Tej
Narain and Anr Vs. Shanti Swaroop Bohre and Anr [2004] Insc 590 (28 September
2004)
Ashok Bhan & S.H. Kapadia
Bhan, J.
Plaintiff-Baijnath since deceased now represented by his legal
representatives, the appellants herein, filed the suit for declaration and
possession of house known as "Gadaiya Wali Haveli" situated in the
town of Bhind. Both the parties are closely related to each other and belong to
the same family. The genealogy tree of the family is as under:
Mool Chand (Died in Samvat 1940) Sukhwasi Lal Saligram (died on 15.9.1949)
Govind Prasad (Died Samvat 2002) Baijnath-Plaintiff (died on 4.2.1980) Tej
Narayan Prayag Naryan (Both are legal representatives of the Plaintiff) Kishan
Shanti Jagdish Swaroop Swaroop Swaroop (Defendant) (Defendant) (Defendant) On
25.2.1879 the original owner mortgaged the house to Mool Chand and his son
Sukhwasi Lal. Mortgagor had filed a suit for redemption of the mortgage and a
decree for redemption was passed but as he failed to pay the mortgage amount he
lost his ownership right in the house and the house remained in the family of
Mool Chand. The family was joint at that time.
It seems that near about 1928 a partition took place between Sukhwasi Lal
and Saligram, predecessors-in-interest of the plaintiffs appellants and
defendants respondents. The house in dispute came to the share of the
predecessor of the appellant Saligram, but Govind Prasad defendant took
forcible possession of the same in the year 1928. Present suit for declaration
of title and possession was filed in the year 1955 alleging therein that
respondents took forcible possession of the house on 7.7.1949. Two questions
arose for determination in the suit : (a) whether the plaintiffs have been able
to prove their title over the disputed house; (b) whether the suit of the
plaintiffs was barred by limitation in view of the fact that they were not in
possession for more than 12 years since 10.7.1928. The courts below as well as
the High Court have held that the plaintiffs were owners of the house but they
have lost their title to the house as the defendants had perfected their title
to the house by adverse possession. Defendants were found to be in possession
since 10.7.1928 and the plaintiffs had lost their right to maintain the suit
for recovery of possession by lapse of time.
The predecessor-in-interest of the appellant Saligram had filed a criminal
case against Govind Prasad defendant, now represented through his legal
representatives, the respondents herein, which was got dismissed by him on 5.7.1929
as is evident from the certified copy of the application filed by Saligram
(Exhibit D-1) on the record. In this application, it has been mentioned that
Govind Prasad who had taken forcible possession of the disputed house on the
intervention of some panchas had returned the possession to Saligram and
therefore he did not want to pursue the criminal case and the same be
dismissed. This application does not bear the signatures of Govind Prasad.
There is nothing on record to suggest that Govind Prasad had entered into any
such compromise with Saligram and returned back the possession to the
appellants' predecessor at any point of time. This application simply discloses
that Govind Prasad had taken forcible possession of the house in dispute and
the alleged compromise in the application is not an evidence to prove that
Govind Prasad had returned the possession. This application instead binds the
appellants and their predecessor on the point that Govind Prasad had taken
possession over the house in the year 1928 and the criminal case filed by
Saligram was got dismissed by him by moving an application. There is no
evidence on record to show that Govind Prasad had ever surrendered the
possession of the house to Saligram or his successors at any point of time or that
he had started living somewhere else. On the other hand, continuous living of
Govind Prasad in the house is established by the documentary evidence as well
as the oral evidence. The story put up by the appellants that the defendants
had taken possession on 7.7.1949 is false. The courts below on appreciation of
the evidence, oral as well as the documentary, have held that Govind Prasad and
his successors remained in possession of the house ever since 1928 and the
story put forth by the appellants and their predecessor that Govind Prasad had
taken forcible possession of the suit property on 7.7.1949 was incorrect and
false.
Besides this, documents Exhibits P-1 to P-9 indicate that a Criminal Case
No. 330 of 1949 under Sections 440, 505 and 332 of IPC was instituted by Baij
Nath on 8.7.1949 arraying the defendants as the accused. This case was decided
on 30.4.1952. Defendants- respondents were acquitted of the charge with the
observation that defendants respondents had not dispossessed the appellant
forcibly. This again shows that the defendant had not come in possession on
7.7.1949 as was projected by the plaintiffs appellant in the plaint.
Govind Prasad had filed civil suit 1-A of 1950 for partition of the joint
Hindu family property in the year 1950 between the two branches. The suit was
dismissed by Trial Court holding that the partition had already taken place
between the parties. The family had ceased to be joint and were in possession
of their respective shares. Counsel for the appellant argued that since the
defendants themselves had, in their suit filed in the year 1950, taken the
stand that the status of the family was joint, the question of their perfecting
title to the house by adverse possession is untenable. We do not find any merit
in this submission. In an appeal arising in the said suit, the High Court in
its order in First Appeal No. 14 of 1960 dated 16.2.1964 (Exhibit P-11) held
that the family had ceased to be joint and had separated. This finding of the
court that the families had separated in the year 1928 and were in possession
of the respective shares coupled with the fact that Saligram had admitted that
Govind Prasad had taken forcible possession of the house in dispute in the year
1928 clearly establishes that Govind Prasad and his successors have been in
continuous possession of the house since 1928 and the suit filed by the
plaintiff-appellant in the year 1955 is clearly barred by limitation.
The respondents have perfected their title by way of adverse possession.
Accordingly, judgment and decree passed by the courts below is affirmed and
the appeal is dismissed with no order as to costs.
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