Atma Ram vs Jethu Ram

A.S. Nehra, J.—The defendant appellant has filed this appeal against the judgment and decree dated 10.1.1979 passed by the Additional District Judge, Patiala, by which the appeal tiled by the plaintiff respondent was allowed, the judgment and decree passed by the trial Court on 27.9.1975 was set aside, and the suit filed by the plaintiff-respondent was decreed.

The brief facts of the case are that the plaintiff-respondent filed the present suit for possession of the house, in dispute. According to the plaintiff, he purchased this house from its original owner Nandu, through registered sale deed dated 21.10.1946 and obtained its actual physical possession from its vendor. The plaintiff alleged that, about 4 years ago, he leased out this house to the defendant appellant at a monthly rent of Rs. 8/-and, since then, the relationship of landlord and tenant between the parties came into being ; that since the defendant did not pay the rent for a period of 2 years and 7 months, therefore, the plaintiff filed an ejectment application on the ground of non-payment of arrears of rent but, since the defendant pleaded therein that there was no relationship of landlord and tenant between the parties, so, that application was withdrawn ; and that the possession of the defendant over the disputed house, being in the nature of a tres-passer, was illegal.

The defendant-appellant contested the suit and pleaded that the house in his occupation was never purchased by the plaintiff respondent, nor Nandu was its owner ; that he had purchased the house, in dispute, from Om Parkash son of Mangat Ram through registered sale deed dated 18.6.1956 for a consideration of Rs. 3500/and, since then, he has been occupying the house as owner ; that Om Parkash was previously in possession of the house as owner and he got it built ; that the plaintiff-respondent was never in possession of the disputed house or the land underneath it within 12 years prior to the filing of the present suit, whereas the defendant-appellant has been in its occupation since 18.6.1956 and, prior to that, Om Parkash was occupying the same ; and that, therefore, the possession of the defendant-appellant was adverse to the knowledge of the plaintiff- respondent. The other pleas taken by the defendant-appellant were that the plaintiff-respondent was estopped from asserting his ownership and the suit was barred by the principles of res-judicaia.

On the pleadings of the parties, the following issues were framed :-

Whether the plaintiff is the owner of the house, in question, and is entitled to possession thereof ?

Whether the suit is within limitation ?

Whether the value for purposes of Court-fee and jurisdiction has been rightly fixed and proper Court fee has been paid ?

Whether the plaintiff is estopped from asserting his ownership to the house, in question ?

Whether the defendant is bona fide purchaser for consideration ? If so, its effect ?

Whether the suit is barred by principles of constructive res-judicata.

Relief.

The trial Court decided issues Nos. 1,2 and 5 against the plaintiff-respondent, while issues Nos. 4 and 6 were not pressed. The suit of the plaintiff respondent was dismissed by the trial Court on 27.9.1975.

The lower appellate Court framed an additional issue which reads as under :-

"Whether the defendant has become owner by adverse possestion ?"

On the additional issue, a report of the trial Court was called upon under Order 41, Rule 25, CPC The trial Court submitted its report dated 12.12.1978, giving a finding to the effect that the defendant-appellant had not become owner by adverse possession.

The learned counsel for the appellant has placed reliance upon sale deed Exhibit DW-2/1 dated 18 6.1956, executed by Om Parkasb in his favour. A careful perusal of site plan Exhibit DW-2/2, which was also prepared along with sale deed Exhibit DW-2/1. will show that the area purchased by the plaintiff was also included in this sale deed. The two rooms shown towards the north in Exhibit DW-2/2 are constructed over the same plot of land which was described as Plot No. 1 in Exhibit PW-4/2. Now, the question that arises is whether. Om Parkash was competent to sell this disputed portion alongwith his adjoining house, or not. The defendant-appellant appeared as DW-5 and admitted that Om Parkash handed over his own title deed to him at the time of executing the sale deed in his favour but that title deed has not been produced by Atma Ram defendant-appellant for the reasons best known to him. Had he produced the same, the things would have become clearer to know whether Om Parkash was competent to sell the disputed portion, or not. Sangta Ram aliad Sangta was examined as PW-5 who stated on oath that the disputed plot was sold by him in favour of Nandu. He further stated that their was a part of his ancestral house which was inherited by their father and then fell to his share. Om Parkash, executant of the sale deed in favour of the defendant-appellant, was also examined as DW-4. According to him, the entire property, sold by him, was inherited from his father. He could not deny this fact that Sangta was the real brother of his father Mangta. Further, he could not deny this suggestion that the disputed plot of land was sold by Sangta in favour of Nandu who, in turn, sold it in favour of the plaintiff. He does not state that the property was purchased by his father Obviously, it was ancestral property of Sangta and Mangta, which was received by them in equal parts. Sale deed Exhibit PW- 4/1 and site plan Exhibit PW-4/2 were prepared 40 years ago when there was no dispute regarding ownership. Men may tell lies but the circumstances do not. Therefore, I am of the considered opinion that the plaintiff-respondent was the owner of the plot of land described as Plat No. 1 in Exhibit PW-4/2

The learned counsel for the plaintiff-respondent has invited ray attention towards sale-deed dated 23.8.1939, a certified copy of which is Exhibit PW-4/1, through which Plot No. 1 described in site plan. Exhibit PW-4/2 was sold by Sangta in favour of Nandu. A. careful perusal of Exhibit PW-4/- will further show that the adjoining Plot No. 2 was the ownership of Mangta, real brother of Sangta, as mentioned in the sale deed itself. The learned counsel for the plaintiff-respondent has also referred to Exhibit PW-4/3 which is a certified copy of sale deed dated 21-19-1946 executed by Nandu in favour of Jethu plaintiff-respondent. The boundaries of the plot measuring 80 square yards sold through sale deed exhibit PW-4/3 tally with the boundaries and area of Plot No. 1 mentioned in sale deed Exhibit PW-4/1 and site plan Exhibit PW-4/2. Thus, it becomes abundantly clear that Jethu Ram plaintiff-respondent purchased that plot which was once owned by Sangta. In view of the above-mentioned discussion. I hold that the plaintiff-respondent is the owner of the house, in question, and he is entitled to possession thereof.

The learned counsel for the defendant-appellant has further argued that the defendant-appellant has become owner of the, disputed property through adverse possession. His contention is that the entire property, as discussed above, was purchased by the defendant-appellant vide sale deed dated 18.6.1956 and, since then, he has been in its possession as owner. The learned counsel for the defendant-appellant has also invited my attention towards the earlier statement of the plaintiff-respondent, according to which he had rented the house to the defendant-appellant about 25 years prior to his statement made on 4-3 1975. The learned counsel for the defendant-appellant has argued that, since according to the admission of the plaintiff-respondent, he had never been in occupation of the house for more than 12 years prior to the filing of the present suit on 30-12-''967, therefore, the defendant-appellant has become owner of the house through adverse possession. This argument of the learned counsel for the defendant- appellant is misconceived. So far as the question of limitation is concerned, it is well settled that an owner can file a suit for possession of his property at any time unless his title is extinguished through adverse possession. In other words, the defendant-appellant is required to prove his adverse possession in order to get the finding that the suit is time-barred. Now, reverting to the statement of the plaintiff-respondent, which was recorded before framing the additional issue in appeal on the point of adverse possession, even if it is presum- ed that the plaintiff-respondent is unable to prove his assertion that the house was let out in favour of the defendant-appellant 25 years ago it does not mean that the defendant-appellant will automatically become the owner of the disputed property through adverse possession. However, this thing becomes clear that since the date of sale-deed Exhibit DW-2/1, the defendant-appellant has been in possession of the property as its owner His possession was, of course, hostile towards the plaintiff-respondent but that is only for a period of 11 1/2 years on the date of filing the suit. The argument of the learned counsel for the defend ant-appellant is that the earlier possession of Om Parkash, which was also adverse to the plaintiff-respondent, could be tagged. This proposition of law is also not disputed but this fact is not established on the file that possession of Om Parkash was hostile towards the plaintiff-respondent. He was required to appear in the witness-box after framing an issue on the point of adverse possession so that the opposite party had an opportunity to test its veracity. The statement of Atma Ram defendant-appellant, which was recorded prior to the framing of issue on adverse possession, cannot be used against the plaintiff-respondent. At that time, the plaintiff-respondent was not conscious of this fact that he would be required to meet the plea of adverse possession. Had there been an issue on adverse possession framed earlier, the plaintiff-respondent would have cross-examined the defendant-appellant, keeping that in view. The plaintiff respondent cannot be taken by surprise by using the evidence against him. which was recorded earlier to the framing of the additional issue. 1 am, therefore, of the considered opinion that the evidence, which was recorded before framing the issue regarding adverse possession, cannot be taken into consideration The defendant-appellant must have offered those witnesses for cross-examination, whose evidence he wanted to use for proving the adverse possession.

In view of the above-mentioned discussion, I hold that the defendant-appellant has failed to prove his adverse possession over the house, in dispute. There is no merit in the appeal and, therefore the same is dismissed with costs. The costs are assessed at Rs. 1000/-.