Gaurishanker and Others vs Gopal Krishan

Dr. Vineet Kothari, J.—The appellants/defendants, having lost the legal battle before the two courts below, have filed the present second appeal under Section 100 of CPC, 1908, in this Court on 27.10.2014 assailing the judgment and decree dated 18.09.2014 passed by learned Additional District Judge No. 2, Bikaner, dismissing defendants/appellants'' Appeal No. 12/2008-Gaurishanker and Anr. Vs. Gopal Krishan, and affirming the judgment and decree dated 28.05.2008 passed by learned Addl. Civil Judge (Jr. Division) No. 2, Bikaner, whereby the suit filed by the respondent/plaintiff, being Civil Original Suit No. 425/2001-Gopal Krishan Vs. Gaurishanker and Anr., against the defendant for possession and permanent injunction, was decreed.

The plaintiff/respondent filed a suit for possession and permanent injunction with respect to suit property i.e. Plot No. 2 Block-B, Karninagar Colony, Bikaner, which was purchased by him from Sudharshan Kumari through a registered sale-deed, which was registered on 29.12.1970 with the Sub-Registrar Bikaner and possession was handed over to him. The defendants, who are residing in the adjacent plot, while dismantling the fencing encroached over the plot in question. The plaintiff thus filed the suit for possession and permanent injunction, which has been concurrently decreed in his favour.

The learned trial court after evaluating the evidence of the parties decreed the suit filed by the plaintiff/respondent vide judgment and decree dated 28.05.2008 in the following terms:-

The first appeal filed by the appellants/defendants against the judgment and decree of the learned trial court came to be dismissed vide judgment and decree dated 18.09.2014 in the following terms:-

Having heard the learned counsel for the parties and upon perusal of the judgments and decrees of the two courts below, this Court is satisfied that no substantial question of law arises in the present second appeal filed by the appellants/defendants. Both the courts below have concurrently decreed the suit filed by the respondent/plaintiff for possession of the plot in question. The learned court below has rightly decreed the suit filed by the respondent/plaintiff and there is no contra evidence on record to take a different view of the matter and, therefore, the present second appeal is liable to be dismissed. The appellants/defendants have claimed their ownership on the basis of adverse possession over the disputed Plot No. 2, and in the opinion of this Court the plea of adverse possession is weak plea, whereas the plaintiff/respondent had purchased the plot in question from its owner through a registered instrument dated 29.12.1970.

The Hon''ble Apex Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 also held that possession on the basis of title of property is always better claim as against the claim on the basis of adverse possession. The Hon''ble Supreme Court in a very detailed and researching judgment, 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 and 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, AIR 1991 SC 1346 : (1991) CriLJ 1521 : (1991) 1 Crimes 818 : (1991) 33 ECC 18 : (1992) 61 ELT 521 : (1991) 3 JT 17 : (1991) 1 SCALE 401 : (1991) 1 SCC 271 Supp : (1991) 1 SCR 712 : (1991) 2 UJ 43 , 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, AIR 2010 SC 3823 : (2011) 111 CLT 137 : (2010) 10 JT 1 : (2010) 10 SCALE 38 : (2010) 10 SCC 677 this Court reproduced often quoted quotation which reads as under:

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

..........The quest of truth continues........, also in this case.

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, (2011) 8 JT 90 : (2011) 3 RCR(Civil) 932 : (2011) 6 SCALE 677 : (2011) 8 SCC 249 : (2011) 8 SCR 992 : (2011) 5 UJ 2962 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:-

"97. 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."

Thus, strongly deprecating the holding over of possession by the persons like care-takers and persons with permissive possession, Chowkidars etc., the Hon''ble Apex Court allowed the plaintiff''s appeal in that case with exemplary cost of Rs. 50000/- and mesne profit of Rs. 1,00,000/- in respect of a residential house situated at Goa.

Recently, this Court in the case of Shri Ram Pathya Granthagar Samiti and Anr. Vs. Basant Kumar and Ors. (SBCSA No. 265/2011, decided on 09.12.2014) following the judgment of Hon''ble Apex Court in the case of State of Haryana Vs. Mukesh Kumar and Others, AIR 2012 SC 559 : (2012) 1 RCR(Civil) 17 : (2011) 11 SCALE 266 : (2011) 10 SCC 404 : (2011) 6 UJ 4099 : (2012) AIRSCW 276 and Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 , while dealing with a case of defendants claiming right over the land on the basis of adverse possession has dismissed the defendants'' appeal and held as under: -

"14. In the light of aforesaid settled legal position, which has been followed by this Court in the case of Babulal Vs. Kashi Devi, SBCFA No. 466/2009 decided on 01.11.2012, this Court is of the considered opinion that the substantial questions of law as framed by this Court are required to be answered in favour of respondents/plaintiffs and there is no force in the present second appeal of the appellants/defendants. Their plea of adverse possession is not only false to its core but is also mischievous. The appellant/defendant society which even came into existence on its registration in the year 1986 is banking upon the so-called adverse possession of the Sports Club, which according to it existed since 1968. The said Sports Club, the legal existence of which is not even before this Court and is not even a party before this Court, cannot be believed to have passed on the baton of adverse possession to the present appellant/defendant society. The illegality would be worse confounded if such version of the appellants/defendants was to be believed even for a moment. The courts below have found that the defendant/appellant No. 2, Raghunandan Sharma, was only 7 years of age when he claim to be in possession of the property in question and that too hostile and adverse to the knowledge of the true owners. His own statement demolishes the case of the defendants when he says that he even does not know who is the true owner of the land in question. If the main defendant DW.1 Raghunandan Sharma, is to say this and most of other witnesses according to their age given in the statements recorded by the learned trial court, were minor in the year 1968 or so, it is very clear that even the appellant/defendant No. 1, a registered society incorporated in the year 1986, was only a sham facade to claim the continued possession, whereas the defendant/appellant No. 2 and his likes, would continue to have enjoyment illegally over a valuable suit property belonging to the respondents/plaintiffs, whose forefathers were given "Patta" and which were supported by the entries in the Government record, namely, "Sawa-Bahi", on which the findings of facts about their title is based and the same cannot be put in question in the second appeal filed by the appellants/defendants.

Not only this, the plea of adverse possession even assuming for arguments'' sake while holding otherwise, could be an argument worth considering and the same is not even established by a threat bare reading of the evidence led by the defendants. The plaintiffs/respondents on the other hand have challenged the unauthorized possession and occupation of the suit property ever since 1968 if the statement of PW.3, namely, Shankerlal, when he objected to the holding of the Volleyball tournament at the suit property is to be believed, which the defendants sought to rely as if they held hostile possession adverse to the plaintiffs to the knowledge of the said PW.3, Shankerlal. The appellants/defendants before this Court are the society and Mr. Raghunandan. Since on their own showing that they could not have been in possession for more than 12 years and that too an adverse possession of the knowledge of the true owner since the present suit was filed in the year 1988 whereas the society came into existence in the year 1986 only, even this weak plea of adverse possession is not available to the defendants. That is why in the preamble part of this judgment, this Court has observed that the rank trespassers and persons claiming their possession on the basis of plea of adverse possession are a burden on the dockets of the Courts; and their success lies only in the length of litigation not on the merits of the case. Such appellants/deserves to be put down with iron hands of justice by imposition of exemplary costs so that it sets an example for other such persons, who are in unauthorized possession of the land belonging to others.

Therefore, following the Hon''ble Supreme Court in the case of Maria Margardia Sequeira Fernandes (supra) quoted above, the present second appeal of the appellants/defendants is dismissed with cost of Rs. 50,000/- to be paid by the defendants besides mesne profit as fixed by the court below to the plaintiffs/respondents. The appellants/defendants shall handover the peaceful and vacant possession of the suit premises to the respondents/plaintiffs within a period of two months from today, and if necessary, with police aid which may also be provided. The respondents/plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court, in case the appellants/defendants fail to handover the peaceful and vacant possession of the suit premises within a period of two months from today. A copy of this judgment be sent to the concerned parties forthwith."

Consequently, the present second appeal of the appellants/defendants is dismissed. The appellants/defendants shall handover the peaceful and vacant possession of the suit premises/plot of land to the respondent/plaintiff on or before 30.09.2015, and if necessary, with police aid which may also be provided. The appellants/defendants shall also pay mesne profit @ Rs. 1,000/- per month for the use and occupation of the suit premises. The respondent/plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court, in case the appellants/defendants fail to handover the peaceful and vacant possession of the suit premises within a period of two months from today and they will not create any third party interest in the suit property during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. A copy of this judgment be sent to the concerned parties forthwith.