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SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Dharampal(Dead) Thr. LRs. –Appellant(s)
VERSUS
Punjab Wakf Board & Ors. – Respondent(s)
CIVIL APPEAL No. 2571 OF 2008
Decided On : 13-09-2017
(b) Code of Civil Procedure, 1908 – Order IX rule 3, 4, 8 and 9 – If a suit is dismissed u/r 3, filing of a fresh suit is not barred u/r 4 – If a suit is dismissed u/r 8, filing of fresh suit is barred u/r 9– Instantly, earlier suit dismissed u/r 3 – Therefore filing of fresh suit was not barred – Further, earlier suit being against only one defendant, fresh suit against many defendants was not barred. (Para 28, 29, 30)
(c) Adverse possession – Cannot be set up by way of counter claim to claim ownership because counter claim is treated as a plaint – Order VIII, Rule 6-A (4), Code of Civil Procedure, 1908. (Para 32, 33)
(2014) 1 SCC 669 – Relied upon
(d) Adverse possession – Averment that defendant was in possession through his father since 1953 – Do not constitute plea of adverse possession – Date from which possession became adverse to plaintiff not pleaded – Date of ripening of adverse possession also not pleaded – Plaintiff filing suit in 1971 and again in 1991 – No question of perfecting tile qua plaintiff period of limitation being 30 years for Wakf |board – Section 66-G, Wakf (Amendment) Act, 1984. (Para 39, 40)
(2006) 7 SCC 570; (2010) 14 SCC 316 – Relied upon
(e) Wakf Act, 1954 – Section 55-C – Bar on jurisdiction of civil court – Plea not raised before courts below – Further, in absence of notification the provision never coming into operation – Plea not tenable. (Para 44. 45)
Facts of the case:
Respondent No.1 is the owner of the suit lands.
One Ram Swarup, who was father of original defendant No.1 (appellant herein), occupied unauthorizedly some part of the suit land and later encroached the entire suit land. This he did somewhere in 1953 and onwards.
Respondent no 1 filed a civil suit in 1971 against Ram Swarup for recovery of possession of the suit land illegally occupied by him which was dismissed in default for 28.03.1972 by the Trial Court.
On 27.11.1991, respondent No.1 (Wakf Board) filed the present suit for possession and injunction restraining the defendants from changing the nature of the land and from making any construction over the suit land, which are open fields.
The Trial Court held that defendant No.1 has perfected his title over the suit land by virtue of his “adverse possession” as against the plaintiff (Wakf Board) and hence declaratory decree was passed in favour of defendant No.1 and against the plaintiff declaring defendant No.1 as owner of the suit land on the strength of his "adverse possession" over the suit land. The plaintiff suit was dismissed.
The first Appellate Court allowed the first appeal and while reversing the judgment/decree of the Trial Court, dismissed the counter-claim of defendant No.1 and, in consequence, decreed the plaintiff's suit declaring Wakf Board to be the owner of the suit land and accordingly passed the decree for recovery of possession of the entire suit land against all the defendants.
Defendant No.1 alone filed second appeal before the High dismissed.
Finding of the Court:
There is no merit in the appeal.
Result: Appeal dismissed.
JUDGMENT
Abhay Manohar Sapre, J.
1. This appeal is filed by defendant No.1 against the final judgment and order dated 17.09.2002 passed by the High Court of Punjab & Haryana at Chandigarh in RSA No. 4830 of 1999 whereby the High Court dismissed the appeal filed by the original appellant (defendant No.1) thereby upholding the judgment and order dated 28.10.1999 of the Additional District Judge-I, Faridabad in C.A. No.82 of 1998 which reversed the judgment/decree dated 12.08.1998 passed by the Civil Judge(Jr. Division), Faridabad in Case No. 419 of 1991 which had dismissed the plaintiff’s suit and decreed the counter-claim of defendant No.1 in relation to suit lands.
2. In order to appreciate the controversy raised in the appeal, it is necessary to state the relevant facts hereinbelow.
3. Dharampal-the original appellant herein (since dead and represented now by the present appellants as his legal representatives) was defendant No.1 whereas respondent No.1 herein is the plaintiff and respondent Nos.2 and 3 are defendant Nos. 2 and 3 in the suit out of which this appeal arises.
4. Respondent No.1 (plaintiff) is the Wakf Board registered under the Wakf Act, 1954 (hereinafter referred to as “the Act) having its office at Ambala Cantt. (Haryana) and a Branch at Faridabad. Respondent No.1 is the owner of huge parcel of land around total 14 fields measuring 54 Kanals 13 marlas situated in village Uncha Gaon, Tahsil Ballabgarh, District Faridabad (hereinafter referred to as "suit land"). The details of the suit land are set out hereinbelow:
“i) Comprising in Khewat No.713, Khatoni No.974, rect. No.38, Kila Nos.20(2-18), 21(7-9), 22/1(1-4), rect.No.47, Kila Nos.5 min (0-18), rect.39, Kila Nos.25(5-4), rect.No.48, Kila Nos.1 min(3-4), 2/1 min(1-2) and Khatoni No. 975, rect. No.48, Kila No.1 min(2-13), 2/1 min (4-5) fields 9, measuring 28 kanals 17 marlas, and
ii) Khewat No.713, Khatoni No.970, rect.No. 39, Kila No.16(5-10), rect. No.47, Kila No.5(6-5) fields 2, measuring 11 kanals 15 marlas, and
iii) Khewat No. 713, Khatoni No.971, rect.No.88 min(11-5) rect. No.89(2-15) and rect. No.133(0-1), fields 3, measuring 14 kanals 1 marla, and thus total fields 14 measuring 54 kanals 13 marlas situated within the revenue estate of village Uncha Gaon, Tehsil Ballabhgarh, District Faridabad. The copy of jamabandi for the year 1985-86 is attached herewith the plaint.”
5. Long back, respondent No.1 had let out the land specified in clause (i) to respondent Nos.2 and 3 for one year. However, on the expiry of period of one year, the lease was not renewed. Respondent Nos.2 and 3, however, continued to remain in occupation of the suit land. In the meantime, one Ram Swarup, who was father of original defendant No.1 (appellant herein), occupied unauthorizedly some part of the suit land and later encroached the entire suit land. This he did somewhere in 1953 and onwards.
6. This gave rise to filing of a civil suit (74/1971) by respondent No.1 (Wakf Board) against Ram Swarup for recovery of possession of the suit land illegally occupied by him. This suit was filed in the year 1971. It was, however, dismissed in default for 28.03.1972 by the Trial Court.
7. On 27.11.1991, respondent No.1 (Wakf Board) filed the present suit being suit No.419/1991 in the Court of Civil Judge (Junior Division), Faridabad against the original appellant (defendant No.1) -son of Ram Swarup and also against respondent Nos.2 and 3 (defendant Nos.2 and 3), out of which this appeal arises.
8. The suit was for possession and injunction restraining the defendants from changing the nature of the land and from making any construction over the suit land, which are open fields.
9. The suit was founded on the allegations inter alia that, respondent No.1 is the exclusive owner of the suit land, part of the suit land, as specified in the plaint (Para 3), had been given for a period of one year on rent to respondent Nos.2 and 3 (defendant Nos.2 and 3) but on the expiry of one year, this period was
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