Mohinder Singh vs Gurbax Singh (Since Deceased) Through His Lrs

Rakesh Kainthla, J

The present appeal is directed against the judgment & decree passed by the learned District Judge, Una vide which the appeal filed by the respondents (legal representatives of the original defendant before the learned Trial Court) was allowed and the judgment and decree passed by learned Civil Judge (Junior Division), Court No. 1, Amb, District Una, H.P. were set aside.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking the possession by removal of supper structure/Malwa over the land comprised in Khewat No. 99 min, Khatouni No. 222 min, Khasra No. 2282/1 measuring 0-00-92 Hectare situated in Up-Mohal Kaloh, Mouja Kaloh, Tehsil Amb, District Una, H.P as entered in the copy of Jamabandi for the year 1995-1996. (hereinafter referred to as the suit land). It was asserted that the plaintiff was a co-sharer in possession of the suit land. The defendant took forcible possession of the suit land in April 2000 without any right, title or interest. The plaintiff requested the defendant to deliver the possession, but in vain. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability & cause of action, the plaintiff having not come to the Court with clean hands and the suit being bad for non-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the suit land is owned and possessed by the plaintiff along with other co-sharers, but the same is in exclusive hissedari possession of the father of the plaintiff-Jaspal Singh. The plaintiff, his brother and mother are in exclusive hissedari possession of the suit land after the death of Jaspal Singh. The suit land adjoins the land of the defendant. The defendant raised his residential Abadi over Khasra No. 2282 in the presence of the plaintiff, his father and other co-sharers. He is in peaceful possession of the Abadi constructed over part of the suit land bearing Khasra No. 2282. The old Khasra Number of adjoining land of the defendants were 3413, 3414 and 3416. The plaintiff concealed these facts from the Court. Hence, it was prayed that the suit be dismissed.

No replication was filed.

The following issues were framed by the learned Trial Court on 06.01.2003:-

Whether the suit land was owned and possessed by the plaintiff along with other co-sharers as alleged? OPP

Whether defendant has dispossessed plaintiff and other co-sharers from the suit land in an illegal manner in the month of April, 2000? OPP

Whether plaintiff is entitled for decree of possession? OPP

Whether suit is not maintainable in present form? OPD

Whether plaintiff has no cause of action to file suit? OPD

Whether suit is bad for non-joinder of necessary parties? OPD

Relief.

The parties were called upon to produce the evidence and the plaintiff examined Satya Devi- his Power of Attorney (PW-1) and Roshan Lal (PW-2). The defendant examined himself (DW-1).

Learned Trial Court held that the plaintiff is the co-owner of the suit land. The version of the plaintiff was made probable by the report of demarcation and the oral evidence. The defendant had no right to retain the possession, hence, the learned Trial Court answered issues no. 1 to 3 in the affirmative, issues no. 4 to 6 in the negative and decreed the suit.

Being aggrieved from the judgment and decree passed by the learned Trial Court, the legal representative of the original defendant filed an appeal before the learned District Judge, Una. Learned First Appellate Court held that the Power of Attorney of the plaintiff failed to identify the boundaries of the suit land. Roshan Lal (PW-2) admitted that he is in possession of the suit land. Hence, the plea that the defendant is in possession was not proved. It was not specified when the construction was raised. The plea of the defendant that construction was raised in the year 1987-1988 appeared to be highly probable and the plaintiff had acquiesced in the construction; therefore, he could not be held entitled to the relief of possession by way of demolition. Learned First Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned Trial Court.

Being aggrieved and dissatisfied with the judgment and decree passed by the learned First Appellate Court, the present appeal has been filed asserting that the learned First Appellate Court erred in appreciating the evidence led before it. No sufficient reasons were given for setting aside the well-reasoned judgment of the learned Trial Court. The plaintiff and his witnesses specifically stated that the possession was taken in April 2000. There was no requirement to specify the structures constructed on the suit land. The plaintiff being the owner is entitled to the possession. Therefore, it was prayed that the present appeal be allowed and judgment and decree passed by the learned trial Court be set aside.

The Appeal was admitted on the following substantial questions of law on 19.07.2006:

Whether the learned First Appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its right perspective, thereby vitiating the impugned judgment and decree?

Whether the learned First Appellate Court misread and misappreciated the statements of PW-1 and PW-2 and further Ext. P-2 and in the result the impugned judgment as passed stand vitiated?

Whether the impugned judgment and decree passed by the learned District Judge is the result of misreading and misappreciation of the fact that true owner having laid suit for possession against the stranger and said suit having been dismissed by the learned First Appellate Court below on conjectures, thereby vitiating the impugned judgment and decree.?

I have heard Sh. Ajay Sharma, learned Senior Advocate assisted by Mr. Ajay Thakur, learned counsel for the appellant-plaintiff and Sh. Aman Sood learned counsel for the respondents-defendants.

Sh. Ajay Sharma, learned Senior Counsel for the appellant-plaintiff submitted that the plaintiff is the owner of the suit land. The defendant claimed to be in possession of the suit land but failed to show any right to retain the possession. The defendant had not taken the plea of adverse possession and the plaintiff being the co-owner is entitled to the vacant possession. Learned First Appellate Court erred in dismissing the suit. The reasons assigned by the learned First Appellate Court are not cogent; therefore, he prayed that the present appeal be allowed and judgment and decree passed by the learned First Appellate Court be set aside.

Sh. Aman Sood, learned counsel for the defendant-respondent supported the judgment and decree passed by the learned First Appellate Court and submitted that the plaintiff had failed to prove the encroachment made by the defendant. In the alternative, the construction was raised in the presence of the plaintiff and other co-sharers and learned First Appellate Court had rightly held that the suit is barred by the principle of acquiescence; hence, he prayed that the appeal be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

Substantial Question of Law nos.1 to 3:-

These questions of law are interconnected and are being taken together for convenience.

The defendant specifically stated in Para 1 of the written statement on merits that suit land is owned and possessed by the plaintiff along with other co-sharers. It was coming in Hissedari possession of the father of the plaintiff and after him in the share of the plaintiff, his brother and mother. The defendant admitted in the opening lines of his cross-examination that plaintiff Mahinder Singh etc. are the owners of the suit land. The copy of the Jamabandi (Ext. P-1) shows Bhisam Singh and Jaspal Singh as the co-owners. An entry has been recorded in the column of remarks that as per Mutation No. 144, the estate of Jaspal Singh was mutated in the name of Joginder, plaintiff Mahinder Singh, Kulwinder Singh and Jai Dai. An entry in the copy of Jamabandi carries with it a presumption of assumption of correctness and the defendant has not disputed the same; therefore, the plaintiff has to be treated as the co-owner of the suit land.

The defendant specifically stated in Para 3 of the written statement that he raised his residential Abadi over Khasra No.2282 in the presence of the plaintiff, his father and co-sharers after taking demarcation in the year 1987. He reiterated this plea in his proof affidavit by saying that he is in possession of Khasra No. 2282 and 2281. He had constructed his house in the year 1987 in the presence of the plaintiff, his father and co-sharers in Khasra No. 2282. However, he stated in his cross-examination that he has no concern with the suit land. He also stated that the suit land is bearing Khasra No. 2282/1 and he is not in possession of the same. He had not constructed anything on the suit land. He had constructed the house in his own number in the year 1987-88.

Therefore, the plea taken by the defendant that he had raised construction in the years 1987-88 in the presence of the plaintiff, his father and co-sharers has been abandoned by him by specifically saying that he has not constructed anything on Khasra No. 2282/1. Hence, the learned First Appellate Court erred in holding that the plaintiff had acquiesced in the construction of the defendant and was not entitled to the relief of the possession.

In any case, it was laid down by Hon’ble High Court of Punjab and Haryana in Mohinder Pal Versus Omwati 2014 (174) Punjab Law Reporter 447 that the principle of acquiescence can be applied in a case of mandatory injunction; however, the same will not apply in a case of recovery of possession. It was observed:-

“4. Another principle, which was invoked while allowing the appeal filed by the plaintiff, which is the subject of an appeal in RSA no. 2920 of 1984 is that the plaintiff was guilty of acquiescence. The principle of acquiescence is invoked in cases where relief of mandatory injunction is sought against a defendant to do an act on his (defendant's) own property, which invades the plaintiff’s right. A typical illustration could be of a construction made by the defendant in his own property and over which, the plaintiff has right of way. If the plaintiff fetters his own exercise of the right by allowing the defendant to do an act, he would be barred by acquiescence in such a case. The case has been dealt with by the Supreme Court in Krothapalli Satyanarayana v. Koganti Ramaiah and others, 1984 (2) SCC 439 which examines the issue of acquiescence of a party, who had allowed her own right of way to be trampled by the defendant's construction. The situation would be different where a right to immovable property of the plaintiff is sought to be invaded by the defendant trespassing into the property and putting up construction. If the suit is filed for recovery of possession and claims as an ancillary relief, a mandatory injunction for removal, then acquiescence cannot come in the way. The plaintiff shall be entitled to recover possession of the whole property. The situation, however, would be different if the suit is not for recovery of possession, but the suit is only for mandatory injunction. A mandatory injunction by itself is in the genre of equitable relief, which is discretionary. The Court may exercise its discretion not to grant the said relief and merely grant relief of compensation. This distinction is brought out in Nelson's Law of Injunction, 7th edition, Volume-I, pages 220 to 223. The text paraphrases two judgments, one in Evin Shauk Wa v. U. Pa Nyun 5 ILR(Rang) 404 and another in the judgment of this Court in Municipal Committee, Nakodar v. Sadha Ram ILR 1957 (P&H) 638. If in a case where the plaintiff does not ask for possession but asks only for mandatory injunction directing the defendant to demolish the construction, the Court may well take into account the factor that so long as the plaintiff does not ask for possession of his property, he may lose his right by acquiescence. Where an encroacher puts up construction on another's land not being entitled to the superstructure, the plaintiff can be given full relief by a simple decree for possession, which would mean directing demolition of the building, even without a prayer for any mandatory injunction against the defendant. If there is also a relief of mandatory injunction in such a suit for possession, it is merely for the purpose of giving an opportunity to the trespasser to remove the superstructure put up by him and to avail himself an opportunity to mitigate his own loss. In the decision of this Court in Municipal Committee, Nakodar, the suit was for a declaration of title in which a prayer for an injunction had been sought as auxiliary to the relief of declaration. The Court said that it was not a suit to which Section 54 of the old Specific Relief Act will apply. This corresponds to Section 38 of the Specific Relief Act, 1963. The learned Judge pointed out that such was not a case in which the Court is free to uphold the title and yet in the exercise of its discretion refuse to grant the relief of injunction and the relief of injunction cannot be claimed as a substantive relief independently of the declaration sought.

Nelson's Law of Injunction, at page 220, para 30, sets out the law thus:

...The fact that the property involved is of small value or is of no practical use to the plaintiff is wholly irrelevant to the grant of relief to the plaintiff. Equally irrelevant is any consideration as to whether the defendant would be inconvenienced or subjected to any hardship by the grant of a decree in ejectment against him. It is a simple case of trespass or encroachment on the plaintiff's property and the defendant is entitled to no consideration while granting relief to the plaintiff with reference to the wrongs committed by the defendant. In such a case, if the defendant instead of simply occupying the land after his encroachment and trespass puts upon a construction, can his position be in any way better? If it is to be held that simply because the defendant, in addition to committing trespasser encroachment, has put up construction on the land and because of such construction, there is a discretion left in the Court either to grant a decree for possession after directing the defendant to demolish the construction or to award damages instead of directing such demolition, that will be placing such a person in a better position for having aggravated his wrong by putting up a construction. In such a situation there can be no equitable consideration in favour of the defendant and as a matter of fact, all notions of equity and justice will be opposed to any such contention...

IV. Relief of recovery cannot be denied if the title is established but the relief of mandatory injunction is always discretionary.

In the first category of the suit, where the plaintiff's suit for possession was complaining of trespass committed by the defendant, it can never be stated that the plaintiff could be adequately compensated by only relief of damages in the second category of cases where merely the relief of mandatory injunction is asked, the discretion is available for the Court to grant such relief or not. In the former case, acquiescence is not relevant to deny the relief of recovery of possession. It may be applied only for providing compensation for a defendant, who has suffered damage from putting up construction. In the latter case, acquiescence will disable a person from securing equitable relief. In such an event, the Court will be competent to substitute the relief for damages against the defendant in favour of the plaintiff as compensation for the right lost.

The principle, which I have elicited has a statutory basis as well. In a suit for recovery of possession based on the title, Article 65 of the Limitation Act provides for 12 years from the time when the defendant's possession becomes adverse. If the defendant's construction has come about by way of trespass, a suit for declaration and recovery of vacant possession cannot be defeated by the theory of acquiescence. The defendant shall not be without remedy. Section 51 of the Transfer of Property Act allows for compensation to be claimed by a person, who puts up construction bona fide believing the property belonged to him. The suit for recovery of possession that is decreed can apply Section 51 and secure to a defendant against whom possession is sought to compensate the defendant for the construction put up by him. However, in a mere suit for mandatory injunction, there is no provision for limitation but it shall be granted only in the manner contemplated under Section 39 of the Specific Relief Act if such relief were to be on a stand-alone basis. This qualification becomes essential, for, this is not a mere suit for mandatory injunction. The plaintiff has sought recovery of possession through the court as an alternative prayer in both suits.” (Emphasis supplied)

Thus, the learned First Appellate Court erred in dismissing the appeal on the ground that the plaintiff was barred by the principle of acquiescence from filing the present suit.

It was submitted by Sh. Aman Sood learned counsel for the respondent-defendants that the plaintiff has not impleaded other co-shares and the suit is bad for the non-joinder of all the co-sharers. This submission cannot be accepted. It was laid down by this Court in Dharam Singh Versus Jagdish Chand AIR 2005 (HP) 10 that a suit for possession can be filed by a co-sharer against the trespasser without impleading other co-sharers. It was observed:

“5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co-sharers is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Patna 1 and it was held that such a suit by a co-sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.

A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.R.'s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co-sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. In view of the said ratio, the learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff.”

Therefore, the suit is not bad for non-joinder of necessary parties.

It was submitted that the construction was raised in the year 1987 and the suit was filed in the year 2002; hence, the same was barred by limitation. This plea cannot be accepted. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that a suit based on the title where a plea of adverse possession had not been raised could not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. It was observed:-

“10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of immovable property or any interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiff

It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.

It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.

It is equally well settled that mere possession for howsoever long a period is not enough to claim title in as much as the possession has to be adverse.

In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on the title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.

Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession.”

Similarly, it was held in Indira v. Arumugam, (1998) 1 SCC 614 that a suit based on the title cannot be defeated on the ground of limitation unless the plea of adverse possession is established. It was observed:-

“4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:

Description of the suit:- For possession of immovable property or any interest therein based on the title

Period of limitation:- Twelve years

Time from which period begins to run:- When the possession of the defendant becomes adverse to the plaintiff.

It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed.”

Similar is the judgment of this Court in Shishi Ram v. Megh Chand, 2012 SCC OnLine HP 5133 = AIR 2013 HP 65, wherein it was held:-

“12. It is settled law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession/ roved must be adequate in continuity, publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.

…………………..

The learned first Appellate Court thus rightly concluded that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken a plea of adverse possession to defend his title, in that eventuality of the defendant, 's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumugam AIR 1999 SC 1549.”

In the present case, the defendant has not taken any plea of adverse possession; therefore, the submission that the suit was barred by limitation cannot be accepted.

Therefore, the learned First Appellate Court erred in ignoring the pleadings of the parties and the admission made by the defendant regarding the title of the plaintiff. The defendant had failed to prove any right in himself to retain the possession and such a suit could not have been dismissed without the plea of the adverse possession. Hence, the learned First Appellate Court erred in allowing the appeal and dismissing the suit. These substantial questions of law are answered accordingly.

Final Order:

In view of the above, the present appeal is allowed and judgment and decree passed by the learned First Appellate Court are set aside while those passed by the learned trial Court are restored.

Pending miscellaneous application(s), if any, also stand(s) disposed of.