HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- SECOND APPEAL No. - 953 of 2015 Appellant :- Jagsain & Others Respondent :- Dharamvir & Others Counsel for Appellant :- Sanjay Kumar Singh, Man Mohan Das Agrawal Hon'ble Pramod Kumar Srivastava,J.
1. Original Suit No. 631/2007 (Jagsain and others Vs. Dharamvir) was filed for relief of permanent injunction. The case of plaintiffs (present appellants) was that ownership of disputed property belonged to defendant, from whom plaintiffs had purchased disputed house for consideration 17 years ago by oral transaction, and came in its possession. But later on defendant no. 1 had executed registered sale-deed of said property in favour of defendants no. 2 and 3, who are trying to interfere in possession of plaintiffs. Therefore plaintiffs had filed suit for permanent injunction.
2. After service of summons, defendants had not appeared, therefore case proceeded ex-parte against them. Then after accepting the evidence adduced by plaintiffs and affording them the opportunity of hearing, the trial court had dismissed the original suit on merits by its judgment dated 24.07.2014. Aggrieved by it, plaintiffs had preferred civil appeal no. 24/2014, Jagsain & others Vs. Dharamvir & others. This appeal was heard and dismissed on merit by judgment dated 29.07.2015 of District Judge, Gautam Budh Nagar. Aggrieved by the judgments of two courts below, present second appeal has been preferred by the plaintiffs of the original suit.
3. Learned counsel for the plaintiff-appellants contended that since the defendants-respondents had not appeared in original suit, therefore in the light of provisions of Order-VIII, Rule-5(2) CPC, the suit should have been decreed. This contention is legally unacceptable. The said provisions reads as under :
"(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved."
4. This contention of learned counsel for the appellants is incorrect that judgment in absence of pleading of the defendant must be pronounced by decreeing the suit. Every judgment should be passed on merits of the case. If trial Court finds that on facts of the plaint suit cannot be decreed then it shall be lawful for the Court to dismiss the same. If the Court finds that on facts of the plaint there is inability to grant relief to plaintiff, then it would be appropriate not to pronounce judgment but may require plaintiff to prove his case and, and then pronounce judgment on merit. In any case, every judgment has to be passed strictly on its merits.
5. In present case learned trial Court as well as learned first appellate court had passed their judgments on merits, after affording opportunity of hearing. There appears no error, impropriety or illegality in the procedure adopted by the to Courts below.
6. Learned counsel for the appellants contended that two courts below had not believed the uncontroverted and proved plaint case, therefore, their judgments are wrong. This contention is also totally erroneous. A perusal of the judgments of two courts below reveal that both the courts had believed the facts mentioned in the plaint of the suit to be true, but found that on the basis of those facts, plaintiffs are not entitled for any relief claimed, and his suit as well as the appeal should be dismissed. These judgments are strictly on merits, and has been passed after the application of judicial mind.
7. It is admitted legal position, as has been discussed by the lower courts, that Section-17 of the Registration Act provides for the registration for transfer of immovable property, which is a mandatory pre-condition for transfer of any right or title in immovable property. In present case, plaintiffs-appellants had pleaded that they had obtained ownership on the basis of unregistered oral sale. Admittedly, the basis of right of disputed property is claimed by oral contract of sale. Such a transaction cannot create a right in immovable property unless it is registered under Section-17 of the Registration Act. It is settled legal position, which is not denied by appellant side. Therefore on the basis of oral contract the appellants cannot illegally acquire any right in any immovable property. The findings of the two courts below on this point are concurrent and correct, which are hereby hereby confirmed. Therefore, suit of plaintiffs could not be decreed on the basis of his alleged purchase of disputed immovable property by unregistered oral sale.
8. The plaintiffs-appellants had never pleaded in his plaint anything like adverse possession. His counsel had placed oral documents in the two courts below regarding alleged right of plaintiffs on the basis of adverse possession. Trial court as well as first appellate court had rightly discussed these points before reaching to their conclusions that in absence of specific pleading to that effect, the contention regarding alleged adverse possession of plaintiff-appellants cannot be legally accepted. On one hand, plaintiffs claimed ownership on the basis of oral sale and on the other hand they had orally pleaded their right on the basis of adverse possession. These are self contradictory pleas. The owner of property cannot plead adverse possession in presence of his own plea of ownership.
9. Admittedly, the defendant was previous owner of disputed property. In absence of any registered transfer deed or final judgment of any court, his title over disputed property cannot be treated to be transferred in favour of plaintiffs-appellants. When permission of possession or license on behalf of real owner (the defendant-respondents) is withdrawn, the status of plaintiffs, if he is in possession, would be that of a trespasser. He cannot get relief of permanent injunction against the true owner.
10. There had been no pleading of adverse possession on behalf of plaintiff-appellants. Only oral arguments were raised by counsel for the appellant in this regard. This point was discussed by the two courts below who had given correct findings on fact and law. Such argument in absence of specific pleading is not acceptable.
11. In Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 Apex Court had held :
"2. 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, its suit could not be dismissed. We, 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.
10. - - - - - We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case the respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession."
12. A trespasser cannot get relief available to owner, against real owner, on the basis of adverse possession. In case of long continuous adverse possession, the owner may be deprived of his legal right to get back his possession from the trespasser because his such right to get such remedy would be time barred. In such circumstances, right of ownership would exist and continue, but his remedy may be barred by law of limitation. In other words long uninterrupted adverse possession of a trespasser may bar the remedy to owner if he seeks it against trespasser after the lapse of period of limitation. In such situation also his right exists but remedy is barred by law of limitation. The unauthorized possessor of any property may have good title against all the other persons but not against the true owner. Therefore, in any case if the trespasser is in wrongful possession, he cannot succeed in the legal proceedings for the relief of declaration of title in garb of permanent injunction against real owner. Plea of ownership of trespasser on basis of adverse possession, against the true owner, can be raised only in defence as defendant.
13. In present case plaintiff-appellants have claimed their right on disputed property as owner, which they have failed to prove. They had not claimed any relief on basis of plea of trespasser or adverse possession. Therefore their original suit and the first appeal was rightly dismissed.
14. In present matter the real dispute between the parties to the suit or about alleged title of plaintiffs-appellants over disputed property as pleaded in plaint. This has not been proved. The plaintiffs-appellants have failed to prove their ownership or title over disputed property. There has been concurrent finding of fact on this points against plaintiffs-appellants. These points strictly relate to facts ant not to law.
15. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this second appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained.
16. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
Order Date :- 17.11.2015 SR