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2022 Supreme(P&H) 2126
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Alka Sarin, J.
Mishat Girdhar – Appellant
Versus
Raj Kumari & Ors. – Respondents
RSA-1571 of 2020 (O&M)
Decided On : 08-08-2022
Mr. Kameshwar Gumber, Advocate, for the Appellant.
Pleading and proving fraud and establishing evidence for adverse possession are essential in property disputes.
Headnote:
Condonation of Delay - Civil Procedure - [CM-4944-C-2020] - [Section 5 of Limitation Act] - The court allowed the condonation of delay in re-filing the appeal for 12 days. The application for condonation of delay was allowed for the reasons mentioned in the application.
Fact of the Case:
The plaintiff filed a suit for mandatory injunction and recovery of damages against the defendant, seeking possession of a disputed house. The defendant's legal heirs filed a counter-claim, asserting adverse possession and ownership of the house.
Finding of the Court:
The Trial Court decreed the suit in favor of the plaintiff, which was upheld in the appeal. The courts rejected the defendant's claims of fraud and adverse possession, finding no evidence to support them.
Issues: The issues included entitlement to injunction and recovery of damages, adverse possession, maintainability of the suit, and valuation for court fee and jurisdiction.
Ratio Decidendi: The court emphasized the need for pleading and proving fraud, and the requirement of evidence to establish adverse possession. It found no infirmity in the lower courts' findings.
Final Decision: The regular second appeal was dismissed, and pending applications were disposed of.
JUDGMENT
Alka Sarin, J. (Oral) - CM-4944-C-2020
1. This is an application for condonation of delay of 12 days in refiling the appeal.
2. For the reasons mentioned in the application, the same is allowed and delay of 12 days in re-filing the appeal is condoned.
3. CM stands disposed off.
RSA-1571-2020
4. The present regular second appeal has been preferred by the defendant No.(i)-appellant against the concurrent findings of both the Courts below decreeing the suit for mandatory injunction and recovery of damages filed by the plaintiff-respondent No.1.
5. The brief facts relevant to the present lis are that on 19.11.2013 the plaintiff-respondent No.1 filed a suit for mandatory injunction for a direction to her son-in-law Madan Lal Girdhar to vacate and handover possession of the house in dispute and also sought recovery of damages @ Rs.10,000/- per month towards use and occupation of the house in dispute. It was pleaded that the house in dispute was purchased by the plaintiffrespondent No.1 vide sale deed dated 08.02.2000. Her daughter, Renu Bala, was married to the defendant Madan Lal Girdhar and out of that wedlock she had given birth to two children. Renu Bala is stated to have died on 03.09.2010. During the life time of Renu Bala, she and her husband i.e. the defendant Madan Lal Girdhar, had requested the plaintiff-respondent No.1 to allow them to live in her house i.e. the house in dispute with an assurance that they would vacate the same as and when required. It was further the case set up in the plaint that after the death of Renu Bala the behaviour of the defendant Madan Lal Girdhar changed and when the plaintiff-respondent No.1 requested him to hand over the possession of the house in dispute he started putting off the matter on one pretext or the other. Hence the suit.
6. During the pendency of the suit the defendant Madan Lal Girdhar expired and his legal heirs (son, daughter and daughter-in-law) were brought on the record. They filed a written statement and counter-claim taking preliminary objections regarding no cause of action, maintainability of the suit, etc. It was further pleaded that house had been purchased and constructed by defendant Madan Lal Girdhar with his own funds. However, the sale deed was got executed by the plaintiff-respondent No.1 in her favour by playing a fraud. It was further the case that the defendants had been enjoying peaceful possession of the house in dispute for the past 14/15 years and hence the same had ripened into ownership. Counter-claim was filed for a declaration to the effect that the defendants had become owners in possession of the house in dispute by way of adverse possession.
7. On the basis of pleadings of the parties, the following issues were framed by the Trial Court :
1. Whether plaintiff is entitled to the mandatory injunction as prayed for ? OPP
2. Whether the plaintiff is entitled to recover Rs.10,000/- per month for the use and occupation of the disputed house ? OPP
3. Whether the defendant/counter claimant have become owner by way of adverse possession of house in dispute as prayed for ? OPD
4. Whether the defendant/counter claimants are entitled to permanent injunction as prayed for ? OPP
5. Whether the suit is not maintainable in present form ? OPD
6. Whether the suit is not valued for the purpose of court fee and jurisdiction ? OPD
7. Whether the plaintiff is estopped by her own act or conduct from filing the present suit ? OPD
8. Whether counter-claim is not maintainable ? OPP
9. Relief.
8. The Trial Court decreed the suit of the plaintiff-respondent No.1
9. vide judgment and decree dated 22.05.2017. An appeal was preferred only by the defendant(i)-appellant (grandson of the plaintiff-respondent No.1) which appeal was dismissed vide judgment and decree dated 6.8.2019. The Courts below disbelieved the stand taken by the defendants that a fraud had been committed inasmuch as the ingredients of fraud were neither pleaded nor proved. The stand taken by the defendants that the sale de
