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Defendant No. 2(i) has filed a separate written statement. His plea was that the plaintiffs' predecessor-in-interest, Peerdhar, had orally sold his share in the suit property and now defendant No.1 was in possession of said share since long. He has further pleaded that he along with his two sisters, namely, Chambo Devi and Indo had sold 03 Marlas land to defendant No.1 vide sale deed dated 29.04.2004 and he and his sisters now are co-sharers in the suit property only to the extent of 1/16 share. As regards construction of

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house by defendant No.1, the plea of answering defendant was that Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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construction was raised with the consent of other co-sharers.

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On completion of pleadings of parties, the learned trial

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Court framed the following issues :-

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Whether the suit land mentioned in the head note of plaint is joint of the parties and is liable to be partitioned. If so, to what share ?OPP

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Whether the plaintiffs have no locus standi ?OPD

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Whether the suit is not maintainable?OPD

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Whether the suit is time barred?OPD

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Whether the plaintiff has concealed material facts?OPD

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Whether defendant No.1 has become owner of suit property by way of adverse possession?OPD

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Whether the defendant is entitled to special costs?OPD

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Relief.

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With a view to prove their respective stands taken, both the parties led their evidence. After hearing both the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that the plaintiffs have duly proved their case. Consequently, the suit for separate possession by way of partition was decreed by the learned trial Court vide impugned judgment and decree dated 23.2.2010. First appeal filed by defendant No.1appellant also came to be dismissed by learned District Judge, Yamuna Nagar vide his impugned judgment and decree dated 4.7.2013. Hence, this appeal.

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Learned counsel for the appellant submits that the

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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plaintiffs-respondents have failed to prove their case. The suit was liable to be dismissed for want of sufficient and cogent evidence. However, since learned courts below misdirected themselves while completely misreading, misconstruing and mis-interpreting true facts of the case and also the evidence available on record, the impugned judgments and decrees were not sustainable in law. He prays for setting aside the judgments and decrees, by allowing the present appeal.

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Having heard learned counsel for the appellant at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (for short 'CPC'). No question of law much less substantial question of law has been found involved in the present case. To say so, reasons are more than one, which are recorded herein-after.

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A combined reading of both the impugned judgments and decrees would show that the learned Courts below proceeded on a factually, correct and legally justified approach, while passing their respective impugned judgments and decrees. No doubt, a presumption of truth is attached to the entries in the revenue record, as per the provisions of Section 44 of the Punjab Land Revenue Act,

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However, it is equally true that this presumption is always Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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rebuttable. In the present case, appellant-defendant No.1 contradicted himself to such an extent that his stand cannot be reconciled. On the one hand, he claims himself to be owner by way of adverse possession. He purchased the land vide registered sale deed dated 29.04.2004, thereby recognising the right of his other cosharers in the suit land, as recorded in the relevant jamabandi for the year 2000-2001 (Ex. P-1). Having said that, this court feels no hesitation to conclude that defendant No.1-appellant had neither any case on facts nor in law. Thus, learned courts below committed no error of law, while decreeing the suit of the plaintiffs and the same deserve to be upheld.

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So far as the plea of adverse possession was concerned, appellant was under legal obligation to take specific and categoric averments in his pleadings, however, he failed to do so. Further, plea of adverse possession, in the very nature of things, presupposes the ownership of other side. In the present case, appellant not only failed to take appropriate averments but also failed to lead any cogent evidence in this regard. Further, to protect his possession, it was obligatory on the part of the appellant-defendant No.1 to show his valid and legal title, however, he failed to plead and prove. In fact, the appellant-defendant No.1 was holding his possession only as cosharer. In such a situation, he would be deemed to be in possession on his behalf as well as on behalf of his other co-sharers as held by a Full Bench of this Court in Bhartu vs. Ram Sarup, 1981 PLJ 204 ,

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which was reiterated by a larger Bench of five Judges in Ram Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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Chander vs. Bhim Singh & Ors., 2008(3) R.C.R.(Civil) 685 .

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The abovesaid view taken by this Court finds support from the judgment of Hon'ble Supreme Court in Ram Gowda (D) by LRs and Anr. Vs. M. Varadapa Naidu, 2004(1) RCR (Civil) 519 . The law laid down by Hon'ble the Supreme Court in para 6 to 9 of the judgment, which can be gainfully followed in the present case, reads as under :-

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“The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144 , Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

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The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003)2 RCR (Civil) 828 (SC) : (2003)7 SCC 350. In between, to quote a few out of several, in Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and others- (1968) 2 SCR 203 , this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad v. Lakshmi Das (AIR 1959 Allahabad 1, 4) , "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause." In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander and Ors. (1968) 3 SCR 163 , this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft’s maxim ’Possessio contra omnes valet praeter eur cui ius sit possessionis (He that hath possession hath right against all but him that hath the very right)’ and said, "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and thus be able to raise a

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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presumption prior in time". In M.C. Chockalingam and Ors. v. V. Manickavasagam and Ors. - (1974) 1 SCC 48 , this Court held that the law forbids forcible dispossession, even with the best of title. In Krishn Ram Mahale (dead) by his Lrs. v. Mrs. Shobha Venkat Rao, 1990(1) R.C.R. (Rent) 525 : (1989) 4 SCC 131 , it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh, Advocate (1995)(2) RRR 444 (SC) :(1995) 3 SCC 426 , this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.

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It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law, he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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trespasser, just entered into would not be called as one acquiesced to by the true owner.

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It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. v. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. v. State of Uttar Pradesh (1977) 1 SCC 188 . The authorities need not be multiplied. In Munshi Ram & Ors.’s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.’s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ’settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase ’settled possession’ does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ’settled possession’ :

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i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

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iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.”

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The above-said law laid down by Hon'ble the Supreme Court in Rame Gowda (supra) came to be reiterated by Hon'ble the Supreme Court in Maria Margarida Fernandes and others vs. Erasmo Jadk de Sequeria (Dead) through L.Rs. and Others, 2012 (5) SCC 370. The relevant observations made by Hon'ble Supreme Court in para 69, 70 & 71, which aptly apply to the facts of the present case, read as under :-

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“xx xx xx xx xx xx The person averring a right to continue in possession

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

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It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

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(a) who is or are the owner or owners of the property;

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(b) title of the property;

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(c) who is in possession of the title documents

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(d) identity of the claimant or claimants to possession;

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(e) the date of entry into possession;

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(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;

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(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

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(h) If taken on rent, license fee or lease – then insist on rent deed, license deed or lease deed;

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(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

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(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

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(k) basis of his claim that not to deliver possession but continue in possession.

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Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.”

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Before concluding, the Hon'ble Supreme Court in para 101 of the judgment laid down the following principles of law :-

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“1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

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2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

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3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

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4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

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5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”

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During the course of hearing, learned counsel for the

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appellant failed to point out any jurisdictional error or patent illegality

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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apparent on the record of the case, in either of the impugned judgments passed by learned Courts below. He also failed to put into service any substantive argument so as to convince this Court to take a different view than the one taken in the impugned judgments. Further, no question of law, much less substantial question of law has

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been found involved in the present case, which is sine qua non for interference by this Court, while exercising its jurisdiction under Section 100 of CPC. Thus, the impugned judgments and decrees deserve to be upheld, for this reason also.

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No other argument was raised.

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Considering the peculiar facts and circumstances noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, the instant appeal stands dismissed, however, with no order as to costs.

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11.03.2014 ‘Satyawan’

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( RAMESHWAR SINGH MALIK ) JUDGE

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Satyawan 2014.06.12 13:19 "I attested to the accuracy and integrity of this document" High Court Chandigarh

Hans Raj v. Kanta Devi and Ors.

Case brief

What is this about?

What did the court decide?

Hans Raj v. Kanta Devi and Ors.

Case brief

What is this about?

What did the court decide?

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