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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amol Rattan Singh
RSA No.3809 of 2013 (O&M)
Satnam Singh
v.
Jit Ram
{Decided on 28/03/2019}
(A) Limitation Act, 1963, Art.65--Adverse Possession--Suit for Ownership--If a person has remained in possession for a long time, claiming documentary title to a property but eventually is unable to prove that title, he can also take an alternative plea of having been in adverse possession thereof open and hostile to the true owner, by which he has perfected his title to the property in any case--Specific Relief Act, 1963, S.34. (Para 46)
(B) Limitation Act, 1963, Art.65--Adverse Possession--Revenue Records--Plea of adverse possession, the ownership and title to the suit property is in any case not in doubt; it is only the occupation thereof for a sufficiently long period of time that has to be proved by a defendant who claims to have perfected his title thereto by way of adverse possession--Therefore, presumption of truth attached to record of rights is not to be considered. (Para 54)
(C) Limitation Act, 1963, Art.65--Adverse Possession--Parties are cousins brothers--Appellant-plaintiff having proved himself to be in possession of the suit property alongwith his aunt (daughter of original owner), (till her death and after that on his own), right since 1989--Such possession obviously was open and hostile to the knowledge of the respondent-plaintiff, who did not dare to challenge his father’s (original owner) action in not resisting the construction made by the appellant for himself and his Aunt; but chose to start claiming the property more than 11 years after his father’s death and 14 years after the appellant-plaintiff came to be in possession thereof--His father in any case did not oppose the construction, or challenge it in a court of law--Appellant held to have become owner of suit property by way of adverse possession. (Para 55)
Yet, as already noticed hereinabove, the possession of the appellant over the suit property, is not stated to be adverse to just Banta, who seemingly at least had allowed his daughter and grand-son to construct thereupon and to live in the property, but essentially qua the respondent-plaintiff who, being the uncle of the appellant-defendant, is not shown to be younger than him, and therefore was definitely not shown to be a minor at the time when either his father died or even prior to that in 1989 when the construction is stated to have taken place. Hence, if he had any grievance with regard to his father handing over the suit property to his aunt and his grand-son who were living together, or allowing the appellant to construct upon it, in my opinion, he could have very easily challenged that action by Banta at that time itself, instead of letting more than 11 years go by after Banta died to institute the suit, just short of 12 years elapsing and then claiming that 12 years had not gone by since he had become the owner of the suit property. Therefore, with nothing having been pointed out even from the plaintiffs’ own evidence that the construction did not take place in 1989, then naturally, if he was in any manner aggrieved of the occupation of his fathers’ suit property by his sister and his nephew, he should have challenged the same by 2001 positively, i.e. within 12 years of such occupation and not two years thereafter. Correctly, actually he should have challenged it during his fathers’ life time, by impleading his father as a defendant to protest against his father giving away any property to Sibo, i.e. his fathers’ daughter and appellant-plaintiff, (or in not resisting the construction being raised by them). However, he never did that when Banta was alive. (Para 53)
JUDGMENT
Mr. Amol Rattan Singh, J.:- This regular second appeal has been filed by the defendant in a suit instituted by the respondent herein (now represented by his LRs), by which he sought possession of a house marked as ABCD, shown in red in the site plan annexed with the plaint.
The suit was dismissed by the learned trial court (Additional Civil Judge (Senior Division), Garhshankar), with that judgment and decree however reversed by the learned 1st appellate court, thereby decreeing the suit in favour of the respondent-plaintiff, leading to the filing of this appeal by the defendant.
2. As per the case of the respondent herein (plaintiff), he and his father Banta constituted a Joint Hindu Family, with the suit property being owned and jointly possessed by hem ‘as co-parceners’.
Banta died on 02.07.1992 leaving behind the plaintiff as his sole legal heir and as such the plaintiff claimed that he had become the owner of the suit property.
He also stated in the plaint that his sister, Sibo, was abandoned by her husband after marriage and therefore she was residing in the suit property with their father, i.e. Banta, with the defendant (present appellant) being the son of another sister of the plaintiff (not the son of Sibo).
3. The plaintiffs’ claim was that a mutation of inheritance having been sanctioned qua the estate of his father in his (plaintiffs’) favour, his sister, Sibo, instituted Civil Suit no.143 of 1993 against him and others, qua the estate of Banta, with that suit having been dismissed on 28.04.1998.
Sibo is stated to have died during the pendency of that suit, with the appellant herein having thereafter contested it as her legal representative. The appeal filed by him before the Additional District Judge in that suit was also however dismissed on 14.01.2003, with that judgment and decree having become final.
Hence, the plaintiff (respondent herein) claimed in the current lis that he was rightly recorded as the sole owner of the entire estate of his father, Banta, including the suit property.
4. The next contention of the plaintiff was that the appellant herein belongs to village Ispur, Tehsil Garshankar but had started residing with Sibo, which however did not vest him with any right, title or interest in the house in dispute, over which his possession was illegal and that of a trespasser.
Consequently, on the aforesaid contentions, the plaintiff, claiming to be the sole owner of the suit property, sought its possession vide the suit instituted in the present lis.
5. Upon notice issued to him, the appellant-defendant appeared and filed a written statement before the trial court, taking an objection that the plaintiff has no locus standi or cause of action, with the suit also not being maintainable, it also being barred by limitation.
He also claimed that it was not valued properly for the purpose of court fee and further, that the suit property did not bear Khasra no.580/321, 578/321 and 576/321, as was contended in the suit.
On the merits of the plaint, the appellant denied that the plaintiff was the owner of the suit property marked as ABCD.
He further stated that he was residing with his maternal grandfather, i.e. the father of the plaintiff, as also with his maternal aunt, Sibo, from the date of his birth and further, that the site beneath the house was a low lying vacant land (Taur) that was in the ownership of Banta.
In April 1989 he (the present appellant-defendant) had requested Banta to give the site or any other site to him to construct his house because his family had increased due to the birth of his children, to which Banta did not agree.
6. The appellant further claimed that therefore on 15.04.1989 he forcibly entered into possession of the site in dispute against the wishes of Banta, filled up the site with earth by spending Rs.10,000/- from his own pocket, after which he raised construction on it in the shape of two rooms, a kitchen, a boundary wall, as were shown in the site plan annexed by the
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