R.S.A.No. 3276 of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No. 3276 of 2003
Date of Decision : July 27, 2009
Balbir Kaur and others ...Appellants
Versus
Harjinder Singh and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. M.L.Sagger, Sr. Advocate, with
Mr. Anant Bir Singh, Advocate,
for the appellants.
Mr. G.P.S.Bal, Advocate,
for respondent Nos.2 and 4.
HEMANT GUPTA, J.
This order shall dispose of RSA Nos.3269 of 2003, 3270 of
2003 and 3276 of 2003 in respect of same property i.e. house No.369/8,
Central Town, Jalandhar.
RSA No.3269 of 2003 arises out of suit for mandatory
injunction filed by the respondents claiming possession from the
appellant as a licencee; RSA No.3270 of 2003 arises out of suit for
permanent injunction filed by the respondents herein, restraining the
defendant-appellants from forcibly and illegally occupying the portion
shown red in the site plan; and RSA No.3276 of 2003 arises out of a suit
filed by the appellant for declaration that he is in possession of double
storey House No.369/8, Central Town, Jalandhar as a owner. This suit
for declaration filed by the appellant is earliest in point of time, therefore,
the facts are taken from the said suit.
R.S.A.No. 3276 of 2003 2
The plaintiff-appellant has claimed a decree of declaration to
the effect that he is owner in possession of the house in dispute. It is
alleged that the land in dispute was owned by defendant No.3. In the
year 1963, the plaintiff raised some construction over it by spending
funds from his own pocket, wen he was posted at Delhi. He authorized
one of his relation Mehnga Singh to carry out construction for which the
funds flowed from the pocket of the plaintiff. Mehnga Singh raised
skelton construction in the year 1963. Mehnga Singh applied for
electricity meter in his own name. In the year 1965, the plaintiff moved
bag and baggage to Jalandhar. Defendant No.3 asserted his title over the
suit land under-neath the suit property as well as over the moderate
construction over it in the year 1965. The plaintiff did not yield to the
assertion of title by defendant No.3. However, the plaintiff asserts that he
allowed defendant No.3 to reside in the suit property as a licencee for few
months. In the year 1966, the plaintiff terminated the license of
defendant No.3 and ousted him completely from the suit property and at
that time, a very conservative construction was in existence over the plot.
After ouster of defendant No.3, the plaintiff asserted his hostile title over
the suit property. In the year 1967, he raised extensive construction over
the suit property and converted into a palatial double storey building.
The plaintiff thereafter carried out renovation from time to time as well.
The plaintiff asserts that he has let out the portion of property from time
to time and portion shown in green colour was let out to defendant No.2
in the year 1990. The plaintiff asserts himself to be in adverse possession
to the knowledge of defendant No.3 openly, peaceful and continuously
R.S.A.No. 3276 of 2003 3
for the period of more than 12 years and, thus, claimed ownership over
the suit property.
Defendant No.2 in the present suit, is the plaintiff in the other
two suits. It was asserted that plaintiff is not in possession of the entire
property, but is in possession of only two rooms, store and kitchen on the
first floor and that his possession is that of licencee under the owner. It
was asserted that the house was owned by Hardeep Singh S/o Puran
Singh, who sold the same to defendant No.2 and his wife vide four
registered sale deeds dated 25.1.1995. Hardeep Singh delivered the
possession of the same to defendant No.2 and his wife except two rooms,
store and kitchen on the first floor. The plaintiff is a close near relation
of previous owner, being maternal uncle. It was defendant No.3, who
permitted the plaintiff to use the said portion i.e. two rooms, store and
kitchen as a licencee and to look after the same, as the owner was
residing abroad. It was asserted that since the licence/permission granted
to the defendant, stands revoked, the plaintiff has no right or interest in
the property. It was asserted that defendant No.2 has already filed a suit
for mandatory injunction to claim the vacant possession of the property.
It was denied that it was plaintiff, who raised construction in the year
1963 or that the plaintiff authorized Mehnga Singh to raise construction.
It was asserted that the entire amount for construction was spent by
Hardeep Singh. The assertion of the plaintiff that defendant No.2 was a
tenant of the plaintiff was denied. It was asserted that Subodh Kumar son
of defendant No.2 was the tenant under defendant No.3.
In Civil Suit No.5 of 1996 i.e. the suit for declaration filed by
R.S.A.No. 3276 of 2003 4
the appellants, it was stated to the following effect ;
“2. That the land underneath the house was owned by
defendant No.3. The plaintiff in the year 1963 raised some
construction over it by spending funds from his own pocket. As
in the year 1963 the plaintiff was posted at Delhi where he was
working as Engineer with Ansel Construction Company
(formerly known as C.Loyal & Co.) 8-6/6, WEA Karol Bagh,
Delhi, therefore, he authorised one of his relations Sh. Mehnga
Singh to carry out the construction for which funds flowed
from the pocket of the plaintiff. The said Mehnga Singh
entrusted with the said task raised a skeletal construction in
the year 1963. The plaintiff moved bag and baggage to
Jalandhar in the year 1965 where since the period of his
relocation, he is enlisted as a contractor in Military
Engineering Service, Jalandhar Cantt. As initially
construction was raised under the aegis of Mehnga Singh,
therefore, Mehnga Singh applied for the electricity meter in his
own name.
3. That the defendant No.3 in the year 1965 tried to assert his
title over the land underneath the suit property as well as the
moderate construction over it. The plaintiff did not yield to
assertion of title by defendant No.3. However, he allowed the
defendant No.3 to reside in suit property as a licencee for a
few months.
4. That the plaintiff in the year 1966 terminated the licence of
R.S.A.No. 3276 of 2003 5defendant No.3 and ousted him completely from the suit
property which at that time had a very conserative
construction over it.
5. That after the ouster of defendant No.3, the plaintiff asserted
his hostiletitle over the suit property. He in the year 1967
raised extensive construction over the suit property and
converted it into a paletial double storey building within the
full view and sight of defendant No.3. The plaintiff after that
carried out renovations from time to time. He applied for
telephone connection in the suit property which stands in the
name of Eastern Construction Company headed solely by
S.Sarup Singh, plaintiff.”
The learned trial Court dismissed the suit for declaration filed
by the appellant and decreed the other suits filed by the respondents
herein. It was held that the origin and possession of the plaintiff over the
suit house was with the permission of the original owner in the year 1963.
The plaintiff claims adverse possession since the year 1966. It was held
that if a person is in permissive possession, he is bound to deliver the
possession and thereafter he could claim adverse possession. Permissive
possession can never be adverse for howsoever long period, the person
may be in possession. It was further found that neither it has been alleged
nor proved by the plaintiff that he ever delivered or surrendered
possession to defendant No.3 and thereafter occupied the disputed
property claiming his adverse possession. It was also found that the
plaintiff was occupying a portion of suit property as licencee under the
R.S.A.No. 3276 of 2003 6
original owner and since the original owner has transferred title in favour
of defendant No.2 and his wife, therefore, the said vendees are entitled to
possession of the entire house, even from the plaintiff after revocation of
the licence. With the said findings, the suit filed by the appellant was
dismissed.
The learned first Appellate Court decided all the three appeals
arising from three suits together and dismissed the same. The learned
first Appellate Court has examined the respective contentions of the
parties and returned a finding that the possession of the appellant was
permissive in the beginning and he could not set up adverse possession in
himself without surrender of possession to the true owner. It was also
found that the appellant has contradicted himself in respect of the timing
of construction, which makes him unreliable witness. The Court has
taken into consideration letter Ex.PX, which shows concealment of
material facts from the Court. The appellant has admitted that he use to
reside in Delhi in the year 1963 and was in Delhi in 1964 as well. The
appellant has not led any cogent evidence in respect of raising of
construction. The appellant could not depose that who had supplied the
water supply or whether he got the map approved from the Municipal
Corporation. The Court concluded that at the most the possession of the
appellant is permissive possession and cannot be considered as adverse.
Learned counsel for the appellants has vehemently argued the
house in dispute was constructed by the appellant Sarup Singh on a land,
which is owned by defendant No.3. Once the construction has been
raised by the appellant, therefore, even if it is without any title or interest,
R.S.A.No. 3276 of 2003 7
the appellant cannot be ordered to be dispossessed therefrom without
paying compensation for the superstructure. Reliance is placed upon a
judgment of this Court in Food Corporation of India and others Vs.
Dayal Singh 1991(2) All India Land Laws Reporter 260. It is also
argued that suit for mandatory injunction is not maintainable as Hardeep
Singh is not proved to be owner of the superstructure, in which the
appellant is in possession.
I have heard learned counsel for the parties at some length, but
do not find any merit in the present appeals.
The appellant has claimed declaration setting up adverse
possession in himself. It is admitted by him that the land is owned by
Hardeep Singh, who is none else, but his sister’s son. It is also admitted
that he initially entered into possession of property in dispute on the
express permission of the owner. The plaintiff was asserted that he has
raised some construction in the year 1963, but extensive construction was
raised in the year 1967. However, while appearing as a witness, he has
deposed that the construction was raised from the year 1963 to 1965.
Thus, he has contradicted himself with his pleadings, which show
untruthfulness of the statement of the plaintiff.
The relationship of parties and material contradictions in the
pleadings and in the evidence are sufficient to infer that the appellant was
a licencee. There is no cogent and reliable evidence led by the appellant
to prove skelton or extensive construction raised in the year 1963 or
1967. On the other hand, letter Ex.PX written by Harjinder Singh to the
appellant on 27.5.1988, shows cordial relations between the appellant and
R.S.A.No. 3276 of 2003 8
defendant No.1 as also defendant No.3. In fact, defendant No.1 in the
aforesaid letter has communicated to the appellant that he has discussed
the issue regarding construction of toilet, bathroom, and kitchen down-
stairs at the house in dispute with Kuldeep and Hardeep-defendant No.3.
It was communicated to the appellant that it is agreed that the appellant
should get an Architect to draw out the plans and send them to him with
the estimates. It is also communicated that expenditure of any kind is
concerned, the appellant should let them know and they will arrange for
the finance. There is categorical direction that the rent money is not to be
touched. The appellant has admitted the receipt of the said letter.
However, he has stated that the original letter has been lost by his Lawyer
in Delhi. The said letter shows that the expenses of construction of toilet,
bathroom and kitchen was to be met by defendant Nos.1 and 3. There
was clear direction that the rent money is not to be touched. It only
means that the appellant was always working on behalf of his nephews
defendant Nos.1 and 3. The plea of adverse possession has been
introduced just to defeat the rights of purchaser from Hardeep Singh,
which is not only false, but a dishonest plea.
The argument that the appellant is entitled to compensation for
the superstructure raised is again misconceived. As a matter of fact, the
finding recorded by both the Courts below is against the appellant in
respect of raising of construction. Letter Ex.PX also supports the finding
recorded that the construction was being raised at the direction and at the
instance of true owners. Therefore, the argument that the appellant is
entitled to compensation of the superstructure is misconceived.
R.S.A.No. 3276 of 2003 9
Even otherwise, the judgment referred to by the learned counsel
for the appellant is not helpful for the proposition argued. In the
aforesaid case, the learned first Appellate Court negated the plea of
adverse possession raised by the defendant. The decree for possession
was not granted in view of the principles of acquiescence. In the present
case, there is no plea of acquiescence raised by the appellant nor the
appellant is proved to have raised construction. The appellant has found
to be licencee. As licencee, any improvement carried out by licencee
even if proved cannot be made basis for defeating the right of possession
by the licensor as such construction by the licencee is at his own peril. In
view of the said fact, I do not find any merit in the first argument raised
by the learned counsel for the appellant.
The argument that the suit for mandatory injunction is not
maintainable by the vendee is against not sustainable. The vendee has
stepped into the shoes of his vendor Hardeep Singh. As per the findings
recorded, the appellant is a licencee under Hardeep Singh. Therefore, the
rights and interest of Hardeep Singh stand transferred to the plaintiff-
respondents and, thus, it was open to the plaintiff-respondents to seek
possession by filing a suit for mandatory injunction against the licencee.
In view thereof, I do not find that any substantial question of
law arises for consideration of this Court in second appeal.
Dismissed.
July 27, 2009 (HEMANT GUPTA) Vimal JUDGE