Smt. Murti Devi and Others vs Smt. Veena Kundrai

Mehinder Singh Sullar, J.—The challenge in this appeal filed by Pritam Singh son of Raja Ram (since deceased), being represented by his legal representatives appellant-plaintiffs (hereinafter to be referred as ''the original plaintiff'') is to the judgment and decree dated 29.9.2007, by virtue of which, the trial Court has dismissed his suit and the judgment and decree dated 24.12.2009, vide which, the first Appellate Court has dismissed his appeal as well.

The matrix of the facts, culminating in the commencement, relevant for disposal of present appeal and emanating from the record, is that the original plaintiff filed the suit for a decree of declaration to the effect that he became owner and in possession by way of adverse possession, with a consequential relief of permanent injunction restraining Smt.Veena Kundrai wife of Nand Kishore Kundrai respondent-defendant (hereinafter to be referred as ''the defendant'') from interfering in his peaceful possession over the suit property.

The case set up by the original plaintiff, in brief, in so far as relevant, was that he purchased his plot measuring 32''.3'' X 60'', vide registered sale deed dated 4.11.1985 for a valuable consideration of Rs. 10,000/- from one Ram Karan son of Asha Ram. He raised its level by spending huge amount and constructed the boundary wall. Subsequently, he had also constructed two rooms, one shop, one verandah, one machine shed, one bath room and toilet over his plot. A hand pump was also installed. According to the original plaintiff, the defendant purchased the adjoining plot, vide registered sale deed dated 24.12.1984 from one Darshan Lal son of Lijja Ram. The plaintiff was stated to have also raised the level of the plot of the defendant and constructed the boundary wall over it.

Concisely, the plaintiff claimed that he was in possession of the adjoining plot in dispute of the defendant for the last more than 13 years and, thus he became its owner by way of adverse possession. On the basis of aforesaid allegations, the original plaintiff filed the suit for a decree of declaration and permanent injunction against the defendant in the manner described here-in-above.

The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi of the plaintiff, concealment of facts and estoppel etc. On merits, the defendant claimed that the sale deed of her plot measuring 726/3 square yards was registered on 27.12.1984. Immediately after the purchase, she raised the level of her plot by putting earth in it. The plaintiff has got no right, title or interest in it. Succinctly, the case of the defendant was that the plaintiff had encroached upon the disputed portion of the plot of the defendant in the year 1999 and has raised illegal structure over it. The illegal possession of the original plaintiff, who was immediate neighbour, over the disputed portion of the plot of the defendant for a small period of time, does not entitle him to claim ownership by way of adverse possession. She is rightful owner and in possession of her plot in question. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case.

The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleas.

Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the original plaintiff. The appeal filed by him through his LR was dismissed as well, by the first Appellate Court in the manner indicated here-in-above.

The LRs of original plaintiff/appellants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

Having heard the learned Counsel for the appellant-plaintiffs, having gone through the record with his valuable assistance and after considering the matter deeply, to my mind, there is no merit in the appeal.

Ex facie, the main argument of the learned Counsel that since the long possession of the original plaintiff matured into his ownership of the plot in dispute, so, the Courts below fell in grave error in dismissing his suit, outrightly deserves to be rejected.

As is evident from the record that the original plaintiff had purchased his plot, vide registered sale deed dated 4.11.1985, while the defendant has purchased adjoining plot, vide registered sale deed dated 27.12.1984. The plaintiff claimed that since he had raised the level and constructed the boundary wall over the disputed plot, so, he became its owner by way of adverse possession, which was completely denied by the defendant. In that eventuality, a heavy burden of proof was upon the plaintiff to prove his long, adverse and hostile possession, but he has miserably failed in this relevant connection. On the contrary, the defendant claimed that she has raised the level of her plot and the plaintiff encroached upon its some area in the year 1999. Although, there is no cogent evidence on record that the plaintiff was hostile and in adverse possession of the disputed plot of the defendant by virtue of ouster or abandonment, but assuming for the sake of argument (though not admitted), he encroached upon some portion of the disputed plot, then, his possession as encroacher/grabber will not entitle him to claim its ownership by way of adverse possession, in view of the observations of Hon''ble Apex Court in case Mandal Revenue Officer Vs. Goundla Venkaiah and Another, . Therefore, the contrary arguments of the learned Counsel for the appellants ''stricto sensu'' deserve to be and are hereby repelled under the present set of circumstances.

No meaningful argument has been raised by the learned Counsel for the appellant-plaintiffs to assail the findings of the Courts below. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiffs, in this relevant context, have already been duly considered and dealt with by the Courts below.

There is another aspect of the matter, which can be viewed from a different angle. The Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below recorded the well-articulated and well-reasoned concurrent findings of fact that the plaintiffs have failed to prove their ownership by way of adverse possession over the plot in dispute of the defendant. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred u/s 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned Counsel for the appellant-plaintiffs, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this relevant behalf.

Meaning thereby, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon''ble Supreme Court in Kashmir Singh v. Harnam Singh and Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749 so, no interference is warranted, in the impugned judgments and decrees of the Courts below as contemplated u/s 100 CPC, in the obtaining circumstances of the case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the appellant-plaintiffs.

In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed.