Raman Kumar and Another vs Punjab Wakf Board

A.N. Jindal, J.—The suit filed by the Punjab Wakf Board plaintiff-respondent (herein referred as, ''the plaintiff'') for possession of the property (a shop) bearing Khasra No. 2 and 3, min measuring 19.5 square yards attached with Takia Zahra Peer Outside Hall Gate, Amritsar, along with mesne profits at the rate of Rs. 4000/- per month, was partly decreed by passing a decree for ejectment of the premises with mesne profits @ Rs. 2000/- per month for the period from 15.9.1994 till the delivery of the vacant physical possession of the property and the appellant-defendants (herein referred as, ''the defendants'') were restrained from alienating the suit property in any manner. Hence this revision petition. The facts, in brief, are that the plaintiff claimed itself to be the owner of the suit property and sought ejectment of the defendants/petitioners along with mesne profits at the rate of Rs. 4000/- per month. The defendants contested the cause by filing written statement, wherein, they took some preliminary objections, inter alia, that the suit is barred by limitation; suit is bad for mis-joinder and non-joinder of necessary parties. They have further submitted that they are in possession of the suit property since 11.1.1969 and they themselves raised the construction over the same. It was further submitted that the defendant No. 1 is running his business under the name of style of M/s Raman Seed Store and has also got the sale tax number from the Excise and Taxation Department and also got the Central Sales Tax number since the year 1989-90. He has further claimed adverse possession over the suit property.

No replication was filed. From the pleadings of the parties, the following issues were framed:-

Whether the suit is within limitation? OPP

Whether suit is maintainable? OPP

Whether the suit is barred by estoppel? OPD

Whether the suit is filed by competent person? OPP

Whether the defendant is liable to be ejected from the suit property? OPP

Whether defendant has become owner of the suit property by way of adverse possession? OPD

6A. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 6B Whether the suit is bad for mis-joinder of necessary parties? OPD

Relief.

Both the parties led evidence. The trial court decreed the suit of the plaintiff.

The main plank of the argument raised by the learned counsel for the appellants- defendants is that the documents Ex.P2 and Ex.P3, relating to the lease of the property has not been proved according to law, therefore, the plaintiff has failed to prove the lease deed purported to have been executed by the defendants in favour of the plaintiff.

In this regard, it may be observed that, admittedly, the area of the property is 19.5 square yards attached with Takiya Zahra Peer situated Outside Hall Gate, Amritsar. Admittedly, the property is in possession of the defendants. The plaintiff has claimed that the defendant is the tenant over the property, whereas, the defendants have claimed adverse possession. In order to prove the lease deed, the plaintiff examined PW-1 Mohd. Ismail Zubairy, its Estate Officer who tendered his sworn affidavit Ex.PW1/A and he was cross examined qua the documents of lease Ex.P2 and Ex.P3 and attested copy of thelease order Ex.P4, site plan Ex.P5 and Ex.P6, duly signed by the defendants, attested copy of the notice dated 6.7.2005 (Ex.P7), attested copies of the Gazette Notifications dated 9.1.1971, 3.10.1971, 19.5.1976 and 17.3.2006 Ex. P8, Ex.P15 to Ex.P17 respectively, copy of legal notice dated 24.2.2006 (Ex.P9), original postal receipts Ex.P10 and Ex.P11, AD receipts Ex.P12 and Ex.P13, site plan Ex.P14 and jamabandies for the year 2005-06 regarding khasra No. 2 and 3 Ex.P18 and Ex.P19. The suit was filed under the permission/resolution/ delegation of powers by the plaintiff. A resolution was passed to delegate the powers to the Estate Officers, but his name is found mentioned in the said resolution. It is also not disputed that the suit property is a double storey and the construction was made by the defendant in the year around 2003-04. A notice was issued to the defendant No. 1 that he had raised the construction illegally and should remove the same. The rent claimed from the defendants was @ Rs. 4000/- per month i.e. w.e.f. 1.10.2004, as per approval of the plaintiff and as per the lease dated 28.3.2005 approved by the plaintiff in favour of the defendants but they refused to receive the lease order despite repeated demands and written letters dated 6.7.2005. The defendants came in possession of the suit property in the year 2003-04. The plaintiff maintained the record of all the properties owned by it and the ownership of the plaintiff over the premises in question is entered in the revenue record. In order to corroborate the statement of PW1, the plaintiff examined PW-2 Basit Khan, Rent Controller, who tendered his sworn affidavit Ex.PW2/A.

No rebuttal evidence to the aforesaid witnesses has been led in order to prove that the property is in his possession since 1969. Mere long possession does not prove that the defendant is in adverse possession of the same. In order to prove that a person is in adverse possession, he has to establish his continuous hostile peaceful and uninterrupted possession since the date he claims adverse possession. He has to prove the actual date when he entered into possession and his hostile possession was to the knowledge of the person claiming. In this case, the plaintiff has been successful in proving the existence of the lease in favour of the defendants.

In order to defy the claim of the defendant regarding adverse possession, during the course of the arguments, the plaintiff has placed on record copy of the affidavit of Raman Kumar Ex.P1 and application Ex.P2 dated 7.12.2004 which contained the clear admission of the defendants that the Wakf Board is the owner of the suit property. The relevant extract of para No. 1 and 6 of the affidavit read as under :-

That there is a Wakf property with room on 1st floor bearing Kh. No. 2 & 3 Min measuring 19.05 Sq. Yds. attached with Takia Zahara Peer situated at old Sabji Mandi, Outside Hall Gate, Amritsar which is vested in the Punjab Wakf Board, Chandigarh.

2 to 5 xx xx xx

That we are ready to pay monthly rent @ Rs. 300/- P.M. w.e.f. 1/10/2004 to the Punjab Wakf Board.

7 to 11 xx xx xx

All this goes to show that the defendant has admitted the ownership of the plaintiff and do not claim adverse possession over the suit property. Consequently, the fact remains that the defendants are in unauthorized possession of the suit property and are bound to vacate the same.

No such illegality or irregularity has been found with the impugned judgment. All the issues appear to have been properly decided on appreciation of the evidence in the right perspective.

Day in and day out, to my experience, the frivolous claims are set up by the unauthorized occupants to defy the claims of the rightful owners to gain time, resultantly under the garb to establish such false and frivolous pleas, years pass and the owners remained deprived of the enjoyment of their property as such it would not be inappropriate if the petitioners could be directed to vacate the premises within three months and to pay mesne profits for use and occupation of the premises in dispute. Accordingly, this petition is dismissed with the direction that the petitioners shall vacate the premises within three months from today and pay a sum of Rs. 2 lacs on account of unauthorized occupancy of the premises in dispute.