Supreme Court of India
MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST & ANR versus SH. DIWAN CHAND (DEAD) THROUGH LRS & ORS. on 11 April 2023
366
[2023] 3 S.C.R.
AMURTI SHRI DURGA BHAWANI (HETUWALI) TRUST & ANR.
v.
SH. DIWAN CHAND (DEAD) THROUGH LRS & ORS.(Civil Appeal No. 6801 of 2010)
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APRIL 11, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Adverse possession – Ownership/title to property – Appellant,owner of land forming part of khasra No. 4833 – Suit for possessionCalleging that respondents had encroached the said land –Respondent’s case that they are in possession for the last 34 years;that they had become owners of the suit property by way of adversepossession and the suit property is not part of Khasra No. 4833 –Trial court decreed the suit for possession in favour of the appellantsand the respondents ejected from the suit property – However, theDlower appellate court set aside the order of the trial court on theground that the appellants failed to prove their title to the property– High Court upheld the order of the lower appellate court – Onappeal, held: On facts, the respondent failed to establish ownershipby way of adverse possession – Title and ownership to the suitEproperty established in favour of the appellants – Admissions andsubmissions by the respondent that property in dispute is part ofKhasra No. 4833 – Appellants have been admitted to be owner ofthe property being Khasra No. 4833 – This finding has even beenrecorded in the impugned order passed by the High Court as alsofirst appellate court – There is no challenge to the said finding byFthe respondents – Appellants have been non-suited on the groundthat the respondents are not in possession of any part of khasraNo. 4833 as the property in their possession is different – However,the findings recorded by the lower appellate court as well as theHigh Court are perverse if considered in the light of the materialGdocuments which are in the form of admission of respondentsthemselves regarding the identity of the property in their possession– As regards the plea of the respondents that they became owner ofthe property by way of adverse possession, the respondent lost onthis ground in the earlier litigation – Still further the plea of therespondents about adverse possession pre-supposes ownership ofH
the specific property of the appellants, which is claimed to be inpossession of the respondents – Thus, order passed by the HighCourt are set aside.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6801of 2010.
From the Judgment and Order dated 05.04.2010 of the High Courtof Punjab & Haryana at Chandigarh in RA No.25 of 2010 and RSA No.2306 of 1997.
With
Civil Appeal Nos. 6802, 6803 and 6804 of 2010.
Neeraj Kumar Jain, Sr. Adv., Rajinder Mathur, Ms. Tanuj BaggaSharma, Tarun Mathur, M K Ravi, Akshat Singhal, Siddharth Jain, Advs.for the Appellants.
Sanjay Parikh, Sr. Adv., Ms. Srishti Agnihotri, Satwik Parikh, Ms.Sanjana Grace Thomas, Ms. Mantika Vohra, A. N. Arora, Advs. for theRespondents.
The Judgment of the Court was delivered by RAJESH BINDAL, J.
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1. The plaintiffs are before this Court impugning the orders passedby the High Court in the Regular Second Appeal Nos. 2306 & 2307 of1997, which upheld the judgments and decrees of the Lower AppellateCourt, reversing that of the Trial Court in Suit Nos. 273 and 274 of 1989.The appeals filed by the appellants were dismissed. The orders dated5.4.2010 passed in Review Application Nos. RA-RS-25C & 26-C of2010 against the aforesaid appeals are also under challenge.
2. The case has a chequered history. However, the facts leadingto the present appeals are being noticed from Civil Appeal No. 6801/2010. However, wherever required, the previous litigation pertaining tothe said property shall be referred to.
3. The appellant is a registered Charitable Trust, which is theowner of the land forming part of Khasra No. 4833. A suit was filed bythe appellant on 26.5.1982 for possession. It was alleged that the landwas encroached upon by the respondents/defendants. The suit wascontested by the respondents/defendants raising objection that the A
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Aappellants/plaintiffs are not the owners of the property in dispute; theyhave no locus to file the suit; the defendants are in possession of theproperty for more than 34 years and running their business; and the suitproperty is not part of Khasra No. 4833. It was also pleaded that theyhad become owners of the suit property by way of adverse possession.
B4. The suit was decreed by the trial court vide judgment dated28.2.1991. The respondents/defendants were ordered to be ejected fromthe suit property. Appeal filed by the respondents/defendants, wasaccepted by the learned Additional District Judge. The judgment anddecree of the Trial Court was set aside primarily on the ground that theyhad failed to prove their title to the property.C5. The judgment and decree of the lower appellate court wasupheld by the High Court in appeal vide order dated 13.10. 2009 and theReview Application was also dismissed on 5.4.2010.
6. Mr. Neeraj Jain, learned senior counsel appearing for theDappellants submitted that the trial court, while appreciating the evidence,had rightly decreed the suit. However, on a misreading of the evidence,the first appellate court had reversed those findings. High Court also fellin error in upholding the judgment of the Lower Appellate Court. Hefurther submitted that before the Trial Court, during the course of arguments, learned counsel appearing for the respondents/defendantsEhad categorically admitted that the disputed site is part of Khasra No.4833. In fact, plea of adverse possession could be raised only if theownership of property is not in dispute. The High Court also recorded acategoric finding that Khasra No. 4833 belongs to the appellants.However, the relief was denied to the appellants only on the ground thatFthe identity of the property was in dispute. The High Court was of theopinion that it is not forming part of Khasra No. 4833. The finding of theHigh Court that Khasra No. 4833 is owned by the appellants/plaintiffshas not been challenged by the respondents.
7. He further submitted that an application was filed by the GRespondents on 2.8.1993 before the Tehsildar-cum-Assistant Collector,2[nd] Grade, Karnal for correction of Khasra Girdawari from Rabi 1990onwards. A categoric admission was made by the respondents thereinthat the area in possession of the respondents was part of Khasra No.4833 and they are in possession thereof, which is evident from Jamabandifor the year 1994-95. The report of the Local Commissioner, submittedH
MURTI SHRI DURGA BHAWANI (HETUWALI) TRUST v. SH.DIWAN CHAND (DEAD) THROUGH LRS [RAJESH BINDAL, J.]
in a different litigation i.e. Civil Suit No. 371 of 1981, which was reliedupon by the Lower Appellate Court (Ex. D-16), was without ascertainingany pucca points. He further referred to document at page 97 of thepaper book whereby the respondents submitted building plans to theMunicipal Committee for the property in dispute specifically mentioningthat it is part of Khasra No. 4833. With the aforesaid material on record,the findings recorded by the lower appellate court as well as the HighCourt that identity of the property was in dispute, are totally perverse, asit was the admitted case of the respondents themselves that property intheir possession was part of Khasra No. 4833.
8. It was also argued that earlier the respondents, namely, SunderDass and Gopal Singh had filed Civil Suit No. 371 of 1981 on 29.05.1975for permanent injunction restraining Bhagwat Sarup, Anand Sarup andPt. Har Sarup from dispossessing them from the suit property and theplea of adverse possession was also raised. As far as the plea of adversepossession is concerned, the findings were against the presentrespondents/the plaintiffs therein whereas decree of permanent injunctionwas passed on account of long possession of respondents holding thatthey cannot be dispossessed except in due course of law. It was withreference to the same suit property. The suit was partly decreed on30.09.1981.
9. On the other hand, Sh. Sanjay Parikh, learned senior counselappearing for the respondents submitted that it is too late for the appellantsto raise all the factual issues before this Court. There is concurrentfinding of facts recorded by both the courts below in favour of therespondents and there is nothing on record to dislodge that finding. Therespondents are unnecessarily being dragged in litigation. The report ofthe Local Commissioner dated 2.12.1978, already on record, clearly pointsout that the premises in possession of the respondents is not part ofKhasra No. 4833, rather it is 434 feet beyond that. New issues aresought to be raised before this Court, which cannot be permitted. Therespondents are in possession of the property for the last more than 34years. In fact, even in the appeal before the High Court, no substantialquestion of law was framed and there is no legal issue as such, whichrequires determination by this Court.
10. We have heard learned counsel for the parties and perusedthe relevant material on record.
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11. From the judgments on record it is evident that a judgment anddecree dated 30.7.1965 was passed in favour of the predecessors ininterest of the appellants inHarsarup vs. Municipal Committeeby SubJudge, Karnal. (Suit No. 292 of 1962)
12. The appellant filed a petition for execution of the aforesaidBdecree against the Municipal Committee for the2 disputed property inthe year 1974. The predecessor-in-interest of the respondents were alsoimpleaded as respondents in the Execution Petition as they wereobstructing the execution of decree and trying to raise constructionthereon.
C13. A Local Commissioner was appointed in the aforesaid executionproceedings, who after visiting the site, submitted his report on 19.1.1975before the Court. In the report, he stated that the shops in questionconstructed by the respondents are built on Khasra No. 4833. Nothingwas pointed out from record about the status of the aforesaid executionproceedings.D
14. As has been noticed by the Lower Appellate Court in judgmentdated 16.1.1997 that during the course of proceedings in the aforesaidExecution Petition, the respondents were allowed to raise constructionon an undertaking given by their predecessor-in-interest that in casethey lose, they will not claim any compensation.E
15. During the pendency of the aforesaid execution petition, thepredecessor-in-interest of the respondents filed a suit bearing No. 371/1981 against Bhagwat Sarup, Trustee of the appellant Trust. In the saidsuit, two main issues were framed, namely, whether the plaintiffs thereinhad become owners of the property by way of adverse possession andFthe second was as to whether the plaintiffs are bound by the decree inSuit No. 292 of 1962, Harsarup vs. Municipal Committee, Karnal.The mere fact that the predecessor-in-interest of the respondents hadfiled the suit claiming ownership of the property on the basis of adversepossession, pre-supposes that the ownership of the appellants on the suitGproperty was admitted. In any case, the issue regarding the predecessor-in-interest of the respondents having become owner of the property indispute by way of adverse possession was decided against the plaintiffstherein. It was specifically held that the plaintiffs in the aforesaid suithad failed to prove their adverse possession. Finally, the plaintiffs thereinpartly succeeded as only a decree of permanent injunction was passedH
in their favour restraining the defendants therein from interfering in theirpossession except in due course of law on 30.09.1981. In the aforesaidsuit Sadar Kanoongo was appointed as Local Commissioner. He hadgiven his report on 02.12.1978 stating that property in possession of therespondents was 434 ft. away from Nala. The report did not even mentionabout Khasra No.4833. No pucca points were mentioned. It was asvague as possible. The decree attained finality.
PRESENT LITIGATION
16. The Trust filed a Civil Suit No. 273 of 1989 on 26.5.1982 forpossession. The main reliance of the respondents was on the report ofthe Local Commissioner submitted in earlier Suit No. 371/1981 filed bythe respondents. A perusal of the report of the Local Commissionerdated 2.12.1978 shows that the pucca points were not ascertained beforecarrying out the measurements. In the abvoesaid report, where Kanoongowas the Local Commissioner, the finding was given that the property indispute was located 434 ft. beyond naala. The site plan was also annexedwith the report in which except showing the road and a naala, no khasranumbers were mentioned to identify the property properly. The fact thatthere was already a report of Local Commissioner dated 19.1.1975pertaining to the same property, was not even referred to. This was areport by the Local Commissioner appointed in the Execution Proceedingsfiled by the predecessor-in-interest of the appellant, in which predecessor-in-interest of the respondents were also party. This report inspiresconfidence as before carrying demarcation of the property pucca pointswere marked and specific khasra no.4833 was measured. Proper planis also annexed with the aforesaid report.
17. The stand taken by the defendants in the present suit was thatthey are in possession for the last 34 years. The suit property is not partof Khasra No. 4833 and further that they had become owners of theproperty by way of adverse possession. The suit was finally decreed infavour of the appellants. In para 13 of the judgment, the trial court recordedthe statement made by the learned counsel appearing for the defendantsthat the suit property is part of Khasra No. 4833. The same reads asunder :- “13. During the course of arguments, Sh. T.P.S. Bedi Adv. hasconceded this fact that the disputed site is part of Khasra No.4833. No doubt, he has at one stage argued that the identity of the A
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Aproperty is not established but since he has conceded this factthat the disputed site is part of Khasra No. 4833 there is nonecessity to look into the evidence that it is not within Khasra No.4833.”
18. As far as the plea raised by the defendants therein regardingBthey becoming the owner of the property by way of adverse possession,the finding was that in the earlier litigation, the defendants had alreadylost on that ground alone (Ref. Suit No. 371/1981). The aforesaid twofacts clearly established the identity of the property.
19. Another fact which clearly establishes that it was the admittedCcase of the respondents herein that the property in dispute is part ofKhasra No. 4833 is evident from an application filed by the predecessor-in-interest of the respondents before the Tehsildar-cum-AssistantCollector on 2.8.1993 seeking correction of Khasra Girdawari, whereinit was claimed that the applicants were the owners in possession of theshops since 1950 and the same was part of Khasra No. 4833. TheDAssistant Collector, Second Grade, Karnal, vide order dated 17.2.1994directed for correction of Khasra Girdawari holding that the applicantstherein/predecessor-in-interest of the respondents were in possessionof part of Khasra No. 4833.
20. Aggrieved against the judgment and decree of the trial courtEdated 28.2.1991, the predecessor-in-interest of the respondents filedappeal. The same was allowed by the learned ADJ vide judgment anddecree dated 16.1.1997. In para 14 of the judgment, while referring toSuit No. 292 of 1962, the opinion expressed by the First Appellate Courtwas that the appellants were co-owners of Khasra No. 4833. However,Frelying upon the report of the Local Commissioner dated 2.12.1978, itwas opined that the suit property being different and the present appellantsnot being the owners thereof, they are not entitled to any relief.
21. The appellants challenged the judgment and decree of thelower appellate court by filing RSA No. 2306/1997 before the High CourtGof Punjab and Haryana. Even in the order passed by the High Courtdismissing the appeal, it has been specifically recorded that undisputedly,the appellants are the owners of Khasra No. 4833. Still referring to thereport of the Local Commissioner dated 2.12.1978, the appellants wereheld not to be entitled to any relief. Even the Review Application filedHagainst the aforesaid judgment was dismissed.
22. It is evident from the facts, which have come on record in thepresent litigation, that the appellants have been admitted to be owner ofthe property being Khasra No. 4833. This finding has even been recordedin the impugned order passed by the High Court dismissing the SecondAppeal. There is no challenge to the aforesaid finding recorded by theHigh Court by the respondents. In fact, they could not as there wasadmission of the respondents to that effect before the Trial Court aswell.
23. The only issue on which the appellants have been non-suitedis that the respondents are not in possession of any part of Khasra No.4833 as the property in their possession is different. However, on thatissue as well, the findings recorded by the lower Appellate Court as wellas the High Court are perverse if considered in the light of two materialdocuments which are in the form of admission of respondents themselvesregarding the identity of the property in their possession. First being thestatement of the counsel for the respondents made before the Trial courtas has been noticed in para no. 17 above and second is the applicationfiled by the respondents before the Tehsildar-cum-Assistant Collectorfor correction of Khasra Girdawari specifically admitting that they arein possession of part of Khasra No. 4833. In addition to that, there is areport of the local Commissioner dated 19.1.1975 submitted by the NaibTehsildar. It was in the execution petition filed by the predecessor-in-interest of the appellants of the decree passed in his favour inHarsarupvs. Municipal Committeeby the Sub Judge, Karnal. Still further theplea of the respondents about adverse possession pre-supposes ownershipof the specific property of the appellants, which is claimed to be inpossession of the respondents.
24. For the reasons mentioned above, the order passed by theHigh Court dismissing the review applications and appeals filed by theappellants and the judgments and decrees of the Lower Appellate Courtcannot be legally sustained and the same are set aside and the appealsare allowed. The judgments and decrees passed in Suit Nos. 273 and274 of 1989 by the trial court are restored.
25. The decree sheet be prepared.
Nidhi Jain
Appeals allowed.
(Assisted by : Shraddha Singh and Tamana, LCRAs)
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