Punjab-Haryana High Court
Janak Dulari vs Puran Chand on 2 May, 2024
Neutral Citation No:=2024:PHHC:060750
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA-975-1993 (O&M)
Reserved on:24.04.2024
Pronounced on: 02.05.2024
2024:PHHC: 060750
JANAK DULARI AND OTHERS
. . . . APPELLANTS
Vs.
PURAN CHAND AND OTHERS
. . . . RESPONDENTS
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Argued By:- Mr. Jai Vir Yadav, Sr. Advocate, with
Ms. Sunita Shekhawat, Advocate, for the appellants.
Mr. H.S. Batth, Advocate, for respondent No.1.
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DEEPAK GUPTA, J.
This Regular Second Appeal, by the defendant of the case, is
directed against the concurrent findings of the Courts below, whereby suit
of the plaintiff for possession of the suit property was decreed, and appeal
filed by the defendant was dismissed.
2. Trial Court record was called and the same has been perused.
In order to avoid confusion, parties shall be referred to as per their status
before the ld. Trial Court.
3.1 According to the plaintiff Puran Chand (now respondent No.1
through his LRs), he is owner of a plot measuring 198 sq. yards, situated in
Khewat No.737, Khatauni No.1011 Khasra No.2723/2010/497 situated in
Village Dholewal, Ludhiana, as per Jamabandi for the year 1979-80
(Ex.P4), purchased by him from one Kishori Lal vide sale deed dated
19.04.1958 registered on 25.04.1958 (Ex.P2). Boundaries of the said plot
are duly mentioned in the head note of the plaint. Plaintiff claimed to be in
possession of the aforesaid plot since the time of purchase. As defendant
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Lachhman Dass (now through his LRs-appellants and respondents No.2 to
6) threatened to interfere in the possession of the plaintiff and make
encroachment on the same, plaintiff filed a suit for permanent injunction to
restrain him (defendant) from doing so. The Court of ld. Sub Judge, Ist
Class, Ludhiana issued an injunction order directing the parties to maintain
status qua till pendency of the suit. Appeal against that order was dismissed.
However, contravening the said injunction order, defendant dispossessed
the plaintiff from the suit property and forcibly occupied the same on
08.01.1983, when plaintiff was away and regarding which plaintiff came to
know on 10.01.1983. Plaintiff noticed that defendant had raised a wall
towards the thoroughfare, had installed hand pump and constructed a small
latrine in the suit property and had further opened a door towards the plot in
dispute. Plaintiff moved an application to convert the suit for permanent
injunction to that of possession and another application to charge the
defendant for committing the breach of injunction order. However, that suit
was dismissed in default under Order 9 Rule 3 CPC in the absence of both
the parties.
3.2 Plaintiff then filed a fresh suit, claiming that there was no
impediment in bringing the present suit. Plaintiff prayed for decree for
possession over the suit property after demolishing and removing CGI
sheets etc. from the suit property as shown red in the site plan and further to
issue mandatory injunction directing the defendant to clear the window
towards the suit property.
3.3 As defendant Lachhman Dass expired during pendency of the
suit, his LRs were brought on record.
4. Defendant, in his written statement, raised some preliminary
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objections. He alleged the sale deed relied upon by the plaintiff to be a
forged document and further claimed that plaintiff was never in possession
of the suit property. Defendant further claimed to be in possession of the
suit property for the last more than 12 years and that his possession was
upon continuous and undisputed for the last more than 12 years and so, he
had become owner of the suit property by way of adverse possession.
Defendant further claimed that he was running a dairy on the suit property
and having become its owner by way of adverse possession, had installed a
hand pump as well as constructed a latrine.
5. In replication, plaintiff reiterated his averments and
controverted the stand of the defendant.
6. Following issues were framed for adjudication:
(1) Whether the plaintiff is owner of the suit property? OPP
(2) Whether the plaintiff is entitled to possession of the suit
property as prayed for? OPP
(3) Whether the property has not been described correctly in the
plaint? OPD
(4) Relief.
7. Ld. trial Court decided issues No.1 & 2 in favour of the
plaintiff. Issue No.3 was disposed of as not pressed. Consequent to these
findings, suit was decreed on 31.08.1987. The appeal filed by the defendant
was dismissed by the First Appellate Court of Ld. Additional District Judge,
Ludhiana vide judgment and decree dated 21.02.1992. Both the Courts
gave concurrent finding of the effect that plaintiff is the owner of the suit
property and that defendant had failed to establish that he had become
owner of the same by way of adverse possession.
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8.1 Against the aforesaid findings, this Regular Second Appeal is
filed. It is contended by ld. counsel that suit is covered by Articles 64 and
65 of the Limitation Act; that first part of the relief of the plaintiff is based
on Article 65 of the Act and the second part is covered under Article 64 of
the Act and that plaintiff had miserably failed to prove his possession prior
to filing of the suit or to substantiate his claim and so, Courts below have
committed a grave error in discussing only the first part of the allegation of
the plaintiff.
8.2 It is contended further that plaintiff had only purchased a part
of khasra number 2723/2010/497 and that he could not connect the sale
deed with the property described in head-note of the plaint. Further, the
disputed property is surrounded by houses and constructed property and so,
no presumption could be drawn that property described in the plaint is the
same property, which is covered under the sale deed relied upon by the
plaintiff.
8.3 Further ld. Courts below wrongly ignored the cogent evidence
brought on record by the defendant showing his continuous, peaceful and
uninterrupted possession over the disputed property for the period of more
than 12 years.
8.4 The appellant also moved an application under Order 41 Rule
27 CPC (CM-2056-C-1994) stating therein that on the western side of the
property in possession of the appellant, there is a land of India Expeller,
which is also on Khasra No.2723/2010/497 i.e. same Khasra number, to
which the sale deed of the plaintiff pertains. Two more industries in the
name and style of Standard Industries and Surindera Engineering Works
also exists there, which could be the land, for which the suit has been filed
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as they also exist on the same khasra number. The appellants -defendants
further claimed that they are in fact in the possession of different khasra
number i.e. 2724/2010/497, which title is based on a sale deed and that
respondents-plaintiffs want to take illegal benefit by giving wrong details of
the boundaries. In order to substantiate this contention, appellants sought
permission to place on record various documents in the shape of revenue
record and the sale deeds.
Needless to say that in their reply, the respondents-plaintiffs
have opposed the application.
9. I have considered submissions of both the sides and have
appraised the record.
10. It is fairly conceded by ld. counsel for the appellants-
defendants during arguments that the contention sought to be raised in the
application for additional evidence to the effect that appellants are in
possession of different khasra No.2724/2010/497 based on a sale deed, is
absolutely beyond pleadings. Specific case of the plaintiff-respondent was
to be owner of the suit property forming part of Khasra No.2723/2010/497
with specific boundaries given in the head note of the plaint and the site
plan. On the other hand, stand taken by the defendant/appellant in the
written statement was to have become owner of the suit property by way of
adverse possession. Nowhere it was pleaded that defendant-appellant was in
possession of Khasra N.2724/2010/497; or that suit property of the plaintiff
was not part of khasra number 2723/2010/497.
11. In the aforesaid facts and circumstances, the appellants (LRs of
defendant) cannot be allowed to go beyond his pleadings and therefore, the
application seeking permission to produce additional evidence under Order
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41 Rule 27 CPC in this Regular Second Appeal, is hereby dismissed.
12. Coming to the merits of the case, it is the specific stand of the
plaintiff that he is the owner of the suit property on the basis of a sale deed
dated 19.04.1958 registered on 25.04.1958 (Ex.P2) and that he has been
dispossessed from the same by the defendant during pendency of the
previous suit on 08.01.1983, about which plaintiff had come to know on
10.01.1983. Both the Courts below have upheld this contention of the
plaintiff to be owner of the property in dispute on the basis of sale deed.
The plea of defendant to have become owner of the suit property by way of
adverse possession has been disbelieved by both the Courts below by giving
detailed reasoning.
13. Even the contention of the appellant/defendant to the effect
that boundaries of the suit property as given in the head-note of the plaint
did not match with the boundaries given in the sale deed relied upon by the
plaintiff, has been duly dealt with by the first appellate Court in para No.10
of its judgment dated 21.02.1992 and it has been found that boundaries of
the suit property were mentioned in the sale deed executed in 1958 as per
the position, which existed at that time; whereas, the boundaries of the suit
property have been mentioned in head-note of the plaint as per the position
at that time.
14. Findings of the Courts below to the effect that defendant could
not prove his possession over the suit property for the last more than 12
years or to have become owner by way of adverse possession, is a finding
of fact based on proper appreciation of evidence.
15. In "P. Chandrasekharan and Others vs S. Kanakarajan &
Others"2007(3) RCR(Civil) 543, it has been held by the Hon'ble Supreme
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Court that though as a general rule, High Court will not interfere with the
concurrent findings of the Courts below, but it is not an absolute rule. Some
of the well recognised exceptions are where:
(i) the courts below have ignored material evidence or acted on no
evidence;
(ii) the Courts have drawn wrong inferences from proved facts by
applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof.
16. In the present case, this Court does not find any of the
exceptions mentioned above to be applicable in the findings of fact given
concurrently by the Courts below. The Courts below have rightly held that
once the title of the plaintiff regarding suit property was duly proved, it was
for the defendant to prove that he had perfected his title by way adverse
possession as was alleged by him and defendant-appellant has utterly failed
to discharge his onus.
17. As such, finding no merit in the present regular second appeal,
the same is hereby dismissed.
18. Before parting with, it is noticed that this court vide order
dated 19.5.1993 had stayed dispossession of the appellants from the suit
property. Thus, respondent-plaintiff (through his LRs) despite being title
holder of the suit property is deprived of the enjoyment of his own property
for the last more than 40 years, as he had been dispossessed in January,
1983. Plaintiff had filed the suit in May, 1983 in the hope that he will get
possession being owner thorough process of the court. His hopes dashed, as
despite winning from two courts below, he could not get possession because
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of the stay by this court.
19. In all the above facts and circumstances, appellants &
performa respondents (LRs of defendant) are directed to immediately
hand over the possession of suit property to the respondent - plaintiff
(through his LRs), maximum by 15.5.2024. In case, they fail to do so and
the respondent - plaintiff (through his LRs) - Decree Holder, are compelled
to file execution for implementation of the decree, the appellants will pay to
them user charges at the rate of ₹ 2,00,000/- per month, effective from
16.5.2024, till the suit property is actually vacated and possession is handed
over to decree holders.
20. Pending application(s), if any, also stand disposed of.
(DEEPAK GUPTA)
02.05.2024 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether //reportable? No
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