Padam Singh vs Mohan Lal

Dr. Vineet Kothari, J.—The present first appeal No. 310/2005 under Section 96 of CPC has been filed by the defendant Padam Singh s/o Ranjeet Singh Rajpurohit against the respondent-plaintiff Mohan Lal s/o Shivnath Singh Rajpurohit being aggrieved by the judgment and decree of possession in respect of the suit property, a residential house situated at C-64, Shastri Nagar, a posh colony of Jodhpur. The decree of possession was given in Civil Original Suit No. 20/2005 (24/2001) - Mohan Lal v. Padam Singh on 28/5/2005 by the learned trial court of Addl. District Judge (Fast Track) No. 2, Jodhpur giving the following findings in favour of the plaintiff:--

The defendant Padam Singh s/o Ranjeet Singh Rajpurohit, whose father-in-law Shri Prithvi Raj was the real elder brother of plaintiff-Mohan Lal and who has expired and is now represented by his legal representatives Smt. Sua Devi, his wife and sons.

Learned counsel for the appellant-defendant, Mr. R.K. Thanvi, Sr. Advocate with Mr. Narendra Thanvi vehemently submitted that the said suit property, a residential house situated at C-64, Shastri Nagar, Jodhpur, was given to the defendant Padam Singh by way of oral gift by his father-in-law Prithvi Raj, who constructed a house on the said plot, which was allotted in favour of the plaintiff respondent Mohan Lal, who was working as Tehsildar in the year 1967, when the said plot was allotted to him. The said Prithvi Raj had given the suit property to various tenants during 1971-1989 and rent was also realised by Shri Prithvi Raj only. Learned counsel for the appellant also submitted that in the month of October, 1989 the said suit property was given to defendant - Padam Singh by way of oral gift and no written gift deed was registered or otherwise was executed by that time. The said Prithvi Raj Rajpurohit and his son Ghanshyam were examined by the learned court below as DW5 and DW 10 respectively and who have deposed in favour of the defendant-Padam Singh about the said oral gift and, therefore, the defendant cannot be said to be in permissive possession of the plaintiff since 1989 and the present suit filed by the plaintiff-Mohan Lal was wrongly decreed in favour of the plaintiff, though from the plaintiff''s side only one witness, the plaintiff himself was examined as P.W.1. Learned counsel for the appellant, Mr. R.K. Thanvi also submitted that said Shri Prithvi Raj Rajpurohit expired in 2006 and the defendant Padam Singh himself expired during the pendency of the present appeal in 2013. Various documentary evidences for construction cost having been made by his father-in-law Prithvi Raj was produced before the learned trial court. Learned counsel fairly conceded that the oral gift is not recognized by law and only under the Mohammedan Law such oral gift is permitted and there is no documentary evidence of such gift made in favour of the defendant Padam Singh.

Mr. R.K. Thanvi assisted by Mr. Narendra Thanvi appearing for the appellant-defendant, reading the statements of various defense witnesses adduced before the learned trial court urged that in view of the possession of the defendant having been proved on the basis of such gift deed, the plaintiff is not entitled to a decree of possession and the present first appeal of the defendant deserves to be allowed.

On the other hand, Mr. Govind Rajpurohit, learned counsel appearing for the respondent-plaintiff, who himself happens to be son of plaintiff-Mohan Lal Rajpurohit, vehemently urged that the father-in-law of defendant Padam Singh, Shri Prithvi Raj Rajpurohit was the elder brother of plaintiff Mohan Lal and he never did any Govt. job or other business, therefore, the construction over the said plot No. C-64 was raised at the cost of Mohan Lal himself, as he was working as Tehsildar in Revenue Department and in the month of October, 1989 only, being a close relative, brother of plaintiff with his consent gave permissive possession of the suit property to his son-in-law-defendant - Padam Singh in October, 1989 and after serving a notice in the year 2000 vide Ex.40 dated 19/12/2000, when there were civil and criminal proceedings between the two brothers, the plaintiff filed the present suit for possession of his own property, as having overwhelming evidence of ownership and title and the defendant was bound to handover the possession of the suit property to him and now to the legal representatives of Padam Singh, after his death in 2013. He emphasized that the defense of oral gift made in favour of defendant-Padam Singh is absolutely a false pretext and never any such oral gift of the immovable property was made, which is not even legally permissible mode of transfer of property, as also admitted by the other side and no such transfer of any right, title or interest in favour of the defendant Padam Singh can be inferred. On the contrary, permissive possession of the defendant is well proved by the plaintiff himself and upon revocation of the license to reside in the said house belonging to the plaintiff in the year 2000 the decree of possession was rightly passed in favour of the plaintiff and the same does not require any interference by this court. He also contended that the rent was being collected earlier by the elder brother of the plaintiff, Shri Prithvi Raj on his behalf only and that does not and never entitled him to either give away the said property by way of gift or otherwise. He also disputed the defense of adverse possession of the defendant. He relied upon the judgment of Hon''ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., and State of Haryana Vs. Mukesh Kumar and Others, .

Learned counsel for the respondent-plaintiff, Mr. Govind Rajpurohit also explained the context in which the father-in-law of defendant Padam Singh, Mr. Prithvi Raj and his son Ghanshyam gave the statement in favour of his son-in-law Padam Singh. While the plaintiff was only the Uncle-in-law of the defendant Padam Singh, DW.5 Prithvi Raj was his real father-in-law since defendant Padam Singh was married to Smt. Sua Devi, real daughter of Prithvi Raj, whereas, Ghanshyam s/o Prithvi Raj gave the statement in favour of defendant-Padam Singh because Ghanshyam was also married to Smt. Chandra, who is sister of his own brother-in-law (Jija ji) Shri Bhanwar Singh, who is husband of one of the daughters of Prithvi Raj and his sister, namely Smt. Saraswati Devi. Learned counsel for the respondent-plaintiff, Mr. Govind Rajpurohit submitted that said Shri Prithvi Raj had three daughters; Smt. Sua Devi married to defendant Padam Singh, Smt. Vidhya married to Bishan Singh and Smt. Saraswati married to Bhanwar Singh. Thus, Ghanshyam became brother-in-law (''Behnoi'') of his own sister by marrying her sister-in-law (Nanad) and in view of such close relation, the statements of the interested witnesses were rightly brushed aside by the learned trial court.

Having heard the learned counsels and upon the perusal of the judgment under appeal and considering the relevant evidence on record, this Court is of the considered opinion that the learned court below has painstakingly appreciated the relevant evidence in correct manner and has rightly arrived at the conclusion that the possession of defendant-Padam Singh over the suit property owned by the plaintiff Mohan Lal was only a permissive possession and the defense of oral gift made by his own father-in-law Shri Prithvi Raj, who was not the owner of the suit property, was a false plea. It is true that some of the defense witnesses examined by the court below supported the aforesaid defense of oral gift but since in law the theory of such oral gift of immovable property cannot be sustained, any such plea taken remains unsupported by law and, therefore, the defendant cannot be said to have any right, title or interest in the suit property and cannot retain its possession.

The Hon''ble Apex Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., 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, , 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"

.......... 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, 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." 10. 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.

In the case of State of Haryana Vs. Mukesh Kumar and Others, , deprecating the defence of adverse possession in such cases, 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." 14. In view of the settled legal position, this Court is of the considered opinion that the first appeal filed by the defendant Padam Singh has no force and the same is liable to be dismissed with costs. There is no contrary and reliable evidence in favour of the defendant to reverse the decree of possession granted in favour of the plaintiff.

Accordingly, the present first appeal of the defendant Padam Singh is dismissed with cost of Rs. 10,000/-, which will be paid to the plaintiff within three months.

CROSS APPEAL NO. 346/2005

The cross appeal No. 346/2005 - Mohan Lal v. Padam Singh has been filed for the limited purpose of seeking mesne profits from the date of filing suit i.e. 30/1/2001 till the date of decree i.e. 28/5/2005 and further till the actual possession of the suit property is handedover to the plaintiff, which has not been awarded by the learned trial court. Learned counsel for the appellant, Mr. Govind Rajpurohit submitted that under the interim orders of this Court in connected first appeal No. 310/2005 dated 10/8/2005, this Court granted the mesne profits @ Rs. 5000/- p.m. which was raised to Rs. 6000/- vide order dated 8/11/2012.

In view of the decision of this Court in favour of the plaintiff in the connected appeal aforesaid, upholding the decree of possession in favour of the plaintiff, this Court also finds that there is no reasonable justification in denying the mesne profits for the user of the suit property by the defendant for the aforesaid period from 30/1/2001 to 27/5/2005, which has not been awarded by the court below. Therefore, allowing this appeal of the plaintiff-Mohan Lal, it is directed that the defendant/legal representatives of the defendant shall pay the mesne profit at the rate of Rs. 5000/- p.m. for the aforesaid period 30/1/2001 to 27/5/2005 also to the respondent plaintiff.

The appellant defendants - L.Rs of Padam Singh shall hand over the peaceful and vacant possession of the suit property to the plaintiff within six months from today i.e. on or before 30/9/2015 and shall continue to pay mesne profit to the plaintiff at the rate of Rs. 6000/- p.m. by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiff. The defendant/legal representatives of defendant shall also clear the arrears of mesne profits for the period 30/1/2001 to 27/5/2005 @ Rs. 5,000/- per month within six months from today and in case the same is not paid within six months, the same shall bear interest @ 9% p.a. The defendant-tenant 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 and the same would be treated as void and such third party will also be bound by this decree. The appellant-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit property is not handed over or mesne profits are not paid to the respondent-plaintiff a period of six months from today i.e. on or before 30/9/2015, besides expeditious execution of the decree in normal course, the respondent-plaintiff or his successors shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the parties and learned trial court below forthwith.