{"id":144175,"date":"2009-07-27T00:00:00","date_gmt":"2009-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balbir-kaur-and-others-vs-harjinder-singh-and-others-on-27-july-2009"},"modified":"2019-04-13T12:06:45","modified_gmt":"2019-04-13T06:36:45","slug":"balbir-kaur-and-others-vs-harjinder-singh-and-others-on-27-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balbir-kaur-and-others-vs-harjinder-singh-and-others-on-27-july-2009","title":{"rendered":"Balbir Kaur And Others vs Harjinder Singh And Others on 27 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Balbir Kaur And Others vs Harjinder Singh And Others on 27 July, 2009<\/div>\n
R.S.A.No. 3276 of 2003                                          1\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                      CHANDIGARH\n\n                                R.S.A.No. 3276 of 2003\n\n                                Date of Decision : July 27, 2009\n\nBalbir Kaur and others                               ...Appellants\n\n                                Versus\n\nHarjinder Singh and others                           ...Respondents\n\nCORAM:HON'BLE MR. JUSTICE HEMANT GUPTA\n\nPresent: Mr. M.L.Sagger, Sr. Advocate, with\n         Mr. Anant Bir Singh, Advocate,\n         for the appellants.\n\n          Mr. G.P.S.Bal, Advocate,\n          for respondent Nos.2 and 4.\n\nHEMANT GUPTA, J.\n<\/pre>\n
          This order shall dispose of RSA Nos.3269 of 2003, 3270 of<\/p>\n
2003 and 3276 of 2003 in respect of same property i.e. house No.369\/8,<\/p>\n
Central Town, Jalandhar.\n<\/p>\n
          RSA No.3269 of 2003 arises out of suit for mandatory<\/p>\n
injunction filed by the respondents claiming possession from the<\/p>\n
appellant as a licencee; RSA No.3270 of 2003 arises out of suit for<\/p>\n
permanent injunction filed by the respondents herein, restraining the<\/p>\n
defendant-appellants from forcibly and illegally occupying the portion<\/p>\n
shown red in the site plan; and RSA No.3276 of 2003 arises out of a suit<\/p>\n
filed by the appellant for declaration that he is in possession of double<\/p>\n
storey House No.369\/8, Central Town, Jalandhar as a owner. This suit<\/p>\n
for declaration filed by the appellant is earliest in point of time, therefore,<\/p>\n
the facts are taken from the said suit.\n<\/p>\n
 R.S.A.No. 3276 of 2003                                        2<\/span><\/p>\n
          The plaintiff-appellant has claimed a decree of declaration to<\/p>\n
the effect that he is owner in possession of the house in dispute. It is<\/p>\n
alleged that the land in dispute was owned by defendant No.3. In the<\/p>\n
year 1963, the plaintiff raised some construction over it by spending<\/p>\n
funds from his own pocket, wen he was posted at Delhi. He authorized<\/p>\n
one of his relation Mehnga Singh to carry out construction for which the<\/p>\n
funds flowed from the pocket of the plaintiff. Mehnga Singh raised<\/p>\n
skelton construction in the year 1963.         Mehnga Singh applied for<\/p>\n
electricity meter in his own name. In the year 1965, the plaintiff moved<\/p>\n
bag and baggage to Jalandhar. Defendant No.3 asserted his title over the<\/p>\n
suit land under-neath the suit property as well as over the moderate<\/p>\n
construction over it in the year 1965. The plaintiff did not yield to the<\/p>\n
assertion of title by defendant No.3. However, the plaintiff asserts that he<\/p>\n
allowed defendant No.3 to reside in the suit property as a licencee for few<\/p>\n
months.    In the year 1966, the plaintiff terminated the license of<\/p>\n
defendant No.3 and ousted him completely from the suit property and at<\/p>\n
that time, a very conservative construction was in existence over the plot.<\/p>\n
After ouster of defendant No.3, the plaintiff asserted his hostile title over<\/p>\n
the suit property. In the year 1967, he raised extensive construction over<\/p>\n
the suit property and converted into a palatial double storey building.<\/p>\n
The plaintiff thereafter carried out renovation from time to time as well.<\/p>\n
The plaintiff asserts that he has let out the portion of property from time<\/p>\n
to time and portion shown in green colour was let out to defendant No.2<\/p>\n
in the year 1990. The plaintiff asserts himself to be in adverse possession<\/p>\n
to the knowledge of defendant No.3 openly, peaceful and continuously
\n R.S.A.No. 3276 of 2003                                       3<\/span><\/p>\n
for the period of more than 12 years and, thus, claimed ownership over<\/p>\n
the suit property.\n<\/p>\n
          Defendant No.2 in the present suit, is the plaintiff in the other<\/p>\n
two suits. It was asserted that plaintiff is not in possession of the entire<\/p>\n
property, but is in possession of only two rooms, store and kitchen on the<\/p>\n
first floor and that his possession is that of licencee under the owner. It<\/p>\n
was asserted that the house was owned by Hardeep Singh S\/o Puran<\/p>\n
Singh, who sold the same to defendant No.2 and his wife vide four<\/p>\n
registered sale deeds dated 25.1.1995.      Hardeep Singh delivered the<\/p>\n
possession of the same to defendant No.2 and his wife except two rooms,<\/p>\n
store and kitchen on the first floor. The plaintiff is a close near relation<\/p>\n
of previous owner, being maternal uncle. It was defendant No.3, who<\/p>\n
permitted the plaintiff to use the said portion i.e. two rooms, store and<\/p>\n
kitchen as a licencee and to look after the same, as the owner was<\/p>\n
residing abroad. It was asserted that since the licence\/permission granted<\/p>\n
to the defendant, stands revoked, the plaintiff has no right or interest in<\/p>\n
the property. It was asserted that defendant No.2 has already filed a suit<\/p>\n
for mandatory injunction to claim the vacant possession of the property.<\/p>\n
It was denied that it was plaintiff, who raised construction in the year<\/p>\n
1963 or that the plaintiff authorized Mehnga Singh to raise construction.<\/p>\n
It was asserted that the entire amount for construction was spent by<\/p>\n
Hardeep Singh. The assertion of the plaintiff that defendant No.2 was a<\/p>\n
tenant of the plaintiff was denied. It was asserted that Subodh Kumar son<\/p>\n
of defendant No.2 was the tenant under defendant No.3.<\/p>\n
          In Civil Suit No.5 of 1996 i.e. the suit for declaration filed by
\n R.S.A.No. 3276 of 2003                                       4<\/span><\/p>\n
the appellants, it was stated to the following effect ;<\/p>\n
          “2. That the land underneath the house was owned by<\/p>\n
          defendant No.3. The plaintiff in the year 1963 raised some<\/p>\n
          construction over it by spending funds from his own pocket. As<\/p>\n
          in the year 1963 the plaintiff was posted at Delhi where he was<\/p>\n
          working as Engineer with Ansel Construction Company<\/p>\n
          (formerly known as C.Loyal & Co.) 8-6\/6, WEA Karol Bagh,<\/p>\n
          Delhi, therefore, he authorised one of his relations Sh. Mehnga<\/p>\n
          Singh to carry out the construction for which funds flowed<\/p>\n
          from the pocket of the plaintiff.       The said Mehnga Singh<\/p>\n
          entrusted with the said task raised a skeletal construction in<\/p>\n
          the year 1963.      The plaintiff moved bag and baggage to<\/p>\n
          Jalandhar in the year 1965 where since the period of his<\/p>\n
          relocation, he is enlisted as a contractor in Military<\/p>\n
          Engineering     Service,    Jalandhar     Cantt.   As   initially<\/p>\n
          construction was raised under the aegis of Mehnga Singh,<\/p>\n
          therefore, Mehnga Singh applied for the electricity meter in his<\/p>\n
          own name.\n<\/p><\/blockquote>\n
          3. That the defendant No.3 in the year 1965 tried to assert his<\/p>\n
          title over the land underneath the suit property as well as the<\/p>\n
          moderate construction over it. The plaintiff did not yield to<\/p>\n
          assertion of title by defendant No.3. However, he allowed the<\/p>\n
          defendant No.3 to reside in suit property as a licencee for a<\/p>\n
          few months.\n<\/p><\/blockquote>\n
          4. That the plaintiff in the year 1966 terminated the licence of
\n R.S.A.No. 3276 of 2003                                       5<\/span><\/p>\n
          defendant No.3 and ousted him completely from the suit<\/p>\n
          property which at that time had a very conserative<\/p>\n
          construction over it.\n<\/p><\/blockquote>\n
          5. That after the ouster of defendant No.3, the plaintiff asserted<\/p>\n
          his hostiletitle over the suit property. He in the year 1967<\/p>\n
          raised extensive construction over the suit property and<\/p>\n
          converted it into a paletial double storey building within the<\/p>\n
          full view and sight of defendant No.3. The plaintiff after that<\/p>\n
          carried out renovations from time to time. He applied for<\/p>\n
          telephone connection in the suit property which stands in the<\/p>\n
          name of Eastern Construction Company headed solely by<\/p>\n
          S.Sarup Singh, plaintiff.”<\/p><\/blockquote>\n
          The learned trial Court dismissed the suit for declaration filed<\/p>\n
by the appellant and decreed the other suits filed by the respondents<\/p>\n
herein. It was held that the origin and possession of the plaintiff over the<\/p>\n
suit house was with the permission of the original owner in the year 1963.<\/p>\n
The plaintiff claims adverse possession since the year 1966. It was held<\/p>\n
that if a person is in permissive possession, he is bound to deliver the<\/p>\n
possession and thereafter he could claim adverse possession. Permissive<\/p>\n
possession can never be adverse for howsoever long period, the person<\/p>\n
may be in possession. It was further found that neither it has been alleged<\/p>\n
nor proved by the plaintiff that he ever delivered or surrendered<\/p>\n
possession to defendant No.3 and thereafter occupied the disputed<\/p>\n
property claiming his adverse possession. It was also found that the<\/p>\n
plaintiff was occupying a portion of suit property as licencee under the
\n R.S.A.No. 3276 of 2003                                           6<\/span><\/p>\n
original owner and since the original owner has transferred title in favour<\/p>\n
of defendant No.2 and his wife, therefore, the said vendees are entitled to<\/p>\n
possession of the entire house, even from the plaintiff after revocation of<\/p>\n
the licence. With the said findings, the suit filed by the appellant was<\/p>\n
dismissed.\n<\/p>\n
          The learned first Appellate Court decided all the three appeals<\/p>\n
arising from three suits together and dismissed the same. The learned<\/p>\n
first Appellate Court has examined the respective contentions of the<\/p>\n
parties and returned a finding that the possession of the appellant was<\/p>\n
permissive in the beginning and he could not set up adverse possession in<\/p>\n
himself without surrender of possession to the true owner. It was also<\/p>\n
found that the appellant has contradicted himself in respect of the timing<\/p>\n
of construction, which makes him unreliable witness. The Court has<\/p>\n
taken into consideration letter Ex.PX, which shows concealment of<\/p>\n
material facts from the Court. The appellant has admitted that he use to<\/p>\n
reside in Delhi in the year 1963 and was in Delhi in 1964 as well. The<\/p>\n
appellant has not led any cogent evidence in respect of raising of<\/p>\n
construction. The appellant could not depose that who had supplied the<\/p>\n
water supply or whether he got the map approved from the Municipal<\/p>\n
Corporation. The Court concluded that at the most the possession of the<\/p>\n
appellant is permissive possession and cannot be considered as adverse.<\/p>\n
          Learned counsel for the appellants has vehemently argued the<\/p>\n
house in dispute was constructed by the appellant Sarup Singh on a land,<\/p>\n
which is owned by defendant No.3. Once the construction has been<\/p>\n
raised by the appellant, therefore, even if it is without any title or interest,
\n R.S.A.No. 3276 of 2003                                       7<\/span><\/p>\n
the appellant cannot be ordered to be dispossessed therefrom without<\/p>\n
paying compensation for the superstructure. Reliance is placed upon a<\/p>\n
judgment of this Court in Food Corporation of India and others Vs.<\/p>\n
Dayal Singh 1991(2) All India Land Laws Reporter 260. It is also<\/p>\n
argued that suit for mandatory injunction is not maintainable as Hardeep<\/p>\n
Singh is not proved to be owner of the superstructure, in which the<\/p>\n
appellant is in possession.\n<\/p>\n
          I have heard learned counsel for the parties at some length, but<\/p>\n
do not find any merit in the present appeals.\n<\/p>\n
          The appellant has claimed declaration setting up adverse<\/p>\n
possession in himself. It is admitted by him that the land is owned by<\/p>\n
Hardeep Singh, who is none else, but his sister’s son. It is also admitted<\/p>\n
that he initially entered into possession of property in dispute on the<\/p>\n
express permission of the owner. The plaintiff was asserted that he has<\/p>\n
raised some construction in the year 1963, but extensive construction was<\/p>\n
raised in the year 1967. However, while appearing as a witness, he has<\/p>\n
deposed that the construction was raised from the year 1963 to 1965.<\/p>\n
Thus, he has contradicted himself with his pleadings, which show<\/p>\n
untruthfulness of the statement of the plaintiff.\n<\/p>\n
          The relationship of parties and material contradictions in the<\/p>\n
pleadings and in the evidence are sufficient to infer that the appellant was<\/p>\n
a licencee. There is no cogent and reliable evidence led by the appellant<\/p>\n
to prove skelton or extensive construction raised in the year 1963 or<\/p>\n
1967. On the other hand, letter Ex.PX written by Harjinder Singh to the<\/p>\n
appellant on 27.5.1988, shows cordial relations between the appellant and
\n R.S.A.No. 3276 of 2003                                       8<\/span><\/p>\n
defendant No.1 as also defendant No.3.       In fact, defendant No.1 in the<\/p>\n
aforesaid letter has communicated to the appellant that he has discussed<\/p>\n
the issue regarding construction of toilet, bathroom, and kitchen down-<\/p>\n
stairs at the house in dispute with Kuldeep and Hardeep-defendant No.3.<\/p>\n
It was communicated to the appellant that it is agreed that the appellant<\/p>\n
should get an Architect to draw out the plans and send them to him with<\/p>\n
the estimates. It is also communicated that expenditure of any kind is<\/p>\n
concerned, the appellant should let them know and they will arrange for<\/p>\n
the finance. There is categorical direction that the rent money is not to be<\/p>\n
touched.    The appellant has admitted the receipt of the said letter.<\/p>\n
However, he has stated that the original letter has been lost by his Lawyer<\/p>\n
in Delhi. The said letter shows that the expenses of construction of toilet,<\/p>\n
bathroom and kitchen was to be met by defendant Nos.1 and 3. There<\/p>\n
was clear direction that the rent money is not to be touched. It only<\/p>\n
means that the appellant was always working on behalf of his nephews<\/p>\n
defendant Nos.1 and 3.       The plea of adverse possession has been<\/p>\n
introduced just to defeat the rights of purchaser from Hardeep Singh,<\/p>\n
which is not only false, but a dishonest plea.\n<\/p>\n
           The argument that the appellant is entitled to compensation for<\/p>\n
the superstructure raised is again misconceived. As a matter of fact, the<\/p>\n
finding recorded by both the Courts below is against the appellant in<\/p>\n
respect of raising of construction. Letter Ex.PX also supports the finding<\/p>\n
recorded that the construction was being raised at the direction and at the<\/p>\n
instance of true owners. Therefore, the argument that the appellant is<\/p>\n
entitled to compensation of the superstructure is misconceived.
\n R.S.A.No. 3276 of 2003                                         9<\/span><\/p>\n
          Even otherwise, the judgment referred to by the learned counsel<\/p>\n
for the appellant is not helpful for the proposition argued.         In the<\/p>\n
aforesaid case, the learned first Appellate Court negated the plea of<\/p>\n
adverse possession raised by the defendant. The decree for possession<\/p>\n
was not granted in view of the principles of acquiescence. In the present<\/p>\n
case, there is no plea of acquiescence raised by the appellant nor the<\/p>\n
appellant is proved to have raised construction. The appellant has found<\/p>\n
to be licencee. As licencee, any improvement carried out by licencee<\/p>\n
even if proved cannot be made basis for defeating the right of possession<\/p>\n
by the licensor as such construction by the licencee is at his own peril. In<\/p>\n
view of the said fact, I do not find any merit in the first argument raised<\/p>\n
by the learned counsel for the appellant.\n<\/p>\n
          The argument that the suit for mandatory injunction is not<\/p>\n
maintainable by the vendee is against not sustainable. The vendee has<\/p>\n
stepped into the shoes of his vendor Hardeep Singh. As per the findings<\/p>\n
recorded, the appellant is a licencee under Hardeep Singh. Therefore, the<\/p>\n
rights and interest of Hardeep Singh stand transferred to the plaintiff-<\/p>\n
respondents and, thus, it was open to the plaintiff-respondents to seek<\/p>\n
possession by filing a suit for mandatory injunction against the licencee.<\/p>\n
          In view thereof, I do not find that any substantial question of<\/p>\n
law arises for consideration of this Court in second appeal.<\/p>\n
          Dismissed.\n<\/p>\n<\/p>\n
July 27, 2009                                   (HEMANT GUPTA)\nVimal                                               JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Balbir Kaur And Others vs Harjinder Singh And Others on 27 July, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-144175","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBalbir Kaur And Others vs Harjinder Singh And Others on 27 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balbir-kaur-and-others-vs-harjinder-singh-and-others-on-27-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balbir Kaur And Others vs Harjinder Singh And Others on 27 July, 2009 - 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