Kalu Ram and another vs Balbir Singh and others

G.S. Sandhawalia, J.—This shall dispose of RSA No. 3180 of 2011 Kalu Ram and another vs. Balbir Singh and others and COCP No. 138 of 2012 Kalu Ram and another vs. Balbir Singh and others as the COCP is filed against the interim orders passed in RSA No. 3180 of 2011. The present appeal has been filed by defendants no. 1 and 3, who are aggrieved against the suit for mandatory injunction being decreed in favour of the plaintiffs whereby they were directed to hand over the vacant possession of the suit property.

The case of the plaintiffs was that the defendants are liable to vacate the land comprising in khasra No. 550(2-16) in the Revenue Estate of Village Shutrana consisting of three kacha rooms and six pucca rooms on account of the fact that they had raised construction and defendant-Kalu Ram was allowed to reside with his family in one kacha room and one pacca room and similarly the other three defendants also had been allowed to reside in the rooms as licensees. It was contended that the license was revoked three months ago and the defendants were requested to vacate the premises and having failed to do so, the defendants were in unauthorized possession and were liable to be ejected.

The suit was contested by the defendants by filing written statement in which they took various preliminary objections including maintainability of the suit, concealment of true facts, non-producing of proper site plan. The defendants also took the plea of adverse possession and that they had entered in possession and raised construction over the respective houses and even electric connection had been got issued by Ram Divaya defendant, by Sat Pal in the name of Shakuntala Devi and the defendants were old residents of the village and not in possession as licensees. It was contended that the land underneath the house of the defendants was lying vacant and the defendants had taken forcible possession and constructed the house and nobody had objected. Thus they were entitled to continue in possession and they had become owners by way of adverse possession. It was thus pleaded that the plaintiffs had wrongly claimed the construction upon the land under the possession of the defendants and the defendant-Lalji had spend thousands of rupees in constructing the shed for the cattle and the boundary wall and the construction was raised in January 1990. Defendant-Sat Pal had raised the construction in April 1990 as the earlier construction was uprooted due to floods in the village whereas Ram Divaya had raised construction in December 1989 whereas Kalu Ram had raised one pacca room and one kacha room in December 1991.

On the basis of the pleadings, the trial Court framed the following issues:

Whether the plaintiffs are owners of the suit property? OPP.

Whether the possession of the defendants over the suit property is unauthorized? OPP.

Whether the plaintiffs are entitled to mandatory injunction, as prayed for? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the suit is barred under Order 7 Rule 11 CPC? OPD

Whether the plaintiffs have not come to the Court with clean hands? If so, its effect? OPD.

Whether the possession of the defendants over the suit property is continuous, peaceful for the period of more than 12 years? If so, its effect? OPD.

Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD

Relief.

The plaintiffs examined as many as three witnesses including the draftsman Deepak Sharma as PW-3 whereas the defendants only examined Ram Divaya as DW-1 since Parkash Chand did not turn up for cross examination and the evidence of the defendants was closed vide order dated 26.09.2007. The trial Court examined revenue record of the land in question comprising in Khasra No. 550 (2-16) and came to the conclusion that it was gair mumkin abadi and the defendants had denied that the suit property fell in the said khasra number. It was noticed that the defendants had failed to prove any document of title of the suit property and they had taken the plea of adverse possession but failed to substantiate as to when they came in possession and when the nature of possession turned hostile. The details of date, month and year were absent and accordingly it was held that it was not proved that the possession had been converted into adverse possession since no witness of the neighborhood had been examined and the sole statement of Ram Divaya was not sufficient to prove the nature of possession. The installation of the electric meter or the water connection had not been proved by examining any witness and accordingly, it was held that the plaintiffs were owners of the suit property and the defendants were mere licensees whose license had been revoked and, therefore, the plaintiffs were entitled for the possession of the land in dispute. The right of the licensee to remain in possession was taken into consideration and accordingly, it was held that the plaintiffs were entitled for mandatory injunction. It was accordingly held that the suit was maintainable and the plaint was not liable to be rejected on the ground that the site plan had not been produced along with the plaint and the suit was decreed vide judgment and decree dated 05.11.2007.

The defendants filed an appeal before the District Judge, Patiala, which was dismissed on 25.02.2011 and resultantly, the present regular second appeal has been filed.

Counsel for the appellants has contended that the Courts below have wrongly decreed the suit. The plaintiffs did not have any ownership and mere reliance upon the revenue record was not correct. It is also contended that the suit for mandatory injunction did not lie and the Lower Appellate court did not decide the issues separately and, therefore, prejudice has been caused to the appellants. For this submission regarding the ownership of the plaintiffs and reliance upon the revenue record, reliance is placed upon Suraj Bhan and Others Vs. Financial Commissioner and Others, and Jattu Ram Vs. Hakam Singh and others, . The said submission is not acceptable on the ground that the defendants themselves have taken the plea of adverse possession. The plea of adverse possession is a double edged sword since by virtue of the said plea, the defendants admitted the ownership of the plaintiffs. The plea of being in hostile possession can only be taken against the owners of the land itself and once the defendants had opted to take the said plea, they cannot turn around and say that the plaintiffs were not the owners of the property. This Court in Jagat Singh vs. Sri Kishan Dass 2008 (2) RCR (Civil) 106 has held that the plea of adverse possession presuppose the title over the suit land. The relevant paragraphs read as under:-

The question that the plaintiff has not established the identity of the suit land or the property cannot be identified, is not borne out from the record. The defendant-appellants have raised a plea of adverse possession. Once a plea of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, the argument that the property is not identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that in fructuous decree could not be passed, is not made out in view of the plea of adverse possession over the suit land raised by the appellants.

The argument that the plaintiff has seen the defendants raising construction and thus estopped to claim possession, is not tenable. The appellants have asserted title on the basis of purchase. However, neither the alleged vendor nor their title nor any document of title has been produced. In the absence of any document of title in their favour, the argument that the defendants are in possession of the suit land as owners and that they have a legal right to retain it, is not made out. Once the defendants have raised a plea of adverse possession, the plaintiff is presumed to be owner of the suit land. Under Article 65 of the Limitation Act, 1963, the defendants have to allege and prove that their possession over the suit land is hostile to the knowledge of the true owners for a continuous period of 12 years. In fact, there is no plea or evidence that the defendants entered into possession of the suit land to the knowledge of the plaintiff. The possession was not hostile at the time of inception. The possession, howsoever long, does not confer any right or title in favour of the defendants. Therefore, the plea of estoppel cannot be raised as the defendants could defeat the claim of the plaintiff only on proof of adverse possession.

Resultantly, the judgments of Suraj Bhan''s case (supra) and Jattu Ram''s case (supra) will not come to the aid of the appellants in view of the weapon of adverse possession wielded by them. The revenue entries admittedly being in favour of the plaintiffs raises a presumption of truth which is to be rebutted and the defendants themselves took the plea of adverse possession and thus admitted the ownership of the plaintiffs and now cannot turn around and say that the revenue entries are only fiscal in nature and give no title.

Even otherwise, the plaintiffs had taken a specific plea that the land fell in khasra No. 550 measuring 2 kanals 16 marlas and the revenue record jamabandi Ex. P-3 showed that the plaintiffs were exclusive owners of the said khasra and, therefore, they were entitled for the possession of the land in dispute. The submission of the maintainability of the suit was also taken into consideration by the Lower Appellate Court and it was held that the defendants were mere licensees in the property which had been terminated three months prior to the filing of the suit and the defendants had been given license in the year 2003. The witness himself had stated that the plaintiffs were earlier residing in the said area before possession was given to the defendants. The Hon''ble Supreme Court of India in Joseph Severance and others vs. Benny Mathew and others, 2005 (3) SCC 781 has held that if a suit for mandatory injunction is filed immediately after the termination of license, the same is maintainable and it is not necessary to file a suit for possession. The relevant para of the said judgment reads as under:-

There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate Court the stress was on something else i.e. the effect of Section 60(b) of the Indian Easements Act, 1882 (in short the `Easements Act'') and the alleged non-maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the license. Licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the license the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee''s occupation does not become hostile possession or the possession of a trespasser the moment the license comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable.

In the present case, it has come on record that the license was given in the year 2003 and the suit was filed on 04.08.2004 after the license having been terminated 3 months earlier. In such circumstances, the suit was also maintainable in view of the binding precedent of the Hon''ble Apex Court.

The defendants, as noticed above in their written statement, had taken the plea that the land was in their ownership on the basis of adverse possession but in evidence stated that it was public land and they were in possession since partition of the country but admittedly, nothing has been brought on record except the sole statement of one of the defendants.

The Courts have concurrently came to the conclusion that the possession also as to when it was obtained and when it became adverse or hostile has not been established and, therefore, rightly came to the conclusion that the relationship between the parties was of a licensee and licenser and the suit for mandatory injunction was thus maintainable and the affixation of Court fees, as pleaded by the defendants, was not required since it was not a suit for possession.

The last submission of the counsel that the issues were not decided separately is mere irregularity by the Lower Appellate Court. Perusal of the judgment shows goes on to show that the Lower Appellate Court has taken into consideration all the submissions made by the counsel and dealt with them comprehensively. This Court in Sher Singh and others vs. Siri Kishan and others, 2010 (4) CCC 459 has held that not giving a finding under the issues is a mere irregularity and not such an illegality which would warrant interference. Counsel for the appellant has placed reliance upon Bachna Ram vs. Bikha Ram and others, 2010 (3) PLR 179, to contend that where pacca structures are constructed, then the license becomes irrevocable and similarly reliance is also placed upon Babu Fazal Haq and Others Vs. Lala Data Ram and Another, . There is no dispute regarding the said judgment but in the present case, neither it has been proved on record that the defendants had raised any construction rather it is the case of the plaintiffs that the construction had been raised by them and possession had been given to the defendants. In the absence of any evidence on record that the defendants had raised such construction, the said judgments are of no help. Since the plea of adverse possession has been taken, then the said submission is not acceptable in a regular second appeal now that they were licensees which is against the case set out below and in view of the concurrent findings of the Courts below and the defence taken by the defendants, there is no scope for interference and the present regular second appeal is accordingly dismissed in the absence of any substantial question of law arising for consideration. The judgments and decrees of the Courts below are hereby upheld