Boota Ram vs Mukh Ram and Another

Dr. Vineet Kothari, J.—None appears for the respondents-plaintiffs- landlords, despite service. The present First Appeal has been filed by the defendant-tenant Boota Ram against the judgment and decree of possession dt. 31.07.1995 in Civil Suit No. 33/94 {5/89}-Mukh Ram and Thakar Ram, both sons of Chhoga Ram vs. Boota Ram S/o Ganpat Ram of learned Additional District Judge, Hanumangarh in respect of a suit house situated in village Satipura, District Hanumangarh.

The plaintiffs, Mukh Ram and Thakar Ram both sons of Chhoga Ram came with a case before the trial Court that their father Chhoga Ram and his brother Hazari Ram had purchased a plot ad-measuring 50'' x 40'' Yards from Gram Panchayat, Satipura on 20.08.1957, for which a Patta Ex.1 was issued in their favour by the said Gram Panchayat. Each of the brothers, Chhoga Ram and Hazari Ram divided their half share of the said plot ad-measuring 25''x40'' yards. The eastern side of the plot of 25''x40'', fell in the share of Hazari Ram and western side of the plot of 25'' x 40'' fell in the share of Chhoga Ram. The other brother Hazari Ram sold his half vacant portion of eastern side of the plot to one Charan Singh, whereas Chhoga Ram, father of the plaintiffs, constructed a residential house on the remaining western side portion of 25 x 40 Yards of the plot. After the death of their father, plaintiffs became the owners of the said residential house, which was given to the defendant Boota Ram by an oral license or permission by their uncle Hazari Ram, when they were living at 21 GB, Vijay Nagar away from the suit premises, with an understanding that when asked to hand over the vacant possession, the defendant, Boota Ram would so hand over the vacant possession, but since 1988 when the plaintiff asked the defendant Boota Ram to hand over the vacant possession, he refused to do so and thereupon by a notice dt. 19.09.1988 Ex.A/1, his license was terminated and the defendant was asked to give vacant possession of the said suit premises to the plaintiffs, which he failed to hand over and, therefore, the plaintiffs filed the present suit for possession and mesne profits of Rs. 100/- per month before the learned trial Court of Additional District Judge, Hanumangarh.

The defendant - Boota Ram took the defence before the learned trial Court that the plaintiffs have failed to produce the documentary evidence of mutual partition between Chhoga Ram and Hazari Ram and that the Patta- Ex.1 issued in their favour was forged and also that he had a long possession over the suit house for last 35 years and, thus, was residing there and, therefore, had become owner of the said property by the adverse possession and further the defendant took the defence that there was an Agreement to Sell in favour of the defendant dt. 01.06.1982 Ex.A/2 and, therefore, the plaintiff was not entitled to the decree of possession.

The learned trial Court after examining PW-1 Mukh Ram-the plaintiff himself, PW-2-Ram Karan-a neighbour, PW-3 Daulat Ram-an another neighbour and DW-1 Boota Ram-the defendant and DW-2 Kaluram, decided all the four issues in favour of the plaintiffs and decreed the suit for possession holding that the alleged Agreement to Sell Ex.A/2 produced by the defendant was the one executed by Sultan S/o Hazari Ram in respect of the half portion belonging to his father''s (Hazari Ram) eastern side portion of the suit property and not the disputed residential house constructed by plaintiffs'' father on his western side half share of the said plot of land purchased from the Gram Panchayat, Satipura for which the Patta was issued in their favour and the learned trial Court further held that the alleged long possession of the defendant could not be proved because in his statement recorded in the year 1994, he stated that his age to be 40 years in the year 1994 and, therefore, his 35 years'' count back to his age of 5 years and, therefore, his version was not reliable. As against that, the plaintiffs evidence before the learned trial Court was consistent and more cogent and consequently the suit for possession was accordingly decreed by the learned trial Court in favour of the plaintiffs Mukh Ram and Thakar Ram.

Learned counsel for the appellant-defendant, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi urged that the defendant had become owner under the Agreement to Sell vide Ex.A/2 and also had long possession over the land in dispute and, therefore, the Court below has wrongly decreed the suit of the plaintiff. He also submitted that none has appeared on behalf of the respondents-plaintiffs, despite service of the notices of this Court.

Having heard learned counsel and upon perusal of the evidence on record, this Court is satisfied that the present appeal of the defendant-Boota Ram deserves to be dismissed. The reasons are as follows.

The Patta Ex.1 was duly issued in the joint name of Chhoga Ram and Hazari Ram by the Gram Panchayat, Satipura on 20.08.1957 along with a Map Ex.2, was also produced by the plaintiffs, on which upon dispute between the parties, the Panchayat of the said Village tried to resolve the said dispute and on the Map Ex.2 signed by the Sarpanch of the Gram Panchayat, Satipura, on which western side portion of 25 x 40 Yards is shown to be belonging to Chhoga Ram and eastern side is shown to be belonging to Charan Singh and the said portion was sold by Sultan Ram S/o Hazari Ram, brother of Chhoga Ram. The notice Ex.A/1 dt. 19.09.1988 for terminating the license was given by the Advocate Mohd. Sharif of Hanumangarh to the defendant Boota Ram and, thus, the oral license in his favour stood terminated. The defendant, Boota Ram never took any steps for seeking specific performance of the alleged Agreement to Sell Ex.A/2, which also never pertain to the western side half plot on which the residential house of the Chhoga Ram was constructed, but was executed by Sultan Ram S/o Hazari Ram for eastern side half vacant plot of 25'' x 40'' and, therefore, the learned trial Court was perfectly justified in holding that the defendant, Boota Ram had no right, title or interest over the said western portion of the suit property belonging to Chhoga Ram having devolved upon the present two plaintiffs Mukh Ram and Thakar Ram after death of their father Chhoga Ram.

The version of long possession of the defendant, Boota Ram has also been rightly disbelieved by the learned Court below as the same was apparently raised as an excuse and the alleged claiming possession from his age of five years of the defendant was rightly not believed by the learned trial Court.

Recently, the Hon''ble Supreme Court in a very detailed and researching judgment in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., detailing the four types of possession under property law; Easements Act, 1882, Transfer of Property Act, 1882 and Specific Relief Act, 1963, dealing with a case of a well known and respected Christian family of Goa where the permissive & free of cost possession of suit premises was given by a sister to her brother as a caretaker, while the sister with her husband was out of Goa in relation to his service in Navy and which brother illegally denied her possession of her own house with title undisputed for 20 longs years. The Hon''ble Supreme Court allowing the sister''s appeal with costs of Rs. 50,000/- and mesne profits of Rs. 1 lac per month for the residential house, held in para 32 to 36 as under:-

Truth as guiding star in judicial process

In this unfortunate litigation, the Court''s serious endeavour has to be to find out where in fact the truth lies.

The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.

Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.

In Mohanlal Shamji Soni Vs. Union of India and another, this Court observed that in such a situation a question that arises for consideration is whether the Presiding Officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.

What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the Courts of justice.

In Ritesh Tewari and Another Vs. State of U.P. and Others, this Court reproduced often quoted quotation which reads as under:

...Every trial is voyage of discovery in which truth is the quest

Deprecating false claims and defences, which are considered really serious problems with real estate litigation, predominantly because of ever- escalating prices of the real estate, the Hon''ble Supreme Court in the aforesaid judgment in para 81 and 82 observed as under:-

False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in the Courts. The Supreme Court in Rameshwari Devi and Others Vs. Nirmala Devi and Others, aptly observed that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. This problem can be solved or at least can be minimised if exemplary costs is imposed for instituting frivolous litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate case would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

And then finally, allowing the sister''s appeal as aforesaid and laying down the principles of law in para 97 to 101, the Hon''ble Supreme Court held as under:-

Principles of law which emerge in this case are crystallized as under:-

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so.

Consequently, this Court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property.

In the peculiar facts and circumstances of this case, the legal representatives of the respondent are granted three months time to vacate the suit premises. They are further directed that after the expiry of the three months period, the vacant and peaceful possession of the suit property be handed over to the appellant. The usual undertaking to this effect be filed by the legal representatives of the respondent in this Court within two weeks.

The legal representatives of the respondent are also directed to pay Rs. 1,00,000/- (Rupees one Lakh) per month towards the use and occupation of the premises for a period of three months.

The said amount for use and occupation be given to the appellant on or before the 10th of every month. In case the legal representatives of the respondent are not willing to pay the amount for use and occupation as directed by this Court, they must hand over the possession of the premises within two weeks from the date of this judgment. Thereafter, if the legal representatives of the respondent do not hand over peaceful possession of the suit property, in that event, the appellant would be at liberty to get the possession of the premises by taking police help.

As a result, the appeal of the appellant is allowed. In the facts and circumstances of the case, the respondents are directed to pay a cost of Rs. 50,000/- to the appellant within four weeks. (We have imposed the moderate cost in view of the fact that the original respondent has expired). Ordered accordingly.

The Hon''ble Supreme Court in the case of State of Haryana Vs. Mukesh Kumar and Others, deprecating the law relating to the adverse possession claimed by such persons, who come into possession of any suit property without any legal title, the Hon''ble Supreme Court held as under:

A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession.

Though we got this law of adverse possession from the British, it is important to note that these days the English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission.

The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exists to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the Government records. The situation having changed, the statute calls for a change.

The Hon''ble Supreme Court also suggested to the Parliament that the Parliament should consider abolishing the law relating to the adverse possession. The relevant portion of the judgment is quoted below:

Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in the law in the larger public interest.

The Government instrumentalities-including the police-in the instant case have attempted to possess land adversely.

This is a testament to the absurdity of the law and a black mark upon the justice system''s legitimacy.

In view of the aforesaid legal position and evidence on record, this Court is satisfied that the learned trial Court was justified in decreeing the suit of the plaintiffs and there is no force in the present first appeal of the defendant-Boota Ram, the same is accordingly dismissed with a cost of Rs. 2,000/-.

The defendant Boota Ram, who is in the present occupation of the suit premises shall hand over the peaceful and vacant possession of the suit property viz., a residential house on 25'' x 40'' Yards situated at Gram Panchayat, Satipura, District Hanumangarh in question to the respondents-plaintiffs within a period of six months from today and shall further pay aforesaid cost and mesne profits @ Rs. 500/- per month, commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profits, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant shall also clear all the arrears of rent and mesne profits and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum and the same may be executed as a money decree against the defendant. The defendant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same, if so created, would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial Court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondents-plaintiffs within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the learned Court below and the concerned parties forthwith.