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Himachal Pradesh High Court
M. H. BEG
Moti - Appellant
Versus
Roshan - Respondent
Decided On : 03/10/1971
ADVERSE POSSESSION - LIMITATION ACT, 1963 - SECTION 3, 28 - H.P. (COURTS) ORDER, 1948 - PARAGRAPH 32 - DELHI HIGH COURT ACT, 1966 - SECTION 17 - STATE OF HIMACHAL PRADESH ACT, 1970 - SECTION 23, 25 - CIVIL PROCEDURE CODE, 1908 - ORDER 6, RULE 2, ORDER 10, RULE 1, ORDER 21, RULE 35 - PUNJAB LAND REVENUE ACT - SECTION 141 - MERGED STATES (LAWS) ACT, 1949 - HIMACHAL PRADESH LAND REVENUE ACT, 1953 - SECTION 45 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 123 - HINDU LAW - GIFT - DELIVERY OF POSSESSION - ESSENTIAL TO COMPLETE GIFT - REGISTRATION OF DEED OF GIFT - INSUFFICIENT TO OVERCOME DEFECT OF WANT OF DELIVERY OF POSSESSION - ADVERSE POSSESSION - RUNNING OF TIME - NOT STOPPED BY MERE DECREE - ACTUAL EFFECTIVE ASSERTION OF RIGHTS AND TAKING POSSESSION OF THESE RIGHTS NECESSARY - SYMBOLICAL POSSESSION - SUFFICIENT TO INTERRUPT ADVERSE POSSESSION - WHERE PERSON SETTING UP ADVERSE POSSESSION IS PARTY TO EXECUTION PROCEEDINGS IN WHICH SYMBOLICAL POSSESSION IS GIVEN - DELIVERY OF POSSESSION THROUGH BAILIFF - ILLEGAL AND NOT IN ACCORDANCE WITH PROCEDURE LAID DOWN BY ORDER 21, RULE 35, CIVIL PROCEDURE CODE, READ WITH SECTION 141 OF PUNJAB LAND REVENUE ACT - NO FORMAL OR SYMBOLICAL POSSESSION DELIVERED - MUTATION PROCEEDINGS - NOT EVIDENCE OF COMPLETED GIFT - NO TANGIBLE EVIDENCE OF POSSESSION OF LAND IN DISPUTE - ENTRY IN RECORD OF RIGHTS - NOT PRESUMED TO BE TRUE - WHERE MADE DURING PERIOD BETWEEN 1ST APRIL, 1948 AND 1ST APRIL 1956 AND LAND SHOWN AS UNDER SELF-CULTIVATION - FAILURE TO PRODUCE DONOR - ADVERSE INFERENCE - RECEIPTS FOR PAYMENT OF LAND REVENUE DURING PENDENCY OF SUITS - SUSPICIOUS AND UNSATISFACTORY - GIFT - DELIVERY OF POSSESSION - ESSENTIAL TO COMPLETE GIFT - REGISTRATION OF DEED OF GIFT - INSUFFICIENT TO OVERCOME DEFECT OF WANT OF DELIVERY OF POSSESSION.
Fact of the Case:
Plaintiff-appellant sued for declaration and joint possession of land, 62 Bighas and 1 Biswa in area situated in Mauza Devki, Pargana Bharmour, in Khata No. 62 Khatauni No. 92 Khasra Nos. 1134, 1135, 1140, 1142, 1144, 1147 to 1150, 1166 and 1168. The only basis of his claim disclosed in the plaint dated 12-12-1957 was that he was entered as owner of a half of the above-mentioned land and that the defendants were entered as owners of the other half. The defendants denied the right and title of the plaintiff to any part of the land in dispute despite the entry of his name in the revenue records which according to the defendants, was erroneous. The plaintiff is a nephew of Chand mentioned above. He set up, in the course of evidence, a right flowing from a gift by Smt. Diukari, the widow of Chand, who was alive at the time when the suit was brought and is presumably still alive but was not examined as a witness.
Finding of the Court:
The plaintiff failed to prove that he ever became a co-sharer of the plots in dispute as a result of any legally valid transaction. The mutation proceedings did not evidence a completed gift by Smt. Diukari to the plaintiff in 1954. There was no tangible evidence, apart from the assertions of the plaintiff, that either Smt. Diukari or the plaintiff himself ever obtained possession of any part of the land in dispute. The entry in the record of rights was not presumed to be true as it was made during the period between 1st April, 1948 and 1st April 1956 and the land was shown as under self-cultivation. The failure of the plaintiff to produce Smt. Diukari, from whom he claimed to have derived his right and title, was not insignificant and provided a good ground for the adverse inference drawn by the District Judge against the plaintiff.
Issues: Whether the plaintiff-appellant had proved his subsisting title and possession of the land in dispute?
Ratio Decidendi: A suit should not fail for mere vagueness or uncertainty in pleadings which ought to be interpreted liberally in this country. However, complete absence of material facts and particulars, which may prejudice another party, is a different matter. It is the duty of the trial Court to scrutinize the pleadings carefully and to require statements of material facts and particulars where pleadings are not fair and precise enough and particulars may be required. In the instant case, particulars of the basis of the right of the plaintiff will certainly include some particulars of the manner in which he obtained an alleged gift and possession of the disputed land from Smt. Diukari and also of her own right to make such a disposition of the property. The plaintiff had not disclosed these material facts as required by Order 6, Rule 2, Civil Procedure Code. The trial Court did not either call for necessary particulars or record statements of counsel under Order 10, Rule 1, Civil Procedure Code, in order to ascertain the exact nature of the questions involved on which evidence was to be led. It admitted evidence tendered by the plaintiff in support of his title without considering its admissibility or relevance. The result was that the trial Court was misled into assuming that a connection had been established between property involved in the former suit filed by Smt. Diukari against Saraf and the land in dispute in the instant case.
Final Decision: Appeal dismissed with costs.
JUDGMENT :- The plaintiff-appellant had sued for declaration and joint possession of land, 62 Bighas and 1 Biswa in area situated in Mauza Devki, Pargana Bharmour, in Khata No. 62 Khatauni No. 92 Khasra Nos. 1134, 1135, 1140, 1142, 1144, 1147 to 1150, 1166 and 1168. The only basis of his claim disclosed in the plaint dated 12-12-1957 was that he was entered as owner of a half of the above-mentioned land and that the defendants were entered as owners of the other half. The defendants, who are the sons of a man called Saraf and grandsons of Chand, denied the right and title of the plaintiff to any part of the land in dispute despite the entry of his name in the revenue records which according to the defendants, was erroneous. The plaintiff is a nephew of Chand mentioned above. He set up, in the course of evidence, a right flowing from a gift by Smt. Diukari, the widow of Chand, who was alive at the time when the suit was brought and is presumably still alive but was not examined as a witness. His case, taken up in evidence, was that Smt. Diukari, the step-mother of Saraf, had been given the land in dispute under a will made by Chand. It was also submitted that Smt. Diukari had already obtained possession of the land in dispute against Saraf after filing a suit in 1942 against Saraf who had been disinherited by Chand.
2. An examination of the plaint in the instant case discloses an attempt to overcome the defect that the plaintiff was actually out of possession. After asserting that the plaintiff and the defendants were co-owners presumably by reason of the entries as co-owners in the revenue record only, the plaintiff went on to assert that the defendants were refusing to give him his rights as a co-owner and excluding him from actual possession so that he was compelled to bring the suit. It seems to me that the following observations made by Sulaiman, C. J. in Bindhyachal v. Ram Gharib, AIR 1934 All 993 (FB) at p. 998, are applicable to cases of this very type:
"Personally speaking, I do not think that the plaintiff can by cleverly drafting his plaint evade the burden of proof which Article 142 casts upon one who is suing for possession on the ground of dispossession. When a plaintiff falsely alleges that he is in possession and wants a relief, to which the owner in possession is entitled, e.g., for partition, injunction, joint possession etc., and it is found that he was in fact not in possession but had been dispossessed, technically speaking the suit would fall under Section 42, Specific Relief Act, and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case. But, a Court may allow him to change his ground and give him a decree for possession, treating his claim as one for recovery of possession on the basis of dispossession, provided he succeeds in showing that his dispossession took place within 12 years. In such a case, the claim would still be regarded as a claim either on the basis of dispossession or discontinuance of possession and the same principles would govern such a suit."
3. Although the Senior Subordinate Judge, Chamba, who tried the suit, framed an issue on adverse possession governed by Article 144, Limitation Act only, and, thereby placed the burden of proving such adverse possession upon the defendnnts, the first issue framed relates to the alleged right and title of the plaintiff as owner and the burden of proving this certainly lay on the plaintiff. In my opinion, the learned Judge ought to have framed another issue and placed the burden of proving his own possession within 12 years also on the plaintiff. However, inasmuch as the effect of Sections 3 and 28 of the Limitation Act is to make it obligatory upon the plaintiff to prove, as a part of the burden of proving his subsisting title, that a suit on the basis of dispossession is not barred by time, it could be said that Issue No. 1 covers the defendants' objection that the plaintiff
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