Punjab-Haryana High Court
Kuldeep Kumar Sharma vs Rbl Banarsi Dass Trust Society ... on 13 January, 2023
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
125 RSA No.45 of 2023
Reserved on : 09.01.2023
Date of Decision : 13.01.2023
Kuldeep Kumar Sharma ....Appellant
VERSUS
RBL Banarsi Dass Trust Society Registered ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Avnish Mittal, Advocate for the appellant.
ALKA SARIN, J.
The present appeal has been preferred by the defendant-
appellant against the judgments and decrees dated 16.05.2016 and
30.08.2022 passed by the Trial Court and the lower Appellate Court,
respectively, whereby the suit filed by the plaintiff-respondent was decreed
and the appeal filed by the defendant-appellant was subsequently dismissed.
The brief facts relevant to the present lis are that the plaintiff-
respondent (RBL Banarsi Dass Trust Society) is a registered Trust which is
owner of House No.4291 and House No.4291/2, behind B.D. Senior
Secondary School, Cross-Road No.2, Ambala Cantt. One Hans Raj Sharma
(father of the defendant-appellant) was a tenant in House No.4291 under the
plaintiff-respondent Trust and after his death his son occupied it as tenant.
The adjoining portion of House No.4291 i.e. House No.4291/2 was occupied
by one Amar Nath Sharma, maternal uncle of the defendant-appellant, at a
monthly rent of Rs.50/-. The said Amar Nath Sharma died without leaving
any Class-1 legal heir. After his death, the defendant-appellant is stated to
have occupied the said portion i.e. House No.4291/2 and started paying rent
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
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for the same against receipts after signing the counterfoils of the rent
receipts either himself or through his wife, namely, Chhaya Sharma.
On 21.04.2005 the plaintiff-respondent filed a civil suit [Civil
Suit No.18 of 2005] for permanent injunction against the defendant-
appellant in respect of both the properties i.e. House Nos.4291 and 4291/2
which was decreed vide judgment and decree dated 06.06.2007. The appeal
filed by defendant-appellant against the said judgment and decree was
dismissed vide judgment dated 17.01.2008.
The plaintiff-respondent Trust also filed an ejectment petition
against the defendant-appellant qua House No.4291 and the same was
dismissed vide order dated 28.02.2009 passed by the Rent Controller. An
appeal against the said order dated 28.02.2009 was accepted by the
Appellate Authority vide it's order dated 21.01.2010. Thereafter, a revision
petition was filed being CR-3504-2010 [Kuldeep Kumar Sharma vs. R.B.L.
Banarsi Dass Trust Society Regd.] which was dismissed by this Court vide
judgment dated 03.05.2011. The defendant-appellant filed SLP No.2034 of
2011 which was also dismissed vide order dated 05.08.2011 granting the
defendant-appellant 9 months' time to vacate the suit property therein i.e.
House No.4291. The said House No.4291 was vacated in May, 2012.
The plaintiff-respondent Trust also filed an ejectment petition
for eviction of the defendant-appellant from the portion of the property
bearing House No.4291/2. The defendant-appellant denied himself to being
a tenant in House No.4291/2. The said ejectment petition was dismissed by
the Rent Controller vide order dated 09.04.2010 holding that the defendant-
appellant did not inherit the tenancy rights of the said portion after the death
of Amar Nath Sharma and therefore he was not the tenant under the
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
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plaintiff-respondent Trust. The appeal filed by the plaintiff-respondent Trust
was dismissed on 25.01.2013.
In April 2013 the present suit for recovery of possession of
House No.4291/2 and mesne profits for the use and occupation of the
premises for the period from 22.04.2010 to 21.04.2013 was filed by the
plaintiff-respondent Trust. On notice, the defendant-appellant appeared and
filed his written statement alleging therein that he had taken forcible
possession of the suit property by breaking the locks in June 1995 and his
possession was hostile, continuous, uninterrupted and peaceful to the
knowledge of the plaintiff-respondent Trust and hence his possession has
matured into ownership by way of adverse possession. Replication was filed
by the plaintiff-respondent Trust reiterating the averments made in the
plaint. On the basis of the pleadings of the parties the following issues were
framed by the Trial Court :
1. Whether the plaintiff is in possession over the suit
property as prayed for as well as for recovery of
Rs.2000/- per month as future mesne profits ? OPP
2. Whether the suit is not maintainable in the present
form ? OPD
3. Whether the plaintiff has no locus standi to file the
present suit ? OPD
4. Whether the suit has not been properly valued for
the purposes of court fee and jurisdiction ? OPD
5. Whether the plaintiff has concealed true and
material facts from the Court ? OPD
6. Whether the suit is barred by limitation ? OPD
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
7. Relief.
integrity of this order/judgment.
Chandigarh
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The Trial Court vide it's judgment and decree dated 16.06.2016
decreed the suit filed by the plaintiff-respondent Trust and held it entitled to
mesne profits @ Rs.50/- per month from 22.04.2010 upto the date of
delivery of actual possession of the suit property. Aggrieved by the said
judgment and decree dated 16.05.2016, an appeal was preferred by the
defendant-appellant which appeal was dismissed by the lower Appellate
Court vide it's judgment and decree dated 30.08.2022. Hence, the present
regular second appeal by the defendant-appellant.
The only argument of learned counsel for the defendant-
appellant is that his possession of the suit property has matured into
ownership by way of adverse possession. Learned counsel for the defendant-
appellant would further contend that since possession of the defendant-
appellant has been hostile, continuous and uninterrupted, the suit of the
plaintiff-respondent Trust deserved to be dismissed and ought not to have
been decreed.
I have heard learned counsel for the defendant-appellant.
In the present case the defendant-appellant filed a written
statement in the earlier Civil Suit No.18 of 2005 filed by the plaintiff-
respondent Trust (Ex.P20) wherein he stated that he is in occupation of the
portion earlier possessed by his uncle, Amar Nath Sharma. He further stated
that the name of his wife was Chhaya Sharma. He admitted that the rent
receipts were signed by Shri Shyam Bihari, who used to collect the rent. In
his said written statement no such stand of having become owner of the suit
property by way of adverse possession was taken. Rather, the defendant-
appellant denied that he was un-authorizedly holding the suit property. After
passing of order dated 25.01.2013 by the Appellate Authority in the
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
ejectment petition for eviction of the defendant-appellant from the portion of
integrity of this order/judgment.
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the property bearing House No.4291/2, the plaintiff-respondent Trust issued
a legal notice dated 12.03.2013 (Ex.P3) directing the defendant-appellant to
hand over vacant possession of the suit property to the plaintiff-respondent
Trust which was duly replied to by the defendant-appellant.
In Dagadabai vs. Abbas [(2017) 13 SCC 705] the Supreme
Court held inter-alia as under :
"15. Third, the plea of adverse possession being
essentially a plea based on facts, it was required to be
proved by the party raising it on the basis of proper
pleadings and evidence. The burden to prove such plea
was, therefore, on the defendant who had raised it. It
was, therefore, necessary for him to have discharged the
burden that lay on him in accordance with law. When
both the courts below held and, in our view, rightly that
the defendant has failed to prove the plea of adverse
possession in relation to the suit land then such
concurrent findings of fact were unimpeachable and
binding on the High Court.
16. Fourth, the High Court erred fundamentally in
observing in para 7 that, "it was not necessary for him
(defendant) to first admit the ownership of the plaintiff
before raising such a plea". In our considered opinion,
these observations of the High Court are against the law
of adverse possession. It is a settled principle of law of
adverse possession that the person, who claims title over
the property on the strength of adverse possession and
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
thereby wants the Court to divest the true owner of his
integrity of this order/judgment.
Chandigarh
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ownership rights over such property, is required to
prove his case only against the true owner of the
property. It is equally well settled that such person must
necessarily first admit the ownership of the true owner
over the property to the knowledge of the true owner
and secondly, the true owner has to be made a party to
the suit to enable the Court to decide the plea of adverse
possession between the two rival claimants.
17. It is only thereafter and subject to proving other
material conditions with the aid of adequate evidence on
the issue of actual, peaceful, and uninterrupted
continuous possession of the person over the suit
property for more than 12 years to the exclusion of true
owner with the element of hostility in asserting the
rights of ownership to the knowledge of the true owner,
a case of adverse possession can be held to be made out
which, in turn, results in depriving the true owner of his
ownership rights in the property and vests ownership
rights of the property in the person who claims it.
18. In this case, we find that the defendant did not
admit the plaintiff's ownership over the suit land and,
therefore, the issue of adverse possession, in our
opinion, could not have been tried successfully at the
instance of the defendant as against the plaintiff. That
apart, the defendant having claimed the ownership over
the suit land by inheritance as an adopted son of Rustum
JITENDER KUMAR
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I attest to the accuracy and
and having failed to prove this ground, he was not
integrity of this order/judgment.
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entitled to claim the title by adverse possession against
the plaintiff."
In Ravinder Kaur Grewal vs. Manjit Kaur [(2019) 8 SCC
729] it was inter-alia held that :
"60. The adverse possession requires all the three
classic requirements to co-exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e.
adequate in publicity and nec precario i.e. adverse to a
competitor, in denial of title and his knowledge. Visible,
notorious and peaceful so that if the owner does not take
care to know notorious facts, knowledge is attributed to
him on the basis that but for due diligence he would
have known it. Adverse possession cannot be decreed on
a title which is not pleaded. Animus possidendi under
hostile colour of title is required. Trespasser's long
possession is not synonymous with adverse possession.
Trespasser's possession is construed to be on behalf of
the owner, the casual user does not constitute adverse
possession. The owner can take possession from a
trespasser at any point in time. Possessor looks after the
property, protects it and in case of agricultural property
by and large the concept is that actual tiller should own
the land who works by dint of his hard labour and
makes the land cultivable. The legislature in various
States confers rights based on possession."
In the present case the defendant-appellant has failed to lead
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
any substantial evidence to prove his plea of adverse possession. Counsel for
integrity of this order/judgment.
Chandigarh
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the defendant-appellant has not been able to refer to any evidence, oral or
documentary, led by the defendant-appellant to prove that his possession
was nec vi, nec clam, nec precario, i.e. peaceful, open and continuous. A
person seeking to establish his adverse possession has to show that his
possession is adequate in continuity, in publicity and in extent to show that
their possession is adverse to the true owner. It must start with a wrongful
disposition of the rightful owner and be actual, visible, exclusive, hostile and
continued over the statutory period.
In view of the discussion above, I do not find any ground to
interfere in the concurrent findings of fact returned by both the Courts
below. No question of law much-less any substantial question of law arises
for determination in the present appeal. The regular second appeal, which is
wholly devoid of any merits, is dismissed. Pending applications, if any, also
stand disposed off.
Dismissed.
( ALKA SARIN )
13.01.2023 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
JITENDER KUMAR
2023.01.13 14:50
I attest to the accuracy and
integrity of this order/judgment.
Chandigarh
