Hari Chand @ Harish Chandra Vs. Shri
Daulat Ram [1986] INSC 212 (15 October 1986)
RAY, B.C. (J) RAY, B.C. (J) SEN, A.P. (J)
CITATION: 1987 AIR 94 1986 SCR (3)1029 1986
SCC (4) 524 JT 1986 659 1986 SCALE (2)599
ACT:
Limitation Act, 1963-Article 142-Adverse
possession- Plea of-Existence of disputed wall with khaprail proved by
defendent-Plaintiff to prove case of trespass and encroachment.
HEADNOTE:
The appellant instituted a suit for recovery
of possession of the disputed land after demolition of the unauthorised
constructions made thereon by the respondent alleging that he became owner of
the land on the basis of a registered sale deed, that he started to build a
compound wall over and around his land after his purchase, that taking undue
advantage of his temporary absence the respondent wrongfully encroached and
trespassed along the whole northern length of the land and hurriedly raised a
low mud wall and extended his khaprail thatch over it.
In his written statement the respondent
denied that the appellant was owner of the land and claimed that the wall and
khaprail belonged to him as they have been existing at their present site since
time immemorial, that he had been regularly and openly enjoying the land and
that under s. 142 of the Limitation Act he became the absolute owner of the
land in question on the basis of adverse possession and he has a right of
easement in the form of flowing of water from the tiled roof.
The Additional Munsif dismissed the suit
holding that the appellant was the owner of the property and that he had failed
to prove the case of trespass and encroachment.
The appeal filed by the appellant was allowed
by the Additional Civil Judge holding that the respondent has failed to prove
that the wall in dispute and the khaprail existed for the last more than 12
years before the suit, that even if respondent's wall and khaprail are old ones
he is not entitled to maintain them after the same was allotted in the deed of
partition dt. 3.3.58, and that the appellant is entitled to posses- 1030 sion
after demolition of the construction of the portion found encroached by
respondent.
The second appeal filed by the respondent was
dismissed by the High Court and the judgment and decree of the lower Appellate
Court were affirmed. The respondent filed a review application alleging that
the partition deed dt. 17th March, 1963 was not in fact a deed of partition but
merely an agreement between the parties to partition the property and there was
no actual partition by metes and bounds and that the respondent continued to
remain co-owner and co-sharer of the property in suit.
The High Court allowed the review application
and held that the mere allotment of shares by the said deed of partition did
not amount to partition by metes and bounds, set aside the judgment and decree
of the lower Appellate Court and dismissed the suit.
In the appeal to this Court on behalf of the
appellant it was contended that the land in dispute was allotted to the vendor
in accordance with the deed of partition (Ext.
3/1) and shown in map (Ext. 3/2) effected
between the parties on 17.3.58 and this has been mentioned in the sale:deed
(Ext. 1) and, therefore, the judgment and decree of the High Court is not in
accordance with law and should be set aside.
Dismissing the appeal, ^
HELD: 1. There is no pleading regarding the
partition of the property No. 164 nor there is any pleading to the effect that
the disputed mud wall with the khaprail on it was ever in possession of
appellant's vendor before the sale of the land in question in favour of the
appellant. [1034H;
1035A-B]
2. On a consideration of the evidence on
record it is established that the alleged encroachment by construction of
kuchha wall and khaprail over it is not a recent construction as alleged to
have been made in May 1961. On the other hand it is crystal clear from the
evidence of PW 1 and DW 1 that the disputed wall with khaprail existed there on
the disputed site for a long time i.e., 28 years before and the wall and the
khaprail have been affected by salt, as deposed by these two witnesses. The
Court Amin's report 57C also shows the said walls and khaprail to be 25-30
years old in its present condition. The High Court rightly came to the finding
that though the partition deed was 1031 executed by the parties yet there was
no partition by metes and bounds. Moreover, there is no whisper in the plaint
about the partition of the property in question between the co-sharers by metes
and bounds nor there is any averment that the suit property fell to share of
appellant's vendor and he was ever in possession of the disputed property since
the date of partition till the date of sale to the appellant. The appellant has
singularly faild to prove the case as pleaded in the plaint. [1037C-E] 3.
Without considering the deposition of Respondent No.
1 as well as the report of the Amin 57C the
Additional Civil Judge wrongly held that the respondent failed to prove that
the wall in dispute and the khaprail existed for the last more than 12 years
before the suit. The Civil Judge further held on surmises as "may be that
the wall and khaprail have not been raised on May 1961 as is the plaintiff's
case, but they are recent constructions." This decision of the lower
Appellate Court is wholly incorrect being contrary to the evidence on record.
[1037A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 755 of 1971 From the Judgment and Order dated 21.12.1970 of the Allahabad
High Court in Second Appeal No. 2757 of 1963.
D.P. Singh, R.P. Singh and D.S. Mehra for the
Appellant.
L.P. Vats and S.P. Panday for the Respondent.
The Judgment of the Court was delivered by
B.C. Ray, J. This appeal by special leave is against the judgment and decree
dated 21st December, 1970 of the Allahabad High Court in Second Appeal No. 2757
of 1963 allowing the appeal on setting aside the judgment and decree of the
court of appeal below and dismissing the plaintiff's suit.
The plaintiff Hari Chand @ Harish Chandra
instituted suit No.610 of 1961 in Court of the Munsif, Agra for recovery of
possession of the disputed land shown in red colour attached to the plan marked
with letters GCDH on demolition of the unauthorised constructions made thereon
by the defendant alleging inter alia that the plaintiff became owner in
possession of a piece of land measuring 1580 Sq.
ft. situated at Sultanpura, Agra Cantt.
designated as No.
164A, and 1032 shown in the plan attached
thereto with letters A, B, C, D, E, F on the basis of a registered sale deed
dated 9th May, 1961, from Ramji Lal owner of the said property. It has been
further alleged that the plaintiff started to build a compound wall over and
around his land after his purchase.
The defendant taking undue advantage of the
plaintiff's temporary absence from Agra, wrongfully encroached and trespassed
along the whole Northern length of the plaintiff's land measuring North to
South about 4 ft. and East to West about 62 1/2 ft. by hurriedly raising a low
mud wall and extending his khaprail thatch over it. It has been shown in the
attached plain in red colour with letters G, C, D & H. It has been further
alleged that inspite of plaintiff's objection against the said wrongful
encroachment and trespass the defendant did not pay any heed to it. It has also
been pleaded that the cause of action of the suit primarily arose on or about
22nd May, 1961 when the defendant made the encroachment and wrongful
constructions over the plaintiff's land as well as it arose on 4.6.1961 when
the defendant failed to remove the encroachment inspite of the plaintiff's
notice. Hence this suit has been instituted.
The defendant filed a written statement
denying that the plaintiff was owner of the land shown by GCDH in the plan
attached to the plaint. The defendant also denied the correctness of the sale
deed dated 9.5.1961. It has been stated that the land marked GCDH as shown in
red colour in the plan attached to the plaint never belonged to the plaintiff.
The wall and khaprail belonging to the contesting defendant have been existing
at their present site since time immemorial. The plaintiff's allegation that
the contesting defendant has constructed the wall and extended the khaprail
(tiled roof) in May 1961 is totally wrong and baseless. It has been further
stated that he did not make any new construction. The defendant also stated
that the plaintiff illegally tried to remove his kutcha wall and the tiled roof
situate at the place marked G, C, D & H.
Accordingly, on 25.5.1961 the contesting
defendant gave a notice to the plaintiff mentioning the actual facts to which
he gave a wrong reply. The plaintiff's allegation that the wall and tiled roof
of the defendant encroach upon the plaintiff's land is totally wrong, false and
baseless. It has been stated that the wall and tiled roof belongs to the
contesting defendant and the eaves of tiled roof have been at the same place
since time immemoral where they are at present. He has been regularly and
openly enjoying all the proprietary rights and rights of adverse possession in
respect of the land aforesaid. Under Sec. 142 of the Limitation Act, the
contesting defendant became the absolute owner of the land in dispute on the
1033 basis of the adverse possession as well and he has a right of easement in
the form of flowing of water from the tiled roof. The kuchha house No.164
belonging to the contesting defendant has been existing at its site exactly in
the same condition in which it was built by the defendant's grandfather. The
eaves have been dropped at that very place and the khaprail has also been
existing at that very place.
The contesting defendant did not make any new
construction as alleged by plaintiff in the plaint. Property Nos. 163 and 164
consisted of kuchha houses. The contesting defendant demolished the Property
No. 163 which had come to his share and got in pucca built. Property No. 164 is
a khaprail in which the contesting defendant is living and was living at the
time of partition. The defendant therefore, states that the suit is liable to
be dismissed.
Third Additional Munsif, Agra after hearing
the parties and also on a consideration and appraisement of the evidence on
record held that the plaintiff was the owner of the property described in the
plaint by the boundaries but the defendant has not trespassed over his land and
has not constructed a new wall or khaprail. It has been further held that the
plaintiff failed to prove the case of trespass and encroachment. The suit was
accordingly dismissed with costs.
Against this judgment and decree the
plaintiff preferred an appeal being numbered as Civil Appeal 220 of 1963 in the
court of District Judge, Agra. This appeal was allowed by the IInd Addl. Civil
Judge, Agra holding that the defendant failed to prove that the wall in dispute
and the khaprail existed for the last more than 12 years before the suit, even
though it was not proved that the khaprail had been raised in May 1961 as was
the case of the plaintiff, but they are recent construction. It was further
held that even if the defendant's wall and khaprail are old ones he is not
entitled to maintain them after the same was allotted to Ramji Lal in the deed
of partition dated 3.3.1958. It has been further held that the plaintiff is
entitled to possession after demolition of the construction on the portion
found encroached by defendant. The judgment and degree of the court below was
set aside.
Against this judgment and decree Second
Appeal No. 2757 of 1963 was filed before the High Court at Allahabad. This
appeal was dismissed by judgment and order dated 8.9.1963 and the judgment and
decree of the lower appellate court was affirmed.
A review application No. 269 of 1969 for the
review of the said 1034 judgment was filed before the High Court on the ground
that the alleged partition deed dated 17th March, 1963 was not in fact a deed
of partition but merely an agreement between the parties to partition the
property and there was no actual partition by metes and bounds. The defendent
continued to remain co-owner and co-sharer of the property in suit. The decree
passed in the said suit is neither possible nor permissible under the law. This
review application was allowed by judgment and order dated December 9, 1970
setting aside the judgment dated 8th September, 1969 and directing the appeal
to be listed for further hearing.
Accordingly on 21.12.1970 the appeal was
heard by the learned judge who held that the mere allotment of shares by the
said deed of partition did not amount to partition by metes and bounds. The
appeal of the defendant was allowed and the judgment and decree of the lower
appellate court were set aside and the suit was dismissed.
Against this judgment and decree the instant
appeal on special leave was filed by the plaintiff. The learned counsel for the
plaintiff tried to urge before us that the land in dispute marked as GCDH in
the plan was allotted to the share of the plaintiff's vendor Ramji Lal in
accordance with the deed of partition (Ext. 3/1) and shown in map (Ext.
3/2) effected between the parties on
17.3.1958 and this has been mentioned in the sale deed (Ext. 1) executed by
Ramji Lal, one of the co-sharers of the property. It has, therefore, been
submitted that the judgment and decree of the High Court is not in accordance
with law and it should be set aside. This contention advanced on behalf of the
plaintiff cannot be sustained in as much as there is no pleading in the plaint
that the disputed property shown in red colour and marked as GCDH fell within
the allotment of the plaintiff on the basis of the deed of partition executed
in 1958 between the plaintiff's vendor Ramji Lal and his two other
brothers-Daulat Ram and Bishambhar Nath. It was also been not pleaded that the
disputed mud wall and the Khaprail over it were all along in possession of his
vendor before the sale of the said land measuring 1580 Sq. ft appertaining to
Property No. 164A. The plaintiff's case is that he got possession of the land
he purchased including the suit land on May 9, 1961 and the defendant illegally
trespassed on the said portion of land marked in red colour in the plan
attached to the plaint and hurriedly constructed a low mud wall and extended
his khaprail thatch over it on May 22, 1961 and so the suit for recovery of
possession of this land on demolition of the unauthorised construction put up
by the defendant was brought. There is no pleading regarding the partition of
the Property No. 164 between 1035 Ramji Lal and his two brothers nor there is
any pleading to the effect that the disputed mud wall with the khaprail on it
was ever in possession of his vendor Ramji Lal before the sale of the land in
question in favour of the plaintiff. On the other hand, the defendant strongly
and categorically stated in his written statement that the mud wall along with
khaprail were in existence there for a long time and he was living in the said
khaprail to the knowledge of the plaintiff's vendor. He also denied that he
made any new construction of the wall on 22nd May, 1961 as alleged by the
plaintiff. He also stated that the wall and the tiled roof belonged to the
defendant and the existence of the tiled roof had been at the same place in the
same condition for a long time long before. the partition deed made in 1958.
The defendant also stated in his written statement that more than twenty years
before private parition took place amongst the defendant and his brothers Bish
ambar Lal and Ramji Lal.
Property No. 163 and 164 had come to his
share. He demolished the Property No. 163, and he made pucca construction
therein. Property No. 164 is khaprail wherein the contesting defendant is
living and was also living at the time of partition.
The plaintiff has examined three witnesses
including himself and his vendor Ramji Lal. P.W. 1 Ramji Lal stated in his
deposition that the portion shown in red in plan No.
36/4 Ka came to his share and defendant
Daulat Ram was never in possession of this red portion after partition. It was
also his evidence that at the time of sale, wall belonging to Daulat Ram did
not exist over the portion showed in red colour. In cross-examination he said
that there was a tiled shed towards the north of the land in dispute. Daulat
Ram used to live therein. All these three portions had old tiles. There was a
chhappar over the portion shown in red.
Tiled roof was made after the fire accident.
It happened about 28 years back. The land in dispute has been affected by salt
and the adjoining kuchha walls have also been affected by salt. P.W. 2 Harish
Chandra, the plaintiff, stated in his evidence that he was not present at the
time encroachment was made by constructing a wall. Some persons told him about
the extension of the wall. On crossexamination he stated that pucca rooms
belonging to Daulat Ram stand at No. 163. He cannot say if they have been in
existence 15-20 years. It is the evidence of defendant Daulat Ram, D.W. 1, that
the wall in dispute has been in its place since the time he attained the age of
discretion.
There has been tiled roof for the last about
28 years back.
Before that there was a thatched shed. It is
also his evidence that his mother effected partition about 28 years.
The wall in dispute was in existence when
this partition was effected. It has been existing 1036 in the same condition
since then. It is also his evidence that his mother got the partition effected
28 years back. He also stated in crossexamination that he did not affix his
thumb impression on the plan prepared at the time the partition deed was
executed. No measurements were done at the time the plan was prepared. D.W. 2
Khunni Lal a retired overseer stated in cross-examination that he had given his
opinion that the wall in dispute belonged to Daulat Ram and that the flow of
its water on the southern side was reasonable.
On a consideration of these evidences it is
quite clear that the disputed kachha wall and the khaprail over it is not a new
construction, but existed for over 28 years and the defendant has been living
therein as has been deposed to by Ramji Lal vendor of the plaintiff who
admitted in his evidence that the land in dispute and the adjoining kachha
walls had been affected by salt and the chhappar over the portion shown in red
was tiled roof constructed about 28 years back. This is also supported by the
evidence of the defendant, D.W. 1, that the wall in dispute was in existence
when the partition was effected i.e., 28 years before. On a consideration of
these evidences the Trial Court rightly held that the defendant had not
trespassed over the land in question nor he had constructed a new wall or
khaprail. The trial court also considered the report 57C by the court Amin and
held that the wall in question was not a recent construction but it appeared 25-30
years old in its present condition as evident from the said report. The suit
was therefore dismissed. The lower appellate court merely considered the
partition deed and map Exts. 3/1 and 3/2 respectively and held that the
disputed property fell to the share of the plaintiff's vendor and the
correctness of the partition map was not challenged in the written statement.
The court of appeal below also referred to
Amin's map 47 A which showed the encroached portion in red colour as falling
within the share of plaintiff's vendor, and held that the defendant encroached
on this portion of land marked in red colour, without at all considering the
clear evidence of the defendant himself that the wall and the khaprail in
question existed for the last 28 years and the defendant has been living there
all along. P.W. 1 Ramji Lal himself also admitted that the wall existed for
about 28 years as stated by the defendant and the kachha walls and the khaprail
has been effected by salt. The lower appellate court though held that P.W. 1
Ramji Lal admitted in cross-examination that towards the north of the land in
dispute was the khaprail covered room of Daulat Ram in which Daulat Ram lived,
but this does not mean that the wall in dispute exists for the last any certain
number of years, although it can be said that it is not a 1037 recent
construction. Without considering the deposition of defendant No. 1 as well as
the report of the Amin 57 C the IInd Addl. Civil Judge, Agra wrongly held that
the defendant failed to prove that the wall in dispute and the khaprail existed
for the last more than 12 years before the suit. The Civil Judge further held
on surmises as "may be that the wall and khaprail have not been raised in
May, 1961 as is the plaintiff's case, but they are recent constructions."
This decision of the court of appeal below is wholly incorrect being contrary
to the evidences on record.
On a consideration of all the evidences on
record it is clearly established that the alleged encroachment by construction
of kuchha wall and khaprail over it is not a recent construction as alleged to
have been made in May 1961. On the other hand, it is crystal clear from the
evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with
khaprail existed there in the disputed site for a long time, that is 28 years
before and the wall and the khaprail have been affected by salt as deposed to
by these two witnesses. Moreover the court Amin's report 57 C also shows the
said walls and khaprail to be 25-30 years old in its present condition. The
High Court has clearly came to the finding that though the partition deed was
executed by the parties yet there was no partition by metes and bounds.
Moreover there is no whisper in the plaint
about the partition of the property in question between the co-sharers by metes
and bounds nor there is any averment that the suit property fell to the share
of plaintiff's vendor Ramji Lal and Ramji Lal was ever in possession of the
disputed property since the date of partition till the date of sale to the
plaintiff. The plaintiff has singularly failed to prove his case as pleaded in
the plaint.
In the premises aforesaid the appeal fails
and it is dismissed. There will however be no order as to costs.
A.P.J. Appeal dismissed.
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