Dismissed

Bhajan Singh @ Harbhajan Singh and Ors. v. Balbir Singh and Ors.

Punjab & Haryana HC26 Feb 2014RSA/1588/2010

Case brief

AI extract

What is this about?

On a second appeal, the High Court dismissed the appeal, upholding lower courts' findings that while plaintiffs obtained permanent injunction, they could not get a declaration of title based on adverse possession, citing precedent on procedural bars. The court found no substantial question of law under CPC.

What did the court decide?

Instant second appeal dismissed with no order as to costs; impugned judgments of lower courts upheld.

Bhajan Singh @ Harbhajan Singh and Ors. Vs Balbir Singh… — Partition | Punjab & Haryana HC (2014)

¶1

¶2

RSA No. 1588 of 2010 (O&M)

¶3

IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

¶4

RSA No. 1588 of 2010 (O&M) Date of Decision: 26.2.2014

¶5

Bhajan Singh @ Harbhajan Singh and others

¶6

.....Appellants

¶7

Versus

¶8

Balbir Singh and others

¶9

.....Respondents

¶10

CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

¶11

Present: Mr. Sanjiv Peter, Advocate for the appellants.

¶12

¶13

1. To be referred to the Reporters or not?

¶14

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

¶15

¶16

RAMESHWAR SINGH MALIK J.

¶17

Plaintiffs are in appeal, against the concurrent findings of facts recorded by both the learned trial courts below, whereby their suit for declaration and permanent injunction was partly decreed, only qua the relief of permanent injunction, declining the relief of declaration.

¶18

Briefly put, facts of the case are that plaintiffs-appellants filed suit for declaration with consequential relief of permanent injunction claiming that possession for the last more than 35 years was open, hostile and uninterrupted. It was alleged that during the

¶19

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶20

RSA No. 1588 of 2010 (O&M) 2

¶21

said period Sucha Singh father of Joginder Singh installed a tubewell and got electric connection in the year 1970 after raising the construction as shown in the site plan attached with it. It was pleaded that plaintiffs No. 2 to 6 are paying electricity charges of this electric meter bearing No.APE 105 of 3 BHP. Bhajan Singh also raised construction and got electric connection in his name bearing No.KP39/0592 about 30 years back. After the death of Sucha Singh, his samadh was constructed in the disputed land by his family members and they have also planted various trees in it, which the defendants have no concern. It was alleged that the property of defendants adjoins to the property in dispute and they moved an application for partition, which was accepted and separate KURAS were allotted to the share holders. It was alleged that separate passage has been given to the property of the defendants to approach their land. But they started proclaiming that they are also share holders in the property in dispute without any right and threatened to take possession on 21.7.2004, which led to the filing of the present suit.

¶22

Notice of the suit was given to the defendants. Defendants No.1, 3, 8, 9 and 12 filed their joint written statement by taking preliminary objections that the suit is not maintainable, that the plaintiffs are estopped by their act and conduct from filing the present suit, that the plaintiffs have no locus standi to file the present suit and that the site plan attached with the plaint is not correct. On merits, if was stated that the property in dispute bears khasra No.313, which is

¶23

'Gair Mumkin Taur' left by ancestors of the defendants, who had joint Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶24

RSA No. 1588 of 2010 (O&M)

¶25

¶26

khata in Khasra No. 308 to 313 and 301, 302. It was pleaded that khasra No. 313 is a Taur, which is left as common and is being used as such. It was pleaded that two rooms, one Veranda and khurlies are in existence in khasra No. 312, 313, which are being used jointly and there is no exclusive construction of the plaintiffs in the property in dispute. It was alleged that khasra No.313 is only approach to the tubewell of the defendants, which is in khasra No. 308 to 313. It was denied that the plaintiffs have constructed the rooms in the property in disputed or there is any electric connection in their name. It was denied that Balbir Singh applied for partition, rather, defendants No. 5 and 6 applied for partition, which was accepted, but the same has no binding effect on khasra No.313, which is still joint and is being used by both the parties. Other facts pleaded were denied and the appearing defendants prayed for dismissal of the suit.

¶27

On completion of pleadings of the parties, learned trial court framed the following issues:-

¶28

“1. Whether the plaintiff is entitled to the relief of declaration as prayed for?OPP.

¶29

2. Whether the plaintiff is entitled to the relief of permanent injunction?OPP

¶30

3. Whether the suit is not maintainable?OPD

¶31

4. Whether the plaint is liable to be rejected U/o 7 Rule 1 (J) CPC?OPD

¶32

5. Whether plaintiff has no locus standi to file the present suit?OPD

¶33

6. Whether the wrong site plan has been

¶34

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶35

RSA No. 1588 of 2010 (O&M)

attached?OPD

7. Relief.”

With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs were not entitled for the relief of declaration because they could not have taken plea of adverse possession. Accordingly, their suit was partly decreed granting them only the relief of permanent injunction, restraining the defendants from interfering in the possession of the plaintiffs and dispossessing them forcibly, except in due course of law.

¶40

Feeling aggrieved, both the parties filed their appeals before the learned lower appellate court. Plaintiffs-appellants were claiming both the reliefs for declaration and permanent injunction, whereas defendants filed appeal alleging that the plaintiffs were not entitled even for the relief of permanent injunction. However, both the appeals came to be dismissed by the learned Additional District Judge, Jalandhar, vide impugned judgment and decree dated 11.8.2009. Hence this appeal at the hands of the plaintiffs.

¶41

Learned counsel for the appellants submits that possession of the appellants on the suit land was coming for more than 35 years at the time of filing of the suit. Their possession was open, hostile and uninterrupted, because of which the appellants had become owners in possession by way of adverse possession. He further submits that since the learned courts below failed to appreciate the Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶42

RSA No. 1588 of 2010 (O&M)

¶43

¶44

true factual as well as legal position in the correct perspective, the impugned judgments and decrees were liable to be modified and the suit of the plaintiffs-appellants deserves to be decreed in toto. He prays for setting the impugned judgments and decrees, by allowing the present appeal.

¶45

Having heard the learned counsel for the appellants at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, present one is not a fit case for exercising its jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

¶46

First of all, case of the plaintiffs-appellants was lacking in pleadings as well as evidence. To succeed on the plea of adverse possession and that too only as defendant, a heavy onus lies on the party who assert his title by way of adverse possession. The observations made by the Hon'ble Full Bench of this Court in Ganda Singh and others Vs. Ram Narain Singh, 1959 PLR 374 , which can be gainfully followed in the present case, read as under:-

¶47

“ In order to succeed on the plea of adverse possession, several facts have to be stated and substantiated by the party basing his title on this plea. Burden of proving all the elements of adverse possession is on the party setting up such a title. The plaintiffs in this case, in order to

¶48

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶49

RSA No. 1588 of 2010 (O&M)

¶50

¶51

succeed, had to allege and establish, that their possession was actual, adverse, exclusive, peaceful, continuous, unbroken open, notorious, visible, distinct, unequivocal and hostile under a colour of title, or, claim of right. He must further prove the date of commencement, the territorial extent and the length of his adverse possession. After title by adverse possession is prima facie substantiated, the defendant is given opportunity to refute the plaintiff's contention, by showing that some or all the elements which go to support the plea of adverse possession are missing. A defendant may lead evidence to show that the statutory period had not lapsed and the possession was still inchoate, or, that it was not hostile, or, that it was interrupted or, that it was based on fraud or was permissive or clandestine. The defendant could even defeat the plaintiff's contention, by showing, that the possession was not open, hostile, visible, public or notorious or, that he had no actual knowledge. After the parties have led evidence in support of their respective contentions, the Court, then determines the weight and sufficiency of the proof adduced.

¶52

An adverse possession, in order to secure title, does not merely consist of mental conclusion

¶53

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶54

RSA No. 1588 of 2010 (O&M)

¶55

¶56

or in proving of intention. It must have its basis, in existence of physical facts, as well as openly evidencing, the purpose to hold dominion over the property, in hostility to the title of the real owner, has such will be tantamount to giving of notice to the real owner with respect to such a purpose. The party alleging the title by adverse possession, which from its very nature, is commenced in wrong, and is maintained in right, must lead evidence entitling deduction, that the occupant held possession for himself, against all the world, and it was exclusive in the sense, that he either successfully turned out or shut out other claimants. It must be shown that the real owner was either evicted or excluded. The intention that is to be manifested is to hold the thing for himself (Animus sibi habendi) coupled with the intention to exclude every one else. (Animus alteri non-habendi).

¶57

An attribute of adverse possession is that it begins with disseisin or ouster of the owner. It is an act of displacement of the owner by the adverse claimant. Disseisin or ouster of the real owner is the foundation of the title by adverse possession. It remains an inchoate title, or a growing" title till the expiration of 12 years of its continued, open and hostile assertion and enjoyment. Before title by

¶58

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶59

RSA No. 1588 of 2010 (O&M)

¶60

¶61

adverse possession is perfected, all presumptions and intendments are in favour of the real owner. There are a very large number of hurdles before the adverse claimant, which he has successfully to clear. It is only after these obstacles are overcome, that the claimant of title, by adverse possession, receives the protection of law after the expiration of twelve years. Till then the law withholds its support from the wrong-doer.

¶62

Secondly, the Hon'ble Supreme Court clinched this issue in its recent judgment, putting the controversy at rest. The case was also very close to the facts of the present case. In the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another, 2014 (1) SCC 669 , plaintiff filed suit for declaration that it had become owner by way of adverse possession. Consequential relief of permanent injunction was also sought. Exactly as in the present case, relief of declaration was declined but the relief of permanent injunction was granted.

¶63

The relevant observations made by the Hon'ble Supreme Court in para Nos. 3, 6 and 7 of the judgment, which aptly apply to the facts of the present case, are as under:-

¶64

“ The appellant claims ownership by adverse possession on the ground that it is in possession of the land in dispute for sufficiently long period which fact has been established and, therefore, his suit could not be dismissed. We,

¶65

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶66

RSA No. 1588 of 2010 (O&M)

¶67

¶68

however, find that this relief of declaration has been denied on the ground that suit for such a prayer was not maintainable inasmuch as declaration to this effect on the basis of adverse possession cannot be sought and the plea of adverse possession is available only as a defence to the defendant.

¶69

6. It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the First Appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The First Appellate Court while dismissing the appeal observed as under:

¶70

“The respondents have not challenged the judgment and decree dated 6.1.2009 passed by the ld. Civil Judge (Jr. Div.), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13.4.1952. The issue whether adverse possession of the appellant/plaintiff had matured into his ownership is purely a question of law and it is a settled that no declaration of title can be sought on the basis

¶71

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶72

RSA No. 1588 of 2010 (O&M)

¶73

¶74

of adverse possession. Ld. Trial court has rightly relied upon the case titled Gurudwara Sahib Sannauli vs. State of Punjab PLR 756 wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, respondent No.1 was within its rights to auction a part of the same, on 19.12.2003 in favour of respondent No.2. Respondent No.1 has proved that land measuring 13B-12B was auctioned on 19.12.2003 in the presence of BDPO Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name of a consideration of Rs.1,11,000/- and the land measuring 6B on which the building of Gurudwara Sahib had been constructed, was not auctioned.

¶75

In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6.11.2009 passed by ld. Trial court and therefore the appeal is dismissed and the findings of the ld. trial court are affirmed. Decree sheet be prepared. File of lower court

¶76

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶77

RSA No. 1588 of 2010 (O&M)

¶78

¶79

be returned forthwith. File be consigned to the record room.”

¶80

7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.

¶81

A bare reading of the abovesaid observations made by the Hon'ble Supreme Court makes it clear that plea of adverse possession is not available to the plaintiffs as a weapon of attack but it is available only to the defendants as a weapon of defence. In the present case, learned courts below have proceeded on correct appreciation of facts as well as law, because of which the impugned judgments and decrees deserve to be upheld.

¶82

During the course of hearing, learned counsel for the appellants failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put

¶83

into service any substantiate argument, so as to convince this Court Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

¶84

RSA No. 1588 of 2010 (O&M)

¶85

¶86

to take a different view than the one taken by the learned trial court as well as learned first appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that both the learned courts below committed no error of law, while the impugned judgments and the same deserve to be upheld.

¶87

No other argument was raised.

¶88

Considering the peculiar facts and circumstances of the case 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.

¶89

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

¶90

(RAMESHWAR SINGH MALIK) JUDGE

¶91

26.2.2014 AK Sharma

¶92

Kumar Amit 2014.05.13 13:08 I attest to the accuracy and integrity of this document

Bhajan Singh @ Harbhajan Singh and Ors. v. Balbir Singh and Ors.

Case brief

What is this about?

What did the court decide?

Bhajan Singh @ Harbhajan Singh and Ors. v. Balbir Singh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Amar Singh Vs Neeraj Kumar and Ors.

Gurpreet Singh and Anr. Vs Pargat Singh and Ors.

Gurdarshan Singh Vs State of Punjab and Ors.

(O&M)Gurdial Singh & Ors. Vs Harnek Singh & Ors.

Bahgat Singh Vs Savitri Devi

Dalip Singh Vs Dhanbir