IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.2040 of 2009
Date of Decision: 18.5.2009
Baldev Singh.
....... Appellant through Shri
Padam Jain, Advocate.
Versus
Kewal Singh Virdi and others.
....... Respondents.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against judgments and
decrees dated 30.8.2007 and 13.1.2009 passed respectively by the Civil
Judge (Senior Division), Kapurthala (referred to hereinafter as `the trial
Court’) and the District Judge, Kapurthala (hereinafter described as `the
First Appellate Court’) whereby the suit of the plaintiff-respondent no.1 was
decreed and the appeal filed by the appellant was dismissed.
Respondent no.1 filed a suit for possession against Darshan
Singh and Smt.Swaran Kaur, the parents of the appellant and proforma
respondents herein, pleading therein that he had purchased the plot in
dispute from one Ramesh Kumar son of Sant Kumar for a total sale
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consideration of Rs.8000/- vide registered sale deed dated 4.4.1973.
According to him, in that very year, he had left for foreign country and since
then, he was residing in England. In his absence, he had requested Shri
Mohinder Singh Rhency son of Amar Singh to look after the plot in
dispute. Shri Mohinder Singh Rhency also left India in the year 1989 and
died in the year 1991. Darshan Singh and Smt.Swaran Kaur, who were
owners of the adjoining plot, took forcible possession of the plot in dispute
and raised construction thereon. It was the case of respondent no.1 that he
came to know about the illegal act of Darshan Singh and Smt.Swaran Kaur
from Ravinderpal Singh son of Jagir Singh to whom he had written in the
year 1995. He, thereafter, appointed Shri Ravinderpal Singh as his attorney
on 3.9.1995 to do the needful. Shri Ravinderpal Singh then approached
Darshan Singh and Smt.Swaran Kaur and requested them to remove the
Malba and restore the possession of the plot to respondent no.1, but they
refused to do so, which has forced the filing of the instant suit.
Upon notice, Darshan Singh and Smt.Swaran Kaur appeared
and filed their written statement contesting the suit. It was pleaded that they
had become owners in possession of the property in dispute on the basis of
adverse, hostile and long possession since June,1983 and that the
construction has been raised thereon after spending a huge amount, i.e.,
Rs.ten lacs; that nine rooms, one big hall, one kitchen,one verandah, porch,
five toilets and stairs have been constructed in the plot in dispute; that this
construction was to the knowledge of the attorney of respondent no.1,but he
never raised any objection to it; that they had raised construction over plot
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nos. 61 and 62 at one and the same time during the year 1983-84 and
boundary wall around these plots was raised in June,1983; that one room
was constructed initially in plot no.61 for storing building material for
raising construction in plot in dispute as well as in plot no.62; that
thereafter, water connection was obtained from the Municipal Committee in
the plot in dispute and the electrical connection was also installed in their
names therein; and that after raising construction in the plot in dispute, the
building was given on lease to Additional Deputy Commissioner, Rural
Development and various other tenants from time to time. On the basis of
these pleadings, it was averred that respondent no.1 had no concern with the
plot in dispute. The suit was stated to be time barred. They had also alleged
that the suit was not maintainable as it was not filed by an authorised
person.
Respondent no.1 had filed replication denying the factum of the
construction having been raised in the year 1983 and also denied the
possession of Darshan Singh and Smt.Swaran Kaur over the plot in dispute
since June,1983. It was pleaded that the plot in dispute was lying vacant up
to the year 1989 and was being taken care of by Shri Mohinder Singh
Rhency, who had died in the year 1991 and that the construction was raised
thereafter in the year 1991-92. The factum of raising of construction on plot
nos. 61 & 62 simultaneously was also denied. It was denied that the
boundary wall in was raised in the year 1983.
The parties went to trial on the following issues:-
1. Whether the plaintiff is owner of the plot in dispute on the
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basis of sale deed dated 4.4.1973 and entitled for possession
of the plot?OPP
2. Whether the suit is within time?OPP
3. Whether the suit has been filed by duly authorised and
competent person?OPP
4. Whether the defendants have become owners of the
property in dispute being in possession since June,1987,by
way of adverse, hostile possession?OPD
5. Whether the plaintiff is estopped to file this suit by his act
and conduct?OPD
6. Whether the suit is not maintainable in the present
form?OPD
7. Relief.
The trial Court as well as the First Appellate Court concluded
that respondent no.1 was owner of the plot in dispute on the strength of a
validly executed sale deed and that Darshan Singh and Smt.Swaran Kaur
had no concern with it. The plea of adverse possession was also rejected.
This has resulted in filing of the instant appeal by Baldev
Singh, son of Darshan Singh & Smt.Swaran Kaur. It appears that
Smt.Swaran Kaur had died during the pendency of the suit, whereas
Darshan Singh expired before filing of the appeal before the First Appellate
Court.
Learned counsel for the appellant has contended that even
though respondent no.1 has set up the sale deed in respect of the plot in
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dispute, yet, the construction was raised in the year 1983 by the parents of
the appellant and, therefore, they had become owner by way of adverse
possession which was open and hostile to his knowledge. He further
contended that even if the plea of adverse possession is to be rejected, then
also, the suit of respondent no.1 could not have been decreed in view of the
fact that the parents of the appellant had raised huge construction over the
plot in dispute and the only course open to the Court was to compensate
him, rather than decreeing the suit in the manner in which it has been done.
In support of his contentions, he placed reliance on R.S. Mutghuswami
Gounder Versus A. Annamalai and others, AIR 1981 Madras 220 and Food
Corporation of India and another Versus Dayal Singh, 1991 (1) Revenue
Law Reporter 10 (P&H).
I have thoughtfully considered the contentions of the learned
counsel for the appellant and have perused the impugned judgments.
The fact that respondent nio.1 was owner of the plot in dispute
on the basis of validly executed sale deed is not in question as it has been
admitted by Darshan Singh and Smt.Swaran Kaur in their written statement.
It is also not in dispute that they were owner of plot no.62 and now, the
appellant and proforma respondents have stepped into their shoes. There is
evidence on record from where it is established that Mohinder Singh
Rhency had been looking after the plot in dispute and he left India in the
year 1989 and died in 1991. There is absolutely no evidence to suggest that
the construction over the plot in dispute was raised prior to this as pleaded
by Darshan Singh and Smt.Swaran Kaur. If the plea of adverse possession
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was to be tested on the strength of open and hostile to the knowledge of
respondent no.1, then this fact was necessary to be established before the
Courts below.
The plea of respondent no.1 that the construction was raised
after the year 1991 finds corroboration from the testimony of PW2-Ravinder
Pal Singh, who has stated that the construction had been carried out in the
year 1991-92. In this view of the matter, the plea of adverse possession as
raised by the learned counsel for the appellant has to be rejected outrightly.
Interestingly, the appellant, while appearing as DW1, had stated
that there is only plot no.62 and denied the existence of plot no.61
altogether, which has been rejected by the First Appellate Court on the
ground that it is beyond the pleadings.
The only other evidence which has been brought on record by
Darshan Singh and Smt.Swaran Kaur was in the shape of the testimony of
DW2-Charanjit Siungh Bhasin, who proved the evaluation report, Exhibit
D1 and the site plan, Exhibit D2, which were rightly discarded as they
pertained to the year 2006.
Thus, there is no evidence to suggest that the open and hostile
possession of Darshan Singh and Smt.Swaran Kaur over the plot in dispute
was to the detriment of respondent no.1 and the factum of the construction
being raised in the year 1983-84 remained un-established. Therefore, the
findings recorded by the Courts below do not warrant any interference.
The contention of the learned counsel for the appellant that the
suit ought not to have been decreed and rather, only compensation should
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have been awarded to respondent no.1 is also erroneous and is liable to be
rejected. Darshan Singh and Smt.Swaran Kaur were merely usurpers of the
plot in dispute to which respondent no.1 had a rightful claim. They had
raised construction over it without any authority and right. If the contention
is accepted, then it will amount to putting a seal of approval on a lawless act
of Darshan Singh and Smt.Swaran Kaur. The suit of respondent no.1 was
for possession of the plot in dispute regarding which he successfully
established his ownership right before the Courts below. The judgments
relied upon by the learned counsel for the appellant do not enhance the case
of the appellant in any manner as they pertained to the relief of specific
performance where under the Specific Relief Act, a discretion has been
vested in the Court under Section 20 thereof to award compensation if the
specific performance of a valid and lawful document.
On the basis of the above discussion, no substantial question of
law arises for determination in this appeal which is held to be without any
merit and is dismissed.
May 18,2009 ( Mahesh Grover ) "SCM" Judge