Shyam Singh Parihar @APPELLANT@Hash Smt Manju Bala

This Civil First Appeal under sec.96 CPC has been filed against the judgment and decree dated 01.11.2010 passed by learned Additional District

Judge (Fast Track) No.2, Udaipur in Civil Original Suit No.8/2008, whereby suit of the plaintiff for possession & injunction was dismissed.

Brief facts of the case are that on 20.12.2007 the plaintiff filed a suit for possession, injunction and damages for use and occupation against

defendants, inter alia, stating that plaintiff’s maternal grand-father (Nana) late Dhabhai Moti Lal and his two elder brothers Dhabhai Amar Singh

and Dhabhai Fateh Lal had a joint ancestral property, in joint possession, being the suit property situated as per neighbourhood mentioned in para 1 of

the plaint, commonly known as Dhabhaiji-ki-Haveli, Ganesh Ghati in Udaipur. It was further stated that the three brothers arrived at an oral partition

of aforesaid property, which was done in Samvat 1971 between above mentioned three brothers. Thereafter all three brothers started residing while

occupying their respective shares of the property.

Dhabhai Moti Lal died in Samvat 1981. On account of some dispute as to partition, after the death of plaintiff’s Nana (Dhabhai Moti Lalji), once

again the property was subjected to partition between plaintiff’s grand-mother Smt Rupa Bai being widow of Moti Lalji and two brothers- Dhabhai

Amar Singhji and Dhabhai Fateh Lalji, in Samvat 1988 and a map was prepared, depicting three different shares by three different colours.

The plaintiff also stated that said map was approved by the competent authority and thereafter through the Panchayat, so that no further dispute

remains as to partition. Plaintiff’s ‘Nani’ Smt Rupa Bai came to occupy the share of Dhabhai Moti Lalji in the property. This map was

appended to the plaint as Part-A, wherein the property depicted in Pink colour was belonging to Dhabhai Amar Singhji, property depicted in Purple

colour was belonging to plaintiff’s ‘Nani’ Smt Rupa Bai and the portion depicted in Yellow colour was belonging to Dhabhai Fateh Lalji.

The plaintiff further submitted that since his Nana-Nani i.e. Dhabhai Moti Lalji and Smt Rupa Bai had only one child- daughter namely Chatar

Kanwar, who was mother of the plaintiff, the portion of property as such came to be occupied by these three persons, comprised of 1/3rd portion of

Dhabhaiji-ki-Haveli, Ganesh Ghati, Udaipur. It was also stated that plaintiff’s mother Chatar Kanwar, being only daughter of Dhabhai Moti Lalji

and Smt Rupa Bai, got married to the then Hon’ble Mr Justice Kan Singh Parihar and since the plaintiff was the only son born out from said

wedlock, the plaintiff as such became owner of the property belonging to his mother and Nana-Nani by operation of law.

The plaintiff further stated that plaintiff’s own ancestral house being situated in Jodhpur and even ancestral house of plaintiff’s Nani Smt Rupa

Bai being situated in Jodhpur, the plaintiff used to reside in Jodhpur also and he used to travel along with his Nani and since the plaintiff was the only

surviving successor to Smt Rupa Bai, she had got deposited her valuable jewellery in a locker at Punjab National Bank, Jodhpur and she executed a

Will with respect to Purple portion of aforesaid Haveli in favour of plaintiff.

The plaintiff, thus, describing neighbourhood of said Purple colour portion out of total property mentioned in para 5 of the plaint, further stated that the

property is measuring 2005 sq. feet on ground floor, 2005 sq. feet on first floor, 2005 sq. feet on second floor and 1663 sq. feet on third floor,

comprising of numerous rooms, bathrooms, verandahs etc, as described in para 5 of the plaint.

The plaintiff also stated that his mother Chatar Kanwar died 69 years ago and therefore, the plaintiff being her only child, upbringing was carried out

by plaintiff’s Nani in aforesaid Haveli at Udaipur. After death of plaintiff’s Nani Smt Rupa Bai in the year 1965, the plaintiff inherited

aforesaid suit property, depicted in Purple colour.

It was further stated that during lifetime of his Nani, the plaintiff started his business in Mumbai and as such, he was not always available in Udaipur.

Therefore, the plaintiff while placing faith in family relationship, permitted the defendant who was son of Dhabhai Dhanna Lal, who himself was son

of Dhabhai Fateh Lalji. Consequently, the plaintiff and the defendants are successors for three respective shares in the Haveli of two real brothers

and the whole dispute involved in the case arose on account of breach of trust committed by the defendants so as to deprive the plaintiff of his right

and share in the suit property.

The plaintiff further submitted that after the death of Dhabhai Dhanna Lal, the defendant used to undertake all such works including recovery of rent

from tenants in the suit property and used to hand over the rent after recovering the same from tenants to the plaintiff until year 2005 whenver plaintiff

came there. However, thereafter, the defendants did not pay amount of rent to the plaintiff and when the plaintiff sent a notice in May 2006, the

defendants failed to reply the same. Therefore, the plaintiff himself came to Udaipur on 27.05.2006 and again on 01.07.2006 and 06.08.2006, with

same request but the defendants failed to pay any amount of rent to the plaintiff.

In fact, on 06.08.2006, the defendants tried to prevent the plaintiff from going into the suit property, so as to assert his ownership despite having none

and therefore, the plaintiff lodged an FIR on the same day i.e. 06.08.2006 at Police Station Ghantaghar, Udaipur. On 14.08.2006, the plaintiff met his

advocate and sent a legal notice, which was duly received and thereafter, the suit as aforementioned was filed so as to claim outstanding rent at the

rate of Rs.600/- per month from November 2005 till date of filing of the suit and amount of damages for use & occupation at the rate of Rs.5000/- per

month, along with possession and injunction.

The defendant filed written statement on 04.02.2008, stating ownership that he was adopted by Smt Rupa Bai in the year 1962 and therefore, his

father’s name was shown as Dhabhai Dhanna Lal is wrong because Smt Rupa Bai was widow of Dhabhai Moti Lalji. The defendant set up a

case that after death of Dhabhai Moti Lalji in Samvat 1981, Smt Rupa Bai adopted the defendant in accordance with their customs in the year 1962

and she used to live in the suit property along with defendant. The defendant pleaded that he is in possession of the suit property as sole owner since

1962 and even by virtue of adverse possession, the defendant has a better title than the plaintiff.

The defendant further denied the averments of plaint including contents of FIR lodged by plaintiff against him. Defendant also claimed that the plaintiff

has no right, title or interest in the suit property and he is the only surviving successor to the property of Smt Rupa Bai, having been adopted in

accordance with customs. He further claimed that the suit is time barred and it does not disclose any cause of action, it is undervalued and filed on

deficit court-fee. The defendant denied execution of Will by Smt Rupa Bai in favour of the plaintiff and claimed rejection of the suit with special cost.

On the basis of pleadings of the parties, the trial court framed 15 issues. The plaintiff in support of his case examined PW1 to PW4 and exhibited

documents Ex.1 to Ex.15. The defendant examined DW1 to DW3 and exhibited documents Ex.A1 to Ex.A4 in support of his case.

The trial court, after hearing arguments, vide judgment dated 01.11.2010 decided the issue regarding adverse possession against the plaintiff as also

issue regarding adoption against the defendant, so as to decide the issue No.3 regarding plaintiff’s ownership in favour of the plaintiff but ended up

deciding issue No.13 regarding limitation against the plaintiff and in favour of defendant; so as to dismiss the suit being barred by limitation. Being dis-

satisfied with the judgment dated 01.11.2010, the appellant-plaintiff has preferred this appeal on various grounds.

It was contended that the trial court has erred in law in deciding issue No.13 in favour of defendant and against the plaintiff. The issue No.13 was

with regard to limitation and before coming to patent illegality committed by the trial court while adjudicating issue No.13, it is worthwhile to mention

that the plaintiff had filed suit for possession, damages etc, while asserting his right in the suit property having come from his maternal grand-mother

Smt Rupa Bai on the basis of a Will. During the course of trial, only issues framed with the consent of both parties were issues No.1 to 3 and the

learned trial court while deciding said issues, though did not endorse plea regarding Will but proceeded to record specific finding that prima facie, the

suit property does vest in plaintiff because after the death of Rupa Bai, by application of Hindu Succession Act there remains no dispute regarding

plaintiff having become owner of her property.

The trial court also decided issue No.11 regarding adoption, as set up by defendant, against him so as to record finding that the defendant can not be

said to be owner of the suit property on the basis of said adoption. These findings are available in para 24 at internal page 19 of the judgment under

challenge.

It was further submitted that despite the findings recorded as aforesaid and despite the defendant having no right, title or interest in the suit property

that could be legally enforced for or against the plaintiff as a defence in the present suit, the learned trial court proceeded to examine the question of

limitation, which is very technical and pedantic approach, which has resulted in gross failure of justice.

It was also submitted that in the written statement filed by the defendant, only plea taken by the defendant with regard to limitation is that after the

death of plaintiff’s mother Smt Chatar Kanwar, the plaintiff is not entitled to file the suit and the same is time-barred. In contrast, plaintiff’s

case was that initially the defendant tendered the rent collected by him from tenants occupying the suit premises to the plaintiff but later on he stopped

doing so and continued despite repeated requests by the plaintiff, followed by notices and personal visits to Udaipur. The plaintiff has come with

specific case that the defendant paid him amount of rent after taking the same from the tenants uptil October 2005 but thereafter he failed to do so

and notices sent by the plaintiff were placed on record in support of the same. The plaintiff also placed on record FIR lodged by him against the

defendant when he tried to physically prevent the plaintiff from entering the suit property on 06.08.2006.

Consequently, going by defendant’s own stand of adverse possession, though the same was not found proved by the trial court, the same adverse

possession apparently became hostile and open against the plaintiff on or about 06.08.2008 and therefore, the cause of action to file suit for possession

and injunction arose only thereafter and thus, the plaintiff, after sending legal notice on 14.08.2006, filed the present suit within limitation thereafter.

The trial court despite having noted on internal page 29 of the judgment under challenge, that possession of the defendant has been in the nature of

permissive possession, on the basis of permission given by the plaintiff, misdirected itself so as to assume that the same amounts to admission of

defendant’s possession in the suit property.

The trial court has further committed a clear error of fact in assuming that simply because the plaintiff had knowledge about other tenants occupying

the property with permission of the defendant, the assurance given by the defendant on their behalf could not have been believed by the plaintiff. The

trial court failed to bear in mind the precise case set up by plaintiff in the plaint itself in paras 6 to 8 of the plaint, has fell into conjectures and surmises

so as to pick fragments of pleadings and statements from different places so as to conclude as aforesaid. The findings of the trial court is vitiated by

error of law and fact, apart from being contrary to the record as a whole and the same deserves to be set aside.

It was also contended that the trial court has erred in dismissing the suit of plaintiff as being barred by limitation by proceeding on entirely erroneous

assumption that the plaintiff has admitted regarding defendant’s possession in the suit property since 1978. It was submitted that in the first

instance, it has never been an admission on the part of plaintiff regarding possession of the defendant since 1978 or otherwise. The trial court on one

hand considered that the plaintiff had given permission to the defendant and that possession of the defendant is on account of permission of the

plaintiff yet in the subsequent portion of the same para, the learned trial court misinterpreted the same as admission of plaintiff regarding possession of

defendant since 1978. The error committed by the learned trial court in this regard is amply visible if statements of the plaintiff, specially

crossexamination on internal para 8 is seen wherein it was clearly mentioned that lock of the premises was opened at the instance of the plaintiff and

keys thereafter were given to defendant’s father.

The learned trial court has further contradicted its finding by recording on one hand that the plaintiff had admitted possession of the defendant since

1978 yet on the other hand, learned trial court has recorded a finding that the plaintiff has been unable to specify from what time the defendant has

occupied the suit property. It was further submitted that so far as documents including First Information Report and notice preceding to filing of the

suit, the learned trial court failed to assign any reason as to why said documents do not reflect the actual sequence of events which resulted in filing of

the suit. Apparently, the learned trial court has proceeded on a mistaken premise being admission of the plaintiff regarding defendant’s possession,

despite there being absolutely no such pleading or proof on record. Consequently, the learned trial court has failed to adjudicate the precise question

framed in issue No.13 and findings of the trial court on said issue is vitiated and the same deserves to be set aside.

It was further submitted that the limitation to file present suit for possession, injunction and damages could have started only when the defendant

proceeded to assert his hostile adverse possession or to assert his independent right, to the detriment of plaintiff’s right and not prior thereto. In the

present case, the learned trial court failed to appreciate that the parties are related to each other and the plaintiff being engaged in business in Mumbai,

had no option but to trust his family members so far as the suit property situated in Udaipur is concerned. Consequently, appreciation of evidence as

done by the learned trial court becomes vitiated precisely for this reason. Learned trial court while dismissing the suit has referred to findings on all

issues yet the finding on issue No.13, being issue of limitation, is bereft of findings on other issues including the issue where defendant has claimed title

to the property on the basis of adoption and the same has not been found proved by the trial court. Therefore, the findings of the trial court, apart from

being erroneous and also contradictory, require re-appreciation by this Court.

No other issues were raised before this Court.

On 01.08.2018, this Court before hearing arguments of the appellant for disposal of the appeal passed following order:

“In the present appeal on 19.10.2016, no one appeared on behalf of the respondent and this Court granted last opportunity to the respondent and it

was further directed that if no one will appear on behalf of the respondent, then arguments of only appearing party will be heard and on the next date

again no one appeared for the respondent. On 01.12.2016 again no one has appeared on behalf of the respondent. On 12.10.2017 after hearing

learned counsel for the parties, the matter was kept part heard. Later again on 23.10.2017, 06.11.2017 and 09.11.2017, counsel for the parties sought

adjournment. On 14.03.2018 learned counsel for the parties submitted that there is a chance of amicable settlement between the parties, therefore,

some time may be granted. But no such settlement took place between the parties. On 11.04.2018 again none remained present for the respondent

and learned counsel for the appellant submitted that there is no chance for amicable settlement between the parties. Then again 25.04.2018,

09.05.2018 adjournment was sought by respondent and again on 23.05.2018 none remained present for the respondent. On 04.07.2018 and 11.07.2018

again the matter was adjourned.

On 25.07.2018 the matter was adjourned on behalf of the respondent and the matter was ordered to be listed on 01.08.2018. Today again learned

counsel appearing on behalf of respondent pleads no instructions and further submits that the arguing counsel Mr. Falgun Buch is out of country.

Sufficient time opportunity has been given to respondent for their arguments.

Heard learned counsel for the appellant. Judgment reserved.â€​

Heard learned counsel for the appellant and perused the judgment under appeal as also record of the case.

So far as question of limitation to file present suit for possession, injunction and damages is concerned, the limitation would have started only when the

defendant started asserting his hostile adverse possession, detriment to the rights, title & interest of the plaintiff in the suit property and not prior

thereto. The appellant in support of his contentions, brought attention of this Court towards statement of DW1 Yuvraj Singh, who in the

crossexamination stated that it is wrong to say that any dispute between him and the plaintiff arose with respect to possession of the suit property. He

further admitted that the amount of rent, which he received from tenants, has not been shown anywhere. In the present case, the burden to prove

issue relating to limitation was on defendant but the trial court shifted the burden on the plaintiff and decided the issue.

When defendant DW1 Yuvraj Singh in his cross-examination had admitted that â€" ;g xyr gS fd esjs o oknh ds chp fookn tk;nkn ds dCts dks ysdj gqvk

gks- This shows that before the date of filing of the suit there was no dispute regarding possession of the suit property but in the year 2006 when

plaintiff claimed possession of the suit property then defendant refused to give possession and started showing himself as owner. When the written

statement was filed on behalf of defendant for first time in the year 2008, this fact was disclosed that he is claiming ownership on the basis of adoption

deed. On the basis of pleadings and evidence placed on record, it is established that before year 2006 there was no dispute regarding possession of

suit property.

In the present case, the plaintiff filed suit in the year 2007, just after 2006 when dispute regarding possession of the suit property arose. The plaintiff in

his pleadings and evidence, stated about permissive possession of the defendant. It is to be noted that it is proved that the plaintiff is the only owner of

the disputed property after death of Rupa Bai and it was further held that while deciding issue No.12 that the defendant was not proved to be owner

of the disputed property from the year 1962 and thereby decided the issue No.12 against the defendant. It was also held while deciding issue No.11

that the defendant failed to establish that he was adopted by Rupa Bai in the year 1962.

While considering over all evidence placed on record, there is no evidence from which it can be inferred that there was dispute with regard to

possession of the disputed property before 2006. Prior to year 2006 the defendant was having permissive possession of the disputed property. After

2006, when the dispute arose regarding possession of the disputed property, the plaintiff immediately filed suit in the year 2007. From the facts and

evidence, it can not be said that the suit was barred by limitation. The learned trial court failed to properly appreciate the evidence placed on record

and decided the issue No.13 wrongly and dismissed the suit erroneously. The suit was filed well within limitation as per clause 65 of the Limitation

Act, limitation for filing a suit for possession is 12 years. In view of this, the appeal deserves to be allowed.

In the result, the appeal is allowed and the judgment dated 01.11.2010 passed in Civil Suit No.08/2008 {Shyam Singh Parihar v. Yuvraj Singh} is set

aside. The suit of the plaintiff for possession, permanent and damages is decreed with cost against the respondent-defendants. The appellant-plaintiff

is entitled to recover possession of the suit property from respondentdefendants and permanent injunction is granted in favour of the plaintiff and

against the respondents.