Kamlesh Kumari vs Jagan Nath

M.M. Kumar, J.—This is defendant''s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, `the Code'') challenging judgment and decreed dated 3.9.1982 passed by the learned Additional District Judge, Hoshiarpur reversing the findings of the Civil Judge in his judgment and decree dated 31.1.1981.

The facts which are necessary for deciding the issues raised in the instant appeal are that the plaintiffrespondents 1 and 2 filed a civil suit for permanent injunction restraining the defendantappellant as well as defendantrespondents 3 to 9 from interfering in their ownership and possession of the plot marked as `ABHCMN'' in the site plan Exhibit P3 and also restraining them from raising any construction thereon. In the alternative, the relief of possession of the aforementioned plot after removal of any unauthorised construction made thereon was also claimed. The averments made by the plaintiffrespondents 1 and 2 in the suit are that plaintiffrespondent No. 1 is owner in possession of house shown green in the site plan Exhibit P3 and plaintiffrespondent No. 2 is owner in possession of the plot shown blue and red in that site plan. The plot was purchased by plaintiffrespondent No. 1 from Gian Chand through a registered sale deed dated 8.4.1964 for a sum of Rs. 600/. The disputed site marked as `ABHLMN'' on the site plan Exhibit P3 is claimed to be owned by the plaintiff respondents. It is claimed that defendantrespondents 3 to 9 are the owners of some land towards the North and have no connection with the property in dispute. The construction of latrine towards the end of the property is claimed to have been made by the plaintiffrespondents 1 and 2. It is alleged that defendantrespondents 3 and 4 in connivance with defendantrespondents 4 to 9 threatened to trespass in the disputed plot illegally and by raising unauthorised construction upon the same. It has further been alleged that there was no sale of adjacent plot by defendantrespondents 3 and 4 and 6 to 9 to the defendantappellant.

The defendantappellant in her written statement took a preliminary objection that the site plan Exhibit P3 was incorrect and it was claimed that she is in possession of the disputed property on the basis of a registered sale deed dated 18.1.1978. According to her, the disputed property is covered by the aforementioned sale deeds and the plaintiffrespondents 1 and 2 have never been in possession of the same. It has been claimed that suit for permanent injunction was not maintainable and the plaintiffrespondents 1 and 2 have no interest in the property. The defendantappellant further claimed that she had constructed a boundary wall upon the plot purchased by her and there was no latrine on the disputed site constructed by the plaintiff respondents 1 and 2. The plea of bona fide purchaser for valuable consideration without notice of any of the plaintiffrespondents 1 and 2 was also raised claiming that she is entitled to protection under the law.

Defendantrespondents 3 to 7 also filed their written statements raising similar objections that the site plan Exhibit P3 was incorrect and further claiming that the property in dispute was part of joint property of defendantrespondents 5 to 9. They supported plea of defendantappellant by reiterating the fact that she has purchased the property from defendant respondent No. 5 for a valuable consideration and without notice. On the basis of the pleadings of the parties, the trial Court framed as many as 13 issues which read as under:

Whether the site plan filed by the plaintiff is correct ? OPP.

Whether the suit in the present form is maintainable ? OP.

Whether the suit is bad for misjoinder of parties and cause of action ? OPD.

Whether the defendant No. 2 has been unnecessarily impleaded ? OPD.

Whether the plaintiffs are owners in possession of house `ABKCDEFGH'' and plot `BHIJKM'' in dispute ? OPP.

Whether the house of plaintiff No. 1 is part of property No. BS1927 ? OPP.

Whether the plaintiffs have their latrine, door and water outlet towards the site in dispute ? OPP

Whether the plaintiffs are entitled to the injunction prayed for ? OPP.

Whether the plaintiffs are entitled to the possession of the suit property in the alternative ? OPP.

Whether the plaintiffs are estopped by their act and conduct from bringing this suit ? OPD.

Whether Kamlesh Rani is a bona fide purchaser for valuable consideration without notice of the rights of the plaintiffs, if so, its effect ? OPD.

Whether the defendants are entitled to special costs under Section 35A CPC. If so, how much ? OPD.

Relief.

The principal issue on which the whole controversy revolves is issue No. 5. The findings recorded by the trial Court on issue No. 5 as to whether the plaintiffrespondents 1 and 2 were owner in possession of the house marked `ABKCDEFGH'' and plot `BHLJKM'' are that the plaintiffrespondents were in possession of the house `ABKCDEFGH'' which is not disputed by the defendant appellant. However, with regard to possession of plot marked as `BHLJKM, it was found that they are not in possession of the aforementioned property because the plaintiffrespondents 1 and 2 in alternative have claimed relief of possession of the aforementioned plot.

On issue No. 1, the site plan of the plaintiffrespondents 1 and 2 was found to be correct and on issue No. 2, the simple suit for injunction was held to be maintainable. On issue No. 3, no illegality was found in the filing of the suit by the plaintiffrespondents 1 and 2 on the ground of misjoinder of parties and cause of action. Similarly, on issue No. 4 it was held that the defendantrespondent No. 4 was not unnecessarily impleaded because the plaintiffrespondents 1 and 2 had apprehended a threat to their actual possession from defendantrespondent No. 4. With regard to issue No. 6, the trial Court recorded the finding that the disputed strip `ABHLMN'' beyond the built up area does not form part of the evacuee No. BVIS1927. On issue No. 7, it was found that the version of the plaintiffrespondents 1 and 2 with regard to door, latrine and water outlet opening towards the disputed plot was acceptable. On issue No. 8 and 9, it was held that once on issue No. 5, the plaintiffrespondents 1 and 2 were found to be owner of the disputed property, no injunction could be granted in their favour and that they were not entitled to get possession of the disputed property. It has further been held that the right of petitioner has not matured into ownership by way of prescription. Under issue No. 10, the plea of estoppel by act and conduct of plaintiffrespondents 1 and 2 was upheld. Under issue No. 11, the defendantappellant was held to be the bonafide purchaser for valuable consideration and without notice of any right of the plaintiffrespondents 1 and 2. Under issue No. 12, it was held that no special costs could be awarded in favour of the defendantrespondents 3 to 9 or the defendantappellant. The suit of the plaintiff respondents 1 and 2 was dismissed.

The plaintiffrespondents 1 and 2 filed an appeal under Section 96 of the Code and the learned Additional District Judge, Hoshiarpur reversed the findings on issue No. 5 holding that the plaintiffrespondents 1 and 2 were the owners of the property shown by letters `ABHLMN'' by purchase and partly by adverse possession. Reliance in this regard was placed on the sale certificate Exhibit P2 showing that the property B659/23 was sold to Shri Braham Dass on 15.3.1957. Thereafter, this property was sold to Gian Chand vide Exhibit P5. It was Gian Chand who sold the property to plaintiff respondent No. 2 Smt. Krishna Devi vide sale deed dated 8.4.1964 (Exhibit P 4). It has also become clear that property originally was with the Rehabilitation Department and Braham Dass had purchased the same vide the sale certificate Exhibit P2. It is also made clear that this property in site plan Exhibit P3 is shown in blue and red. The learned Additional District Judge appreciated and examined in detail the oral as well as documentary evidence and recorded the following findings :

"Sale certificate in favour of Jagan Nath is dated 20.7.1958, in favour of Braham Dass is dated 16.3.1957. Braham Dass sold the property to Gian Chand vide sale deed Exhibit P5 dated 3.3.1958. Gian Chand sold the property to Smt. Krishna Devi vide sale deed Exhibit P4 dated 8.4.1964. It is in evidence that when Jagan Nath purchased property from the Rehabilitation Department vide sale certificate Exhibit P1 dated 13.4.1960 with effect from 20.7.1958, it was a house. Jagan Nath plaintiff has stated that ever since the purchase of this property by him, he is discharging the water of this house towards the site in dispute. He built a latrine in the site in dispute. He has a door opening in the site in dispute. Through that door after crossing the site in dispute, he reaches the main road. Jagan Nath plaintiff delineated the house purchased by him. He has stated that he purchased house shown by letters NMKDEFG from the Rehabilitation Department. He has thus stated that he has not purchased the site shown by letters ABHLMN in plan Exhibit P3. His wife, however, purchased property shown in green as well as in red in site plan Exhibit P3 from Gian Chand who was a purchaser from Braham Dass and Braham Dass was a purchaser from the Rehabilitation Department. It is true that Jagan Nath did not purchase property shown by letters ABMN in red colour in site plan Exhibit P3. He simply purchased house shown by letters NMKCDEFG. But the fact remains that his wife purchased the property shown in blue and in red in site plant Exhibit P3. Property ABMN and BMNL are in the same straight line. Jagan Nath and Krishna Devi had their door opening towards the site in dispute. They had a latrine at point QNLR. They used to have two outlets towards the site in dispute for the discharge of their water. Smt. Kamlesh Kumari came in the picture only in the year 1978 vide sale deed Exhibit D2 from counsel for the respondent Smt. Kamlesh Kumari that when Smt. Kamlesh Kumarirespondent raised construction on the spot purchased by her she submitted a plan Exhibit DW2/1 with Municipal Committee, Hoshiarpur and got the same approved. In plan Exhibit DW2/1, however, she did not show the property of the plaintiffs. So, plan Exhibit DW2/1 is of no consequence. Learned counsel for the appellants submitted that the plaintiffs have become owners by adverse possession in so far as site AMBN is concerned. They are owners through the purchase so far as site BMNL is concerned. The learned counsel for the respondents submitted that mere construction of latrine, discharging water and opening doors and passing through the site are acts which do not clothe one with possession of that site. In support of his argument, he drew my attention to Nawab Khan v. Abdulla Khan, AIR 1931 Lahore 489, wherein it was held that a Khurli is a trough for feeding cattle, made of mud. It is a structure of purely temporary character which usually breaks down when it rains. The erection of Khurli cannot give rise to a claim by adverse possession. User of such sort is neither intended to denote a claim of ownership of the land under it nor understood as denoting this. It is true that normally the mere erection of a latrine, discharging water, say not amount to an act adverse possession. But in the instant case, the facts are different. Jagan Nath purchased the house NMKDEFG in the year 1959 from the Rehabilitation Department. Ever since then he has been using site lying towards its North shown by letters ABMN in red as if it were his own. He has a door opening in it. He has a outlet for the discharge of water of his house in the site. His wife purchased the site BNLM in the year 1964. Latrine QHLR was constructed by them. Similarly, they erected doors in the house/plot opening in the site in dispute. They pass through the site in dispute to reach the main road. They discharge the water of the house in the site in dispute. Adverse possession is an act of animus. In the instant case, it is clear that the plaintiffs were laying claim of ownership to the site in dispute for the last more than 12 years. They were using site in dispute as it is was their own. Property purchased by Smt. Krishna Devi embraced within its ambit 8 width of the site beyond the wall NL shown in plan Exhibit P3. Simply because

Smt. Jamna Rani and others are recorded as owners in the revenue record to which there is a presumption of truth, it does not mean that they were in possession also. I, therefore, hold that the plaintiffs are owners of the property shown by letter ABHLMN partly by purchase and partly by adverse possession. There is no dispute about their ownership so far as house NMKDEFG and plot MLJK is concerned. Finding of the trial Court on this issue to the contrary is reversed." The findings on many issues were in favour of the plaintiffrespondents 1 and 2 and the same were affirmed by the learned Additional District Judge. However, findings on issues No. 7, 8 and 11 followed the findings as recorded under issued No. 5.

Mr. G.S. Jaiswal, learned counsel for the defendantappellant has argued that the defendantappellant has been in possession of the disputed property since 1978. According to learned counsel, she acquired the ownership of the disputed property by virtue of a registered sale deed dated 18.1.1978. The learned counsel has emphasised that no easementary rights by prescription would come into existence merely by opening windows or construction of the latrine. In support of his submission, learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Registered Pratinidhi Sabha v. Paras Ram, 1973 PLR 671 and argued that the doors, windows opened towards the disputed plot would not result into the ownership of the plot because such doors and windows are in the land of the plaintiffrespondents 1 and 2.

Mr. Sandeep Bansal, learned counsel for the plaintiffrespondents 1 and 2 has argued that the title of the plaintiffrespondents 1 and 2 has been established by adducing ample evidence on record by virtue of sale deed dated 8.4.1964 Exhibit P4. He has also made reference to the sale certificate Exhibit P2 issued by the Rehabilitation Department to Braham Dass who had sold the disputed property to Shri Gian Chand vide sale deed Exhibit P5. The plaintiffrespondent No. 2 had acquired the title by purchasing the same from Gian Chand vide sale deed Exhibit P4. The learned counsel has submitted that the evidence of construction of latrine discharging the waste water would not amount to adverse possession or lead to the right of easement by prescription. The learned counsel has drawn my attention to the categorical findings that since the plaintiffrespondent has purchased the house in the year 1959 from the Rehabilitation Department, he has been using the site lying towards North side shown by letters ABMN as if it was his own. There is a door opening in the site along with an outlet for the discharge of water of his house in the site itself. Further, plaintiff respondent No. 2 has purchased the site marked as BNLM in the year 1964 and the latrine has been constructed by them. They passed through the site in dispute to reach the main road. The learned counsel has further contended that the findings of fact recorded by the learned Additional District Judge cannot be gone into by this Court and no reappreciation of evidence to record to contrary finding is permissible.

After hearing the learned counsel for the parties at a considerable length and perusing the record, I have reached the conclusion that this appeal deserves to be dismissed because firstly, the finding with regard to adverse possession is a finding of fact and it is wellsettled that this Court while exercising jurisdiction under Section 100 of the Code, would not reverse those findings which are based on evidence. It cannot be concluded that a reasonable man would not record those findings as has been done by the learned lower Appellate Court. Moreover, there is ample evidence that the property surrounding the plot has been purchased by plaintiffrespondents 1 and 2 by registered sale deed. A part of the disputed property has been held to be in the ownership of the plaintiffrespondents 1 and 2 by virtue of adverse possession. It is wellsettled that the question of possession is a pure question of fact and it would not give rise to any question of law. Reliance in this regard can be placed on judgments of the Supreme Court in the cases of Panchugopal Barua v. Umesh Chandra Goswami, 1997(2) RCR (Civil) 1 (SC) : (1997) 4 SCC 713 and Ram Janam v. Radhakrishna Chaube, (1996) 8 SCC 277 and Mohan Lal v. Nihal Singh, 2002(1) RCR (Civil) 132 (SC) : (2001) 8 SCC 584. Therefore, no substantive questions of law would arise for consideration of this Court and the appeal is liable to be dismissed.

The argument that by opening a door in the plot of the defendant appellant, the plaintiffrespondent Nos. 1 and 2 would not acquire any proprietary right by prescription in the plot towards which the door is opened based on the Division Bench judgment of this Court in Paras Ram''s case (supra) has not impressed me because in that case a door had been opened in the wall by a neighbour towards the plot owned by another person. It was in these circumstances that the Division Bench held that by opening a door simply a person can not be permitted by his neighbour for ingress and outgress of his house because the owner can prevent him from using the door from next day. However, when the findings of fact recorded by the learned lower appellate Court are looked into, a different proposition appears. In the instant case, the door is opened and latrine has been constructed long time before the filing of the suit which is in any case is more than 12 years. Moreover, the disputed plot is being used by the plaintiffrespondents 1 and 2 for discharge of their waste water and for reaching to the road. It is not a simple case of opening a door towards the land of the neighbour. Therefore, I do not find that the judgment in Paras Ram''s case (supra) is attracted to the facts of the instant case.

In view of the above, this appeal fails and the same is dismissed. However, there shall be no order as to costs.