Partly allowed

Savitri Devi v. Shyam Sunder

Rajasthan HC15 Feb 2018CSA/167/1995

Case brief

AI extract

What is this about?

In this second appeal, the High Court quashed the lower courts' finding that the plaintiff acquired title via adverse possession, which the Apex Court held cannot be set up by a plaintiff. The permanent injunction restraining the defendants from interfering with the plaintiff's possession was upheld, while the defendants were entitled to claim possession based on their alleged ownership.

What did the court decide?

Injunction upheld; finding of plaintiff's adverse possession set aside; defendants entitled to claim possession via proper legal remedies.

Savitri Devi Vs Shyam Sunder — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 167 / 1995

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(1) Savitri Devi widow of Shri Guljari Lal, by caste Mahajan Saraogi, resident of Fatehpur, At present residing at Mumbai

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(2) Parturam (deceased) represented by his legal representatives:-

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2/1. Madan Lal (Died during the pendency of the second appeal)

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2/1/1.Smt. Sharda Devi wife of late Shri Madan Lal, by caste Brahmin, resident of Ward No. 20, Mohalla Podaron Ka, Near Asharam’s Mandir

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2/1/2.Smt. Sumitra Devi daughter of late Shri Madan Lal, wife of Shri Kishore Kumar Bansiwal, Poonam Electronics, Aguwa Darwaza, Ratangarh, District Churu

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Legal representatives of late Shri Madan Lal

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2/2. Ram Gopal

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2/3. Nand Lal

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2/4. Narain Prasad

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2/5. Smt. Rukmani widow of Shri Parturam,

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All residents of Podaron Ka Mohalla, Fatehpu8r, District Sikar

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2/6. Smt. Geeta Devi (since deceased) through legal heirs:-

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2/6/1.Manju Devi W/o Shri Narottam Sharma, Resident of village Churi Ajitgarh, District jhunjhunu

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2/6/2.Santosh Devi W/o Shri Kailash Sharma, Resident of Tehsil Govindgarh, District Jaipur

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2/6/3.Usha Devi w/o late Shri Narottam Sharma, Resident of Vaishali Nagar, Jaipur

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2/6/4.Vijya Devi W/o Shri Sitaram Sharma, Resident of Taranagar Jamshedpur, District Jharkhand

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(2 of 13)

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[CSA-167/1995]

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2/6/5.Vidhya Devi W/o Shri Prakash Sharma, Resident of Bandhunagar, Murlipura, Jaipur

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2/6/6.Sandhya Devi W/o Shri Anil Chotiya, Resident of Near Ramdevra, Nawalgarh, District Jhunjhunu

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2/6/7.Leela Devi W/o Shri Rajesh Sharma, Resident of Delhi.

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2/6/8.Deepmala W/o Shri Jugal Kishore Sharma, Resident of Neem Ka Thana, District Sikar

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2/7. Smt. Vimla Devi daughter of Shri Parturam, Resident of Podaron Ka Mohalla, Fatehpur, District Sikar

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----Defendants-Appellants

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Versus

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(1) Shyam Sunder S/o deceased Maliram – represented by his legal reprentatives:-

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1/1. Devi Dutt Son of late Shri Shyam Sunder Poddar

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1/2. Kailash Chand Son of late Shri Shyam Sunder Poddar,

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1/3. Kamal Kumar Son of late Shri Shyam Sunder Poddar

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1/4. Suresh Kumar son of late Shri Shyam Sunder Poddar

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1/5. Shakuntala Agarwal D/o late Shri Shyam Sunder Poddar

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1/6. Usha Tibrewal D/o late Shri Shyam Sunder Poddar

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1/7. Sharda Devi Modi D/o late Shri Shyam Sunder Poddar,

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1/8. Smt. B.S. Khetan D/o late Shri Shyam Sunder Poddar

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1/9. Smt. Jamna Devi W/o late Shri Shyam Sunder Poddar

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All resident of Poddaron Ka Mohalla, Fatehpur, District Sikar

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----Plaintiff - Respondents

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For Appellant(s) : Mr. Anil Mehta

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For Respondent(s) : Mr. Mahendra Goyal

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(3 of 13)

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[CSA-167/1995]

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HON'BLE MR. JUSTICE ALOK SHARMA Judgment

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15/02/2018

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Under challenge in this second appeal under

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Section 100 CPC is the judgment and decree dated 28.1.1995 passed by Addl. District Judge, Sikar in Civil Appeal No. 101/87 (35/86), whereby the regular first appeal filed by the appellants-defendants (hereafter ‘the defendants’) under Section 96 CPC was dismissed affirming the judgment and decree dated 15.11.1986 passed by Civil Judge, Sikar in the respondents-plaintiffs’ (hereafter ‘the plaintiffs’) suit for permanent injunction and declaration that the registered sale deed dated 17^th December, 1977 executed by the defendant no.1 Savitri Devi (now deceased and represented by LRs) in favour of the defendant no.2 Parturam was a nullity vis-a-vis the plaintiff’s legal right and possession over the suit land.

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This Court on 17.8.2006, admitted this second

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appeal on the following substantial question of law:

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“Whether under the facts and

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circumstances of the present case, the

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decision of the courts below on issue no. 1

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and 2 is contrary to the preponderating

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(4 of 13)

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[CSA-167/1995]

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weight of documentary and oral evidence on

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record?

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On Mr. Anil Mehta’s submissions and consequent to

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the defendants’ application filed on 25.1.2018 additional

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substantial question of law as under was also framed:

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Whether the courts below acted illegally

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in decreeing the plaintiff’s suit on a finding of

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adverse possession, moreso without requisite

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pleading and proof in respect thereof as

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warranted in law?

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Mr. Anil Mehta appearing for the defendants

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submitted that the trial court could not have decreed the

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plaintiff’s suit on a finding that he had obtained a title by prescription / on adverse possession. Reliance was placed upon the judgment of the Apex Court in the case of Dharampal (Dead) Through LRs Versus Punjab Wakf Board & Ors. {2017 SCC Online SC 1226}. Mr. Anil Mehta further submitted that the findings of the courts below on the issue

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of the plaintiff’s possession over the suit property are

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(5 of 13)

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[CSA-167/1995]

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absolutely perverse as the courts below have relied on the proceedings taken under Section 145 CrPC and interlocutory order of the trial court passed on 3.7.1978 even though in a revision thereagainst in S.B. Civil Revision Petition No. 289/1978 an order of status quo was passed by this Court on 25.8.1978 resultant to which the defendant continued to remain in possession. Mr. Anil Mehta submitted the said revision petition was subsequently dismissed as infructuous following the plaintiff’s suit being decreed by the trial court on 15.11.1986. The defendant being in possession, the plaintiff’s suit for injunction was liable to be dismissed.

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Mr. Mahendra Goyal appearing for the plaintiff submitted that the findings of the courts below that the plaintiff was in possession of the suit property at the time the suit was filed are based on documentary evidence, such as Ex.-1 – water connection in the suit property standing to the name of the plaintiff, Ex.-2 – a notice dated 9.12.1976 of Nagar Palika, Fatehpur to the plaintiff with regard to the necessity of having the damaged boundary wall of the suit property repaired amongst others. Mr. Mahendra Goyal

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(6 of 13)

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[CSA-167/1995]

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further submitted that the said documentary evidence before

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the trial court was fully buttressed by the evidence of PW-1

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Shyam Sunder, PW-2 Mahadev Prasad, PW-3 Surja Ram and PW-4 Hari Ram all living in the neighbourhood of the suit property who remained unshaken in their cross-examination. Mr. Mahendra Goyal further submitted that most importantly the prior possession of the plaintiff upto 8.12.1977 was admitted both by the defendants no. 1 and 2 in their written statement as also in their cross-examination, albeit with the bald assertion that the plaintiff had handed over the possession of the suit property to the defendant no.1 Savitri Devi on or about 8^th December, 1977. Mr. Mahendra Goyal further submitted that the said bald assertion was found both by the trial court and appellate court of little probative worth, without substance and unsustainable and rightly so in the context of the well settled legal position that once a person is found to be in possession, it is for the other claiming possession to show as to how and when he came into such possession, through legal processes or by consent. It was submitted that defence evidence on this score was woefully

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(7 of 13)

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[CSA-167/1995]

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lacking and in the circumstances there was a presumption in

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law that the plaintiff was in possession when he laid the suit

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on 23.12.1977. Mr. Mahendra Goyal further submitted that on

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the issue of adverse possession, the Apex Court has held that such plea can also be agitated at the instance of plaintiff and if the ingredients of adverse possession are fulfilled from requisite evidence, a decree based thereon can be passed. In support of the contention, reliance was placed on the judgment of the Apex Court in the case of Padmini Bai Versus Tangavva and others reported in AIR 1979 SC 1142.

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Heard. Considered.

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The Apex Court in the case of Dharampal (Dead) Through LRs Versus Punjab Wakf Board & Ors. (supra) has reiterated its earlier view in the case of Gurudwara Sahib Versus Gram Panchayat Village Sirthala {(2014) 1 SCC 669} that the plea of adverse possession cannot be set up by the plaintiff to claim ownership over the suit property but that such a plea can only be set up by the defendant by way of defence in his written statement in answer to the plaintiff’s suit.

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(8 of 13)

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[CSA-167/1995]

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I am of the considered view that in the aforesaid

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state of law, the judgments of the courts below insofar as they came to a finding with regard to the plaintiff’s right to the suit property on the basis of his purported adverse possession are liable to be quashed and set-aside. It is so.

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In this view of the matter there is no warrant to address the submission of Mr. Anil Mehta, counsel for the defendants that even otherwise from the evidence on record, the plea of adverse possession was not made out as neither the owner of the suit property against whom adverse possession was agitated was stated, nor its incidents averred nor the time when the possession actually became adverse disclosed either in the plaint nor brought on record from the evidence or it could be, absent in the pleadings.

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However as far as the findings of the courts below with regard to the plaintiff’s being found in settled possession and thus being entitled to injunction is concerned, I am of the considered view that they are based on a wholistic appreciation of evidence laid by the plaintiff and the defendants before the court and cannot be questioned and open to challenge in the narrow jurisdiction in a second

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(9 of 13)

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[CSA-167/1995]

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appeal. The courts below in coming to the finding that the plaintiff was in possession of the suit property on the date of filing of the suit on 23.12.1977 has inter-alia taken into consideration Ex.-1, which was the proof of water connection in the suit property standing to the name of plaintiff and Ex2, duly proved, was the notice issued by Nagar Palika, Fatehpur to the plaintiff as the occupier of the suit property requiring him to repair its damaged boundary wall. Further the evidence of the plaintiff’s witnesses all residents in the vicinity of the suit property stating that the plaintiff was in possession for several years remained unshaken in crossexamination. Above all, a clinching fact before the trial court in coming to a finding that the plaintiff was in possession of the suit property was the admission of the defendants themselves in their written statement and in their crossexamination that the plaintiff had admittedly been in possession of the suit property till 8^th December, 1977. Having so admitted, yet thereafter no evidence of any probative worth was produced by the defendants before the trial court with regard to the manner in which they then came into possession of the suit property in accordance with law. In this view of the matter, I am of the considered view that

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(10 of 13)

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[CSA-167/1995]

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there is no occasion for the findings of the courts below, that the plaintiff was in possession on the date of filing of the suit for injunction and he was thereafter unlawfully dispossessed despite the interim protection granted to him by the trial court on 23.12.1977 on his application under Order 39 Rule 1 and 2 CPC filed with the suit, to be interfered with.

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Mr. Anil Mehta the defendant’s counsel would however submit that the findings of the courts below on the plaintiff’s possession was on the basis of Ex.10, order dated 25.7.1978 passed by SDM, Fatehpur in proceedings under Section 145 CrPC and the interim order dated 3.7.1978 passed by the Trial Court directing the plaintiff to be put back in possession having been dispossessed during trial despite the Court’s interim injunction thereagainst, despite High Court’s status quo order dated 25.8.1978 in S.B. Civil Revision Petition No.289/1978 were unsustainable. I find no force in the submission inasmuch as the courts below have only additionally referred to the said orders without basing their conclusion thereon. They have relied upon substantive documentary and oral evidence as also the plaintiff’s admitted possession upto 8.12.1977 by the defendants’ who then failed to establish as to how they suddenly came into

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(11 of 13)

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[CSA-167/1995]

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lawful possession within 15 days. The courts below found the

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defendants’ claim of voluntary handing over of possession by the plaintiff wholly unbelievable and of little probative worth.

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It will be well to record that S.B. Civil Revision Petition No. 289/1998 filed at the defendant’s instance was finally disposed of as infructuous on 5^th May, 1987 subsequent to the plaintiff’s suit being decreed by the trial court on 15^th November, 1986. No order on its merits to the defendant obtaining / nothing to their advantage can be culled therefrom.

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The upshot of the aforesaid discussion is that the question of law as framed by this Court on 17.8.2006 i.e. as to whether under the facts and circumstances of the present case the decision of the courts below on issues no. 1 and 2 is contrary to the preponderating weight of documentary and oral evidence on record, is answered against the appellantsdefendants.

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However, I am of the considered view that in the facts obtaining, the other question of law agitated in the course of hearing of this appeal as to whether the finding of the courts below that the plaintiff had a right over the suit

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(12 of 13)

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[CSA-167/1995]

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land under the doctrine of adverse possession, moreso

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without any proper pleading and proof in respect thereof to the exclusion of the defendants’ title based on a document more than 30 years old, is answered in favour of the appellants-defendants in view of the Apex Court judgment in the case of Dharampal (dead) through LRs Versus Punjab Wakf Board (supra) and it is held that such a finding of adverse possession on the plaintiff’s assertion could not have been given.

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Resultantly, this second appeal to the extent of the decrees of the courts below granting permanent injunction against the defendants restraining them from interfering with the plaintiff’s possession is upheld. However the finding of the courts below as to the plaintiff’s adverse possession over the suit land is set-aside. The defendants shall in the circumstance be entitled to take their remedies, if any, in accordance with law inter-alia to claim possession of the suit land based on their purported legal right/ ownership. In that eventuality the plaintiff shall be free to take all defences in accordance with law including of adverse possession and the

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trial court shall be free to decide the said issue on the pleadings and evidence of the contesting parties.

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(13 of 13)

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[CSA-167/1995]

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Decree be drawn accordingly.

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(Alok Sharma), J.

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