Prem Nath Gupta vs Smt. Sushma
2023 Latest Caselaw 23756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:57621
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 131 of 2023
 

 
Appellant :- Prem Nath Gupta
 
Respondent :- Smt. Sushma
 
Counsel for Appellant :- Gyanendra Singh Sikarwar,Kuldeep Singh Sikarwar
 

 
Hon'ble Jaspreet Singh,J.

1. Heard learned counsel for the appellant.

2. The present second appeal under Section 100 CPC has been preferred by the appellant assailing the concurrent judgment and decree dated 23.05.2023 passed by the Additional District Judge, Court No.1, Lakhimpur Kheri in Civil Appeal No.42/2019 whereby it confirmed the judgment and decree dated 04.12.2019 passed by Civil Judge (Senior Division), Lakhimpur Kheri in Regular Suit No.12/2018, as a result, the suit filed by the plaintiff-appellant seeking a decree of declaration and permanent injunction has been dismissed, so also the first appeal.

3. Learned counsel for the appellant assailing the aforesaid two judgments and decree has strenuously urged that the plaintiff-appellant had filed a suit seeking declaration and permanent injunction with the specific pleadings that the property in dispute belonged to the defendant-respondent. The defendant had agreed to sell the said property to the plaintiff-appellant and since she was residing with her husband in the State of Haryana, accordingly, she had received a sum of Rs.96,000/- from the plaintiff and also executed a receipt.

4. It is further urged that this receipt was dated 10.01.1997 and thereafter the plaintiff made several attempts to persuade the defendant to execute the sale-deed, but the defendant evaded and consequently in the month of March, 1997, the plaintiff-appellant forcibly took the possession of the premises and thereafter once again requested the defendant to execute the sale-deed to which she did not agree thereafter the plaintiff raised constructions and got his name mutated in the Municipal Record, got an electricity connection in his name and also made shops and installed machines for extracting oil and thus the plaintiff has been in continuous possession of the premises in question since March, 1997 and in the knowledge of the defendant in his own rights, hostile to the original owner and, therefore, had perfected his right by adverse possession.

5. The suit came to be filed on 09.01.2018. It is thus urged that in the aforesaid suit where the contentions were not disputed by the defendant, as it proceeded ex-parte yet, the trial Court dismissed the suit without consider the Commissioner's report as well as the documents which were filed by the plaintiff-appellant to establish his case.

6. Be that as it may, the plaintiff-appellant being aggrieved by the judgment and decree passed by the trial Court dated 04.12.2019 preferred a regular civil appeal, which also met the same fate and being aggrieved, the plaintiff-appellant has approached this Court under Section 100 CPC.

7. For the purposes of admission, learned counsel for the appellant has submitted that two Courts have committed an error in discarding the Commissioner's report dated 02.03.2018 whereby the possession of the plaintiff-appellant over the property in dispute was established.

8. It is further urged that in terms of Article 65 of the Limitation Act, the period of possession as mentioned was duly fulfilled by the plaintiff-appellant and in the aforesaid circumstances, the plaintiff-appellant ought to have been declared as the owner of the property coupled with the fact that the other documents and averments made by the plaintiff-appellant were not examined appropriately by two Courts especially when they remained uncontroverted and thus two Courts have committed a grave error of law.

9. The Court has considered the submissions of the learned counsel for the appellant and also perused the material on record.

10. At the very outset, the plea of adverse possession which is sought to be agitated by the plaintiff-appellant was made the subject matter of the consideration by this Court in D.P. Misra v. S.D. Singh, 2019 SCC OnLine All 1838 and in Abdul Salam and others v. Imrana Siddiqui and others, 2019 SCC OnLine All 3924 where the issue of adverse possession has been considered in detail taking of the aid of decisions of the Apex Court and the relevant pleadings and evidence which are important for establishing a plea of adverse possession have been delineated. In the aforesaid mentioned cases, it has clearly been held that since a plea of adverse possession is taken to defeat the rights of the original owner, accordingly, there are no special equalities in favour of the person raising such plea. The plea has to be examined strictly in accordance with law of the pleadings as well as the evidence led by the parties and unless and until the five important ingredients are completely established, the plaintiff cannot succeed.

11. It is in the aforesaid backdrop if the pleadings are seen, it is not clearly mentioned as to on which date the plaintiff-appellant entered into the possession rather in the pleadings in Para-4 it has been pleaded that the plaintiff-appellant was miffed with the attitude of the defendant and in the month of March, 1997, the appellant forcibly entered into the possession. Later, in Para-5, it is sought to be explained that after entering into the possession, the plaintiff started digging the foundation and the defendant became aware and reached Lakhimpur Kheri on 28.03.1997 and resisted the constructions made by the appellant and therefore, the plaintiff-appellant has been in continuous possession since 28.03.1997.

12. It is on the aforesaid basis that the plaintiff-appellant claims that he has been in continuous possession for last more than 12 years and, therefore, he has perfected his rights. However, this Court finds that the basic premise upon which the suit was filed was based on an agreement to sell. It is the case of the plaintiff-appellant that he had paid a sum of Rs.96,000/- to the defendant-respondent but there has been no cogent efforts to prove the said transaction inasmuch as the plaintiff-appellant had only filed his own affidavit in examination-in-chief. Neither any independent witness was produced nor the alleged receipt was adequately explained inasmuch as the receipt which relates to acceptance of Rs.96,000/- was on Rs.100/- Stamp Paper and notarized copy which has been hit by virtue of Sections 33 and 35 of the Indian Stamp Act, 1899 and, therefore, would not come to the rescue of the plaintiff-appellant. The municipal receipts at best could only indicate that certain constructions which are present on the site are recorded in the Municipal Authorities in the name. Mere entry of the name in the Municipal record does not confirm title nor it establishes the title. The plaintiff ought to have either prayed for a decree in the nature of specific performance of contract inasmuch as his case was based on an agreement to sell [even if it was oral] but the fact remains that merely by pleading that the appellant had entered into an agreement and paid a sum and thereafter forcibly took the possession and has perfected his rights of adverse possession is not in appropriate manner and as noticed in the decision of the Apex Court as well as by this Court to establish the plea of adverse possession which has not been adequately explained. The documents have not been proved in accordance with law. Even if the suit proceeded ex-parte, it does not absolve the plaintiff to prove its own case.

13. The other submission that the Commissioner's report has not been adequately considered also is of no importance inasmuch as the Commissioner's report is only to establish the status and the spot position and that is not for collecting or creating of any evidence in respect of the possession, which has to be established independently [See: Khwaja Moinuddin Chisti Language University v. Dr. Arif Abbas and others, 2023 (2) ADJ 575 (LB)].

14. It is also relevant to notice that merely because the defendant did not controvert and the matter proceeded ex-parte, this in itself is not going to give any benefit to the plaintiff since he being the plaintiff is required to establish his case on the strength of his own pleadings as well as to prove the same. Apart from the solitary affidavit of the plaintiff himself, no other affidavit or evidence of any witness before whom the alleged transaction took place was filed nor there was any other document except photocopy which was filed by the plaintiff to establish his case.

15. This Court finds that all the aforesaid submissions made by the learned counsel for the appellant-plaintiff are misconceived also for the reasons that they are pure findings which have been recorded by the two Courts and this Court is not inclined to interfere in exercise of its power under Section 100 CPC. This Court is satisfied that no substantial question of law is involved in this appeal. Consequently, the second appeal is dismissed at the admission stage itself. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 29.08.2023

Rakesh/-