RSA No. 4371 of 2006 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 23.7. 2009
RSA No. 4371 of 2006
Baj Singh ......Appellant
Versus
Kulbir Singh and others .......Respondents
RSA No. 4372 of 2006
Baj Singh ......Appellant
Versus
Kulbir Singh and others .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. V.K.Jain, Sr. Advocate with
Mr.Rajeev Sheokand, Advocate
for the appellant.
Mr.Arun Palli, Senior Advocate with
Mr.Parminder Singh, Advocate,
for the respondents.
****
SABINA, J.
This order shall dispose of RSA Nos. 4371 and 4372 of
2006 as these have arisen out of same suit/counter claim.
Plaintiff Baj Singh filed a suit for permanent injunction
inter alia restraining the defendants from interfering in the land in
RSA No. 4371 of 2006 2
dispute. The suit of the plaintiff was dismissed and counter claim of
the defendants was allowed by the Civil Judge (Jr.Divn.) Amritsar
vide judgment and decree dated 26.10.1998. In appeal, the said
judgment and decree were upheld by the Additional District Judge
(Adhoc), Amritsar vide judgment and decree dated 5.10.1996.
Hence, the present appeal by the plaintiff.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 1 to 4 of its judgment, are as under:-
“1. The facts of the case briefly stated are that Baj
Singh, appellant/plaintiff filed suit for permanent injunction
for restraining the defendants from interfering in his
possession over the property in dispute.
It was alleged in the plaint that the plaintiff is in
possession of the land in dispute measuring 15 K- 12 M.
detailed in the head note of the plaint and he is cultivating
the said land as prospective vendee under the agreement
to sell dated 12.8.1975 executed by the defendants and
their deceased mother Jatto @ Jind Kaur in his favour
followed by another agreement to sell dated 17.6.76
through which period was extended for execution of the
Sale Deed. Sale Deed was to be executed by the
defendant after getting permission from the competent
authority under Urban Land Ceiling and Regulation Act,
1976. The defendants have not been able to get
RSA No. 4371 of 2006 3permission from the competent authority, as per
agreement. Smt. Jatto had died and the defendants are
his legal representatives. The defendants are threatening
to take forcible possession of the land with the help of
their husband and relations. They tried to interfere in his
possession over the suit land. He asked the defendants
time and again not to take law in their own hands, but
they refused. As such, he is entitled to permanent
injunction restraining the defendants from interfering in
his possession, forcibly on the land in dispute.
2. The suit was contested by the defendants. In their
written statement they took preliminary objections that
the suit is not maintainable. Plaintiff had not come to
Court with clean hands and has concealed facts. The
possession of the plaintiff is permissive and on behalf
of the owners and as such, he is not entitled to
injunction, plaintiff has got no locus standi to file the
suit, the suit is not maintainable in the present form, the
correct Khasra Nos. of the property have not been
mentioned and that entries in the revenue record are
wrong. Regarding merits, it was stated that the
possession of the plaintiff is under agreement to sell
executed by the defendant in favour of the plaintiff. It
was admitted that the plaintiff was in possession under
RSA No. 4371 of 2006 4agreement to sell. The defendants pleaded that the
Sale Deed was to be executed after getting permission
from the competent authority and they actually applied
for the permission but permission was refused by the
competent authority and as such, Sale Deed could not
be executed as per agreement. They have been
demanding possession from the plaintiff and he had
been promising to give the same. The plaintiff in
November, 1994 refused to give possession. It was
denied by the defendants that they have tried to take
forcibly possession of the property or they intended to
take forcible possession of the land.
3. Defendants filed counter claim for recovery of
possession, pleading therein that they being owner of
the property in dispute and permission to execute the
Sale Deed in favour of the plaintiff as per agreement
having been refused by the competent authority, they
are entitled to take possession of the property in
dispute from the plaintiffs. Possession of the plaintiffs
was permissive and was on their bahalf, and as such,
they are entitled to decree for possession of the
property in dispute.
4. In the replication filed by the plaintiff, allegations
made in the written statement were denied and those
RSA No. 4371 of 2006 5made in the plaint were reiterated. In the replication, it
was pleaded by the plaintiff that his possession has
been adverse, hostile, uninterrupted for more than 12
years, to the knowledge of the defendants and world at
large and he has even become owner of the property
through adverse possession. His possession not being
permissible, he acquired title in the property in dispute.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is entitled to relief of
permanent injunction as prayed for? OPP
2. Whether the defendant is entitled to relief of
possession as claimed in the counter-claim? OPD
3. Whether the plaintiff No.1 have become owner
in possession of the suit land on the basis of adverse
possession? OPP
4. Whether the plaintiffs have got no locus standi
to file the present suit? OPP
5. Relief. “
The following additional issues were also framed by the
trial Court on 18.3.1997:-
4A Whether the defendants are estopped by their
own act and conduct from filing the present counter
claim? OPP
RSA No. 4371 of 2006 64B Whether the counter claim is within time?
OPD
Learned counsel for the appellant has submitted that the
possession of the plaintiff was by way of adverse possession after
the date for execution of the sale deed had lapsed. The plaintiff had
been put in possession of the suit property on the basis of an
agreement to sell executed between the parties. However,
permission was not granted to the defendants to sell the suit property
by the competent authority and from the said date i.e. 20.7.1976, the
possession of the plaintiff over the suit property was adverse to that
of the defendants. In support of his arguments, learned counsel has
placed reliance on Shiv Kumar and others v. Ajodhia Nath and
others AIR 1972 J&K 125
Learned counsel for the respondents, on the other hand,
has submitted that the plaintiff was required to state in the plaint
itself that he was in possession of the suit property by way of adverse
possession and how and when it became adverse. In the present
case, no such averment was made by the plaintiff in the suit. It was
only in the replication filed by the plaintiff to the written statement
filed by the defendants, plaintiff had averred that he had become
owner of the property in dispute by way of adverse possession. In
support of his arguments, learned counsel has placed reliance on a
decision of the Apex Court in Achal Reddy v. Ramakrishna Reddiar
and others (1990) 4 SCC 706, wherein it was held that adverse
RSA No. 4371 of 2006 7
possession implies that it commenced in wrong and is maintained
against right. When the commencement and continuance of
possession is legal and proper, referable to a contract, it cannot be
said to be adverse.
Learned counsel has next placed reliance on a decision
of the Apex Court in Dr.Mahesh Chand Sharma v. Raj Kumari
Sharma 1996 (1) RRR 387, wherein it was held that 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 the facts necessary to establish his adverse
possession.
After hearing learned counsel for the parties, I am of the
opinion that the present appeals deserve to be dismissed.
The facts in this case are not in dispute. Admittedly, an
agreement to sell with regard to property in dispute was executed by
the defendants in favour of the plaintiff. The said agreement to sell is
Ex.P-1. Sale deed was to be executed on or before 20.6.1976.
Rs.2,000/- were paid as earnest money by the plaintiff to the
vendors. There was one recital in the agreement that the defendants
would apply and get permission from the competent authority under
the Urban Land (Ceiling and Regulation) Act, 1976. Parties again
entered into another agreement regarding the same land on
17.6.1976 and the date for execution and registration of sale deed
was extended to 15.9.78. The plaintiff was handed over the
RSA No. 4371 of 2006 8
possession of the suit property in terms of the agreement to sell.
In these circumstances, the possession of the plaintiff
was permissive as per the agreement. In order to prove that the
possession of the plaintiff was adverse, there must be a specific
pleading of dis-claiming title from a particular date, hostile assertion
thereof and setting up of adverse possession from a particular date
to the knowledge of true owner and his acquiescence for the long
continuous uninterrupted period. A permissive possession at
inception does not become adverse merely by passing of long time in
the absence of requisite animus. The burden is always on the
person claiming adverse possession. A person whose possession
can be referred to a lawful title will not be permitted to show that his
possession was hostile to another’s titled. In the absence of specific
pleading of all the necessary ingredients, plea of adverse possession
has to fail. No presumption of fact can be drawn in favour of a
person claiming adverse possession. There is no equity in favour of
such person.
In the present case, the plaintiff had not pleaded adverse
possession in the plaint. It was only in the replication that plea of
adverse possession was taken. The plaintiff had got the possession
of the suit property on the basis of an agreement to sell and
continued to remain in possession although sale deed was not
executed in his favour. At the most the possession of the plaintiff
can be said to be permissive. Admittedly, the defendants are owners
RSA No. 4371 of 2006 9
of the suit property along with their mother. Hence, the Courts
below have rightly dismissed the suit of the plaintiff-appellant and
have rightly decreed the counter claim filed by the defendants
seeking possession.
The judgment relied upon by learned counsel for the
appellant fails to advance the case of the appellant as the appellant
had failed to assert and establish that he had become owner by way
of adverse possession.
No substantial question of law arises in these regular
second appeals. Accordingly, the same are dismissed.
(SABINA)
JUDGE
July 23, 2009
anita