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2010 Supreme(P&H) 2626
PUNJAB & HARYANA HIGH COURT
Gurdev Singh, J.
Om Parkash
Versus
Thana Ram And Others
RSA No. 762 of 2005,
Decided On : SEPTEMBER 13, 2010
The court emphasized the importance of providing parties with sufficient opportunity to produce evidence and highlighted the penal nature of procedural orders, emphasizing the need for justification based on sufficient material.
Headnote:
Adverse Possession - Property Dispute - [Order 17 Rule 3 of the Code of Civil Procedure] - The court discussed the plaintiff's claim of adverse possession and the defendants' counterclaim for recovery of possession. The court set aside the judgment and decree of the trial court and the appellate court, remanding the suit to the trial court for a fresh decision after granting the plaintiff one effective opportunity to produce evidence.
Fact of the Case:
The plaintiff filed a suit for declaration of ownership and permanent injunction over a disputed land, claiming adverse possession. The defendants contested the suit and made a counterclaim for recovery of possession.
Finding of the Court:
The court found that the plaintiff was not given sufficient opportunity to produce evidence and set aside the previous judgments, remanding the suit to the trial court for a fresh decision after granting the plaintiff one effective opportunity to produce evidence.
Issues: The issues included ownership based on adverse possession, maintainability of the suit, locus standi, estoppel, agreement to sell, possession entitlement, and court fee payment.
Ratio Decidendi: The court emphasized the penal nature of Order 17 Rule 3 of the Code of Civil Procedure and the need for sufficient material to justify closing of evidence. It also highlighted the importance of doing justice to the parties by deciding matters on merits and not denying decisions on technicalities.
Final Decision: The appeal was accepted, and the judgment and decree of the trial court and the appellate court were set aside. The suit was remanded to the trial court for a fresh decision after granting the plaintiff one effective opportunity to produce evidence.
Gurdev Singh, J.
1. Appellant/plaintiff-Om Parkash, has preferred this second appeal against the judgment and decree dated 24.8.2004 passed by the District Judge, Ambala, vide which he dismissed the appeal preferred by the plaintiff against the judgment and decree dated 4.9.2003 passed by the Civil Judge (Jr. Divn.) Ambala, dismissing his suit for declaration to the effect that he has become the owner in possession of the land, in dispute, measuring 6 kanals 3 marlas, situated in village Gadhauli, Tehsil Naraingarh, District Ambala, and for permanent injunction restraining the respondents/defendants from dispossessing him from this land and also from transferring or alienating the same in any manner whatsoever.
2. The case pleaded by the plaintiff in the plaint is that Thane Ram-defendant No.l was the owner of the land in dispute and he is coming in possession thereof since Kharif 1982 and entries to that effect have already been incorporated in the khasra girdawari as gair maroosi nazayaz kasat. He is coming in possession, as such, for the last 13 years without payment of any rent to any person, including defendant No.l. His possession has also been reflected in the jamabandies for the years 1986-87 and 1991-92. His possession was open, hostile and continuous against the entire world, including the defendants, for the last 13 years and, as such, the same has matured into ownership. He made request to the defendants to acknowledge his ownership but they refused, which necessitated the filing of the suit for declaration and permanent injunction. The suit of the plaintiff was contested by the defendants. In the written.statement they denied the contentions of the plaintiff and pleaded that defendant No. 1 is the owner of the land in dispute which had been allotted to him in lieu of his land left in erstwhile Pakistan and the same is being managed by defendant No.2 on his behalf, who has been appointed as general attorney. It is defendant No.l, who is coming in. possession of the land in dispute. The entries in the khasra girdwari and the jamabandi, in the column of possession, are illegal without any basis and have been made without their knowledge. The plaintiff himself admitted defendant No.l to be owner in possession of this land by entering into an agreement dated 6.3.1995. Vide that agreement, he agreed to purchase the land in dispute for a sum of Rs. 70,000/- and paid Rs. 15,000/- as earnest money. Though defendant No. 1 had always been ready and willing to perform his part of the contract, yet the plaintiff failed to perform his part of the contract, as he failed to pay the balance sale consideration and on account of failure to perform his part of the contract, the earnest money so paid by him stood forfeited. The defendants made a counter claim in their written statement for the recovery of the possession of the land in dispute from the plaintiff on the ground that he is in unauthorized possession thereof and that the unauthorized possession of the plaintiff came to their knowledge when they visited the village.
3. In replication to the written statement, the plaintiff denied the contentions raised therein and reiterated his averments made in the plaint. He denied that any such agreement was so executed by defendant No.l in his favour.
4. On the pleadings of the parties, the following issues were framed:-
"1. Whether the plaintiff is the owner in possession of the suit property on the basis of adverse possession ? OPP
2. Whether the suit is not maintainable in the present form ? OPD
3. Whether the plaintiff has no locus standi to file the present suit ? OPD
4. Whether the plaintiff is estopped by his own acts and conduct to file the present suit? OPD
5. Whether the plaintiff had entered into an agreement to sell with defendant No.l for the sale of this land ? OPD
6. Whether the defendant No.l has always been ready and willing to perform his part of the agreement ? OPD
7. Whether defendant No.l is entitled to the
